IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1696 of 2003()
1. V.V.VENUGOPAL, SECRETARY,
... Petitioner
Vs
1. THOLOPORU ASHRAF, S/O.MUHAMMED,
... Respondent
2. STATE OF KERALA REP. BY THE
For Petitioner :SRI.WILSON URMESE
For Respondent :SRI.P.SAMSUDIN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :15/09/2008
O R D E R
V.K. MOHANAN, J.
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Crl. Appeal No 1696 of 2003
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Dated this the 15th September 2008
JUDGMENT
This appeal is preferred by the complainant in S.T. Case No
4275 of 1997 on the file of the Judicial First Class Magistrate I,
Perinthalmanna challenging the order of acquittal passed by the
court below as per judgment dated 22.02.2003.
2. P.W.1, Secretary of Perintalmanna Rural Housing Co-
operative Society Limitted, is the complainant. Accused was a
member of the Society and he availed of a loan of Rs 35,000/- for
constructing a house, but failed to repay the loan amount and the
complaint filed ARC 940/96-97 which was decreed in favour of the
complainant. Ext P1 is a copy of the award as per which the liability
of the accused is fixed as Rs 39,235.80. It is the further case of the
complainant that in order to discharge that debt accused issued Ext
P2 cheque for a sum of Rs 39,235.80 drawn on the Pattikad Service
Co-oiperative Bank Limited and when it was presented for
encashment before the Malappuram District Co-operative Bank the
same was returned by the drawee Bank with the endorsement “funds
CrlA.No 1696/03 2
insufficient”. On receiving Ext P3 memo P.W.1 sent a lawyer notice
calling upon the accused to pay the amount to which there was no
response from the accused. Thereafter formal complaint was filed
on the basis of which cognizance was taken by the court below.
When the accused appeared before the court below particulars of
the charge were read over and explained to him to which he pleaded
not guilty. Consequently trial was proceeded. P.W.1 was examined
on the side of the complainant and Exts P1 to P5 were marked as
documentary evidence. Specific stand taken by the accused at the
time of trial is that at the time of paying the third instalment of the
loan amount, the complaint Board demanded a cheque and for giving
a cheque the accused opened a new account at the Pattikad Service
Co-operative Bank and on that day itself the cheque was given. It is
also the case of the accused that his property was already attached
by the complainant Society. To prove the case of the accused he
himself was examined as D.W.1. After elaborate consideration of the
materials and evidence the court below came to the conclusion that
the accused had discharged his liability and that no offence under
Section 138 of the Negotiable Instruments Act would lie against the
accused. The court below thus found the accused not guilty and he
CrlA.No 1696/03 3
was acquitted. The above order of acquittal is challenged in this
appeal.
3. I have heard the counsel for the appellant and perused the
evidence and materials available on record. The transaction alleged
by the complainant has been admitted. It is the further case of the
defence that the cheque in question was issued at the time of
realisation of the third instalment of ;the loan and for that purpose he
had opened an account with Pattikad Service Co-operative Bank and
on that day itself the cheque in question was given. The court below
after appreciating the entire evidence found that the house and the
property of the accused was sold in auction after obtaining an
award from the ARC and the complainant Society took the property
in auction. It was also found by the court below that the complainant
has no case that after taking the property in auction there is anything
balance towards the housing loan availed of by the accused. The
court below also found that from the evidence it could be seen that
by selling the property of the accused the entire amount due to the
Board had been recovered. The evidence of D.W.1 and Exts D1 and
D2 would prove that the accused opened an account for giving Ext
P2 cheque to the Housing Board. The evidence of P.W.1 would
CrlA.No 1696/03 4
clearly show that the accused discharged his liability. The only point
urged by the complainant before the court below is that even after
the execution of the order of the civil court the accused is liable for
offence under Section 138 of the Negotiable Instruments Act.
Rejecting the above contention the court below found that liability of
the appellant is over by selling his property. Learned counsel for the
appellant submitted that the above finding of the court below is not
supported by any evidence. But the learned counsel failed to point
out any evidence adduced by the complainant against the above
finding of the court below. After all this is an appeal against an order
of acquittal. It is a case where, as already found by the court below,
the liability has already been discharged by the accused, that too at
the instance of the complainant by selling the property in auction. It
has also come out in evidence that it is not in controversy that Ext P2
cheque was issued by the accused even before the entire loan
amount was released, but particularly at the time of releasing the
third instalment. It is for that purpose only he had opened an
account and on which date itself cheque was given to the
complainant. The above facts cast a doubt regarding the
genuineness of the prosecution case as such. However the court
CrlA.No 1696/03 5
below after elaborately considering the materials on record came to
the conclusion that the accused had discharged his liability and
therefore no offence under Section 138 of the N.I Act would lie. No
ground is made out to interfere with the order of acquittal passed by
the court below. Therefore the appeal is devoid of any merit and the
same deserves to be dismissed.
In the result, the appeal is dismissed as devoid of any merit.
Sd/-
V.K. MOHANAN
Judge
15/09/2008
en
[true copy]