Kerala High Court
Vinod vs Shaji on 6 November, 2024
CRL.A NO. 950 OF 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
WEDNESDAY, THE 6
DAY OF NOVEMBER 2024 / 15TH KARTHIKA,
1946
CRL.A NO. 950 OF 2007
ST NO.110 OF 2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
AMBALAPUZHA
CRL.L.P.NO.205 OF 2007 OF HIGH COURT OF KERALA
APPELLANT/COMPLAINANT:
INOD,
V
VADAKKE THATTANDAY PARAMBU,
PURAKKAD, ALAPPUZHA.
BY ADV SRI.S.SANAL KUMAR
RESPONDENTS/ACCUSED & STATE:
1
HAJI,
S
S/O.KIZHAKKEDAM,
PURAKKAD, AMBALAPUZHA.
2
TATE OF KERALA,
S
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI.CYRIAC KURIAN
OTHER PRESENT:
PUBLIC PROSECUTOR-SRI.M.C.ASHI
THIS
CRIMINAL
APPEALHAVING
BEEN
FINALLY
HEARD
ON
06.11.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 950 OF 2007
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J U D G M E N T
This appeal is at the instance of thecomplainantinST
No.110 of 2005 on the file of Judicial First Class Magistrate
Court, Ambalappuzha, challenging acquittal of the accused
under Section 138 of the Negotiable Instruments Act
(hereinafter referred as 'the NI Act'), vide judgment dated
27.12.2006.
2. The case of the complainant was that the accused
borrowed Rs.1,00,000/- from him andissuedExt.P1cheque
dated 10.11.2004 towardsdischargeofthatdebt.Whenthe
cheque was presented before Bank, it was returned
dishonoured for the reason 'funds insufficient'. The lawyer
noticesentbythecomplainantwasacceptedbytheaccused
but the amount was not repaid. Hence the complaint.
3. After taking cognizance and on appearance of the
accused before the trial court, particulars of offence were
readoverandexplained,towhich,hepleadednotguiltyand
claimed to be tried. PW1 was examined and Exts. P1 to P5
were marked from the side of the complainant to prove his
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case.Onclosureofcomplainant'sevidence,theaccusedwas
questioned under Section 313 of Cr.P.C. He denied all the
incriminating circumstances brought on record and stated
that he had borrowed Rs.25,000/- from SNDP Branch
No.796, Purakkad-Karoor, after giving a blank cheque, as
security. He had received Exts.D1 and D2 notices from the
SNDP Branch, demanding exorbitant amounts. Since he
could not satisfy their demand, misusing the blank cheque
given as security at the time of availing the loan, a false
complaint wasfiledagainsthimunderSection138oftheNI
Act.
4.Onanalysingthefactsandevidence,andonhearing
the rival contentions from either side, the trial court found
that, the evidence adduced bytheaccusedwassufficientto
rebut the presumptions available in favour of the
complainant, and also found that the complainant failed to
prove that, Ext.P1 cheque wasissuedbytheaccusedtothe
complainant towards discharge of Rs.1,00,000/- allegedly
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borrowedbyhim.Aggrievedbytheacquittaloftheaccused,
the complainant has come up with this appeal.
5. Heard learnedcounselfortheappellant/complainant
as well as learned counsel for the 1st respondent/accused.
6. The definite case of the accused was that he had
borrowed Rs.25,000/- from SNDP Branch No.796 of
Purakkad-Karoor, on the security of a blank cheque.
According to him, Ext.P1 is the cheque which he had
entrusted withtheSNDPBranchasablankone,atthetime
of availing the loan. But the case of thecomplainantisthat
theaccusedborrowedRs.1,00,000/-fromhimasapersonal
loan, and he never borrowed any amount from the SNDP
Branch. But Exts.D1 and D2 notices produced by the
accused will cut at the root oftheappellant'scase,thatthe
transaction was a personal loan between himself and the
accused.
7.Exts.D1andD2noticeswouldshowthattheaccused
had availed loan No.306/99 from SNDP Branch No.796,
Purakkad-Karooron25.07.1999,onthesecurityofacheque
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and since he defaulted repayment, the borrowed amount
with penal interest was claimed from him.InExt.D1notice,
theamountclaimedwasRs.2,24,330/-,thoughtheprincipal
amount wasonlyRs.25,000/-.InExt.D2notice,theamount
claimed was Rs.3,79,110/-. There was a note below Ext.D2
notice,givinganoffertotheaccused,thatifhewasreadyto
pay Rs.1,06,250/- before 30.10.2004, he can be exempted
from payment of penal interest. Ext.D1 and D2 notices
coupled with the testimony of DW1 are sufficient to show
that the transaction was not a personal one between the
complainant and theaccused,anditwasaloantransaction,
availed by the accused from SNDP Branch No.796,
Purakkad-Karoor, on 25.07.1999.
8. PW1 admitted that he is the present secretary of
that SNDP Branch No.796, Purakkad-Karoor. He became
secretaryofthatBranchon27.07.2003,andonlythereafter,
Exts.D1 and D2 notices were sent to the accused. Though
the accused filed a petition for directing the SNDP Branch
No.796, Purakkad-Karoor, for producing the recordsrelating
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to loan account No.306/99, PW1 filed an affidavit stating
that, the old documents are not available in the SNDP
Branch. Obviously, suppressing the loan transaction the
complainant filed the complaint, misusing the security
cheque received by the SNDP, at the time of advancing the
loan amount.
9. In Exts.D1 and D2 notices, there was a clear
indication, that if the amount demanded was not paid, the
cheque leaf given by the 1st respondent will be presented
before the Bank. Ext.D2 notice is dated 09.10.2004.
Obviously,thechequewaswiththeSNDP,evenpriortothat
date. So the case of PW1 thatExt.P1chequewasissuedby
the 1st respondent on 10.11.2004, is negated by Exts.D1
and D2 documents.Moreover,thosenoticesaresufficientto
showthat,thechequewasreceivedassecurityforaloanof
Rs.25,000/- availed from SNDP on 25.07.1999. So, the
accused succeeded in rebutting the presumptions available
infavouroftheappellant,andthereisnothingtoshowthat,
therewasanyloantransactionbetweenthecomplainantand
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the accused or to show that the accused issued Ext.P1
cheque towards discharge of any debt due to the
complainant. So this Court finds no reason to interferewith
the acquittal of the accused by the trial court. So the
impugned judgment is only to be upheld.
The appeal fails. Hence dismissed.
d/-
S
SOPHY THOMAS
JUDGE
DSV/-
