Kerala High Court
Sodaran vs Krishnan & Another on 30 August, 2024
2024:KER:66032
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 30TH DAY OF AUGUST 2024 / 8TH BHADRA, 1946
CRL.A NO. 1073 OF 2007
AGAINST THE JUDGMENT IN Crl.L.P. NO.307 OF 2007 OF HIGH COURT OF KERALA
ARISING OUT OF THE JUDGMENT DATED 20.03.2007 IN CC NO.938 OF 2003 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I, PUNALUR
APPELLANT:
SODARAN, S/O KANNAN, SREEKRISHNA NILAYAM,
THAZHAMEL, ANCHAL, PATHANAPURAM TALUK.
BY ADV SRI.SHABU SREEDHARAN
RESPONDENTS:
1 KRISHNAN, S/O LEKSHMANAN,
POONKOTTU VEEDU, PALLIMAN, KOLLAM.
2 STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADVS.
PUBLIC PROSECUTOR
ALAN PAPALI
M.REVIKRISHNAN
PP-SMT.SEENA C.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.08.2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
This Appeal is at the instance of the complainant in C. C. No. 938 of 2003 on the file of Judicial First Class Magistrate - I, Punalur assailing acquittal of the accused, in a complaint filed by him under Section 138 of the Negotiable Instruments Act (N.I. Act for short) as per Judgment dated 20.03.2007.
2. The case of the appellant/complainant was that, on 04.04.2003, accused reached his office and borrowed an amount of Rs. 12,00,000/- (Rupees Twelve lakhs only) and issued Ext. P1 cheque dated 04.11.2003 drawn on State Bank of Travancore, Nallila Branch, assuring him that it would be encashed on presentation before the Bank. Accordingly, the complainant presented the cheque before the Bank on 04.11.2003 and, it was returned dishonoured for the reason 'insufficient funds' as per Ext. P2 dishonor memo dated 11.11.2003 and intimation was received from his Bank on 14.11.2003 as per Ext. P3. On 19.11.2003, he CRL. A. NO. 1073 OF 2007 3 2024:KER:66032 sent Ext. P4 statutory notice intimating dishonor of the cheque and demanding the cheque amount. Ext. P5 is the postal receipt. Though the accused received the notice and sent a reply, the amount was not repaid. Hence, he filed the complaint under Section 138 of the N. I. Act.
3. On taking cognizance of the offence and on appearance of the accused before the Trial Court, particulars of offence was read over and explained, to which he pleaded not guilty. Thereupon, PW1 was examined and Exts. P1 to P7 were marked from the side of the complainant. On closure of evidence of the complainant, accused was questioned under Section 313 of Cr. PC. He denied all the incriminating circumstances brought on record and according to him, he never borrowed Rs. 12,00,000/- (Rupees Twelve lakhs only) from the complainant and never issued Ext. P1 cheque towards discharge of any debt. According to him, it was given as a security, in a transaction between one Mr. Ajayakumar who was a benami of the complainant and his wife Mrs. Deepthy CRL. A. NO. 1073 OF 2007 4 2024:KER:66032 Krishnan regarding sale of her half right over a Crusher Unit. DW1 was examined and Exts. D1 to D7 were marked from the side of the accused.
4. On analysing the facts and evidence and on hearing the rival contentions from either side, the Trial Court found that, Ext. P1 cheque was not issued towards discharge of any legally enforceable debt and so, the accused was acquitted, against which the complainant has preferred this appeal.
5. Heard learned Counsel for the appellant as well as learned Counsel for the 1st respondent/accused.
6. Learned Counsel for the appellant would submit that, the accused borrowed Rs. 12,00,000/- (Rupees Twelve lakhs only) from the complainant on 04.04.2003 and on the same day, he issued a post dated cheque, bearing date 04.11.2003 towards discharge of that debt. That cheque was dishonoured for insufficiency of funds and in spite of receipt of statutory notice, the accused did not repay that CRL. A. NO. 1073 OF 2007 5 2024:KER:66032 amount and hence he filed the complaint.
7. Learned Counsel for the 1 st respondent/accused would contend that, the accused never borrowed Rs. 12,00,000/- (Rupees Twelve lakhs only) from the appellant/complainant, and no evidence is there to show that the complainant was having Rs. 12,00,000/- (Rupees Twelve lakhs only) with him, on 04.04.2003.
8. The case of the complainant was that, he handed over Rs. 12,00,000/- (Rupees Twelve lakhs only) in cash to the accused. According to him, there is cash book and day book in his Office to show that he was having Rs. 12,00,000/- (Rupees Twelve Lakhas only) with him on 04.04.2003. But, no such documents were produced by the complainant to substantiate his case. According to him, his Bank account will show withdrawal of huge amounts from his account. As a business man, he may be having so many financial transactions, but there is no explanation for giving a huge amount like Rs. 12,00,000/- (Rupees Twelve lakhs CRL. A. NO. 1073 OF 2007 6 2024:KER:66032 only) in cash, without transferring that amount through his account or through cheque.
9. Even when the complainant admitted that he is a tax payer, he would say that, during the financial year 2003-04, he did not file any income tax return. If he had paid Rs. 12,00,000/- (Rupees Twelve lakhs only) to the accused on 04.04.2003, definitely that will find a place in his income tax return filed for that period. The accused would say, since there was no such transaction, the complainant was suppressing the factum of filing income tax return during that period. Even according to the complainant, except Ext. P1 cheque, there is no other document to show that he had advanced Rs. 12,00,000/- (Rupees Twelve lakhs only) to the accused. When such a huge amount was given as a hand loan to the accused, definitely there should have been some documents to prove that transaction. So also, the case of the complainant is not inspiring confidence of this Court.
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10. The definite case of the accused from the very inception is that, his wife Mrs. Deepthy Krishnan and one Mr. Abdul Khader was running a Crusher Unit by name 'K. K. Industries'. She entered into a sale agreement with one Mr. Ajayakumar, who was a benami of the complainant, to sell her half right over the Crusher Unit and after deducting the liability towards KFC, her share was valued @ Rs. 21,50,000/- (Rupees Twenty one lakh fifty thousand only). Rs. 12,00,000/- (Rupees Twelve lakhs only) was the advance amount as per Ext. D7 sale agreement. DW1, the accused deposed that, though it is mentioned in Ext. D7 agreement that, advance amount of Rs. 12,00,000/- (Rupees Twelve lakhs only) was received in currency, in fact, it was given as a cheque issued by the complainant for Rs. 12,00,000/- (Rupees Twelve lakhs only) in favour of the accused, and Ext. D1 is that cheque. The complainant admitted that Ext. D1 cheque was drawn from his Bank account and he admitted his signature also in that cheque. But according to him, that cheque leaf was lost from his CRL. A. NO. 1073 OF 2007 8 2024:KER:66032 Office and so he denied to have issued that cheque to the accused. According to accused, on receipt of Ext. D1 cheque for Rs. 12,00,000/- (Rupees Twelve lakhs only) as advance amount for Ext. D7 agreement, as a security for that amount and also as a guarantee for due performance of the agreement, he had issued Ext. P1 cheque for Rs. 12,00,000/- (Rupees Twelve lakhs only) without putting the date. When he approached the Bank for encashing Ext. D1 cheque received towards advance amount, the complainant and Mr. Ajayakumar approached him to say that, they are withdrawing from the agreement, and so he may not encash Ext. D1 cheque. The endorsement on the back side of Ext. D1 cheque would show that the accused had presented the cheque before Federal Bank, Anchal Branch which will substantiate his case that he had presented that cheque before the Bank. Mr. Ajayakumar filed a civil case against the wife of the accused, Mrs. Deepthy Krishnan for specific performance of Ext. D7 agreement and Ext. D4 is the copy of written statement filed by her in that suit. Ext. CRL. A. NO. 1073 OF 2007 9
2024:KER:66032 D3 is the copy of lawyer's notice sent by the accused and his wife to the complainant and Mr. Ajayakumar in which the whole transaction between them is detailed. Execution of Ext. D1 cheque by the complainant for giving advance amount mentioned in Ext. D7, and the circumstances under which the accused issued Ext. P1 cheque without putting the date etc. are mentioned therein in clear terms. Learned Counsel for the 1st respondent/accused would point out that, in the complaint, the date of Ext. P1 cheque is not mentioned, which will substantiate his case that Ext. P1 cheque was given as a security without putting the date. In Ext. D7 agreement, the accused is a witness also.
11. There is no cogent evidence to show that the complainant was having Rs. 12,00,000/- (Rupees Twelve lakhs only) with him on 04.04.2003 and there is no document to prove that the complainant advanced Rs. 12,00,000/- (Rupees Twelve lakhs only) to the accused. According to the accused, Ext. D1 cheque was kept signed by him in his Office, and when it was found lost he informed CRL. A. NO. 1073 OF 2007 10 2024:KER:66032 the Bank. But, no scrap of paper has been produced by him to show that he had informed the Bank regarding loss of any cheque leaf from his Office.
12. Ext. D7 agreement is dated 14.04.2003. Ext. D1 cheque also is dated 14.04.2003 i.e. the date of agreement itself. Ext. D1 cheque admittedly belongs to the complainant. If he had no connection with Ext. D7 agreement, there cannot be a cheque drawn from his account, exactly for the same amount of advance money shown in Ext. D7 and executed on the same date. So it probabilises the case of the accused that, towards security for the advance amount and for due performance of Ext. D7 agreement, Ext. P1 cheque from his account was given to the complainant, who was a benami for Mr. Ajayakumar, a party in Ext. D7. The available facts and circumstance are also suggestive of the fact that, as a security for the advance amount and also for the due performance of the agreement, the accused had issued Ext. P1 cheque in favour of the complainant, and it was not towards discharge CRL. A. NO. 1073 OF 2007 11 2024:KER:66032 of any debt due from him. The Trial Court correctly appreciated the facts and evidence to find the accused not guilty under Section 138 of the N. I. Act. As there is no reason to interfere with the findings of the Trial Court, the acquittal of the accused is only to be upheld, .
The appeal fails and hence dismissed.
Sd/-
SOPHY THOMAS, JUDGE Svn