Kerala High Court
Radhamani vs Remakanthan And Another on 3 September, 2024
CRL.A NO. 1632 OF 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
RD
TUESDAY, THE 3
DAY OF SEPTEMBER 2024 / 12TH BHADRA,
1946
CRL.A NO. 1632 OF 2007
rl.L.P. NO.301 OF 2007 OF HIGH COURT OF KERALA
C
CC NO.936 OF 2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
ATTINGAL
APPELLANT/COMPLAINANT:
ADHAMANI, D/O.KUNJI,
R
THOMAS NIVAS, POOVAMPARA, ALAMCODE VILLAGE.
BY ADV SRI.J.JAYAKUMAR
RESPONDENTS/ACCUSED AND STATE:
1
EMAKANTHAN,
R
S/O.SADANANDAN,
ROHINI NIVAS, MAIPPALLI-ELA,
AYILAM DESOM, MUDAKKAL VILLAGE.
2
TATE OF KERALA,
S
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
Y ADVS.
B
SMT.K.AMMINIKUTTY
SRI.N.RAGHURAJ
OTHER PRESENT:
PUBLIC PROSECUTOR-SRI.M.C.ASHI FOR R2
THIS
CRIMINAL
APPEALHAVING
BEEN
FINALLY
HEARD
ON
03.09.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
This appeal is at the instance of the complainant in
C.C.No.936 of 2004 on the file of Judicial First Class
Magistrate Court-I, Attingal, challenging acquittal of the
accused,inacomplaintfiledbyherunderSection138ofthe
Negotiable Instruments Act (hereinafter referred as 'the NI
Act'), as per judgment dated 30.11.2006.
2.Thecaseoftheappellant/complainantisthatthe1st
respondent/accused borrowed Rs.15,000/- from her on
29.01.2004 and issued Ext.P1 cheque dated 29.03.2004
drawn on South Indian Bank, Attingal Branch towards
discharge of that debt. On sending that cheque for
collection, it was returned for the reason 'not arranged for',
as per Ext.P2 memo dated 20.07.2004. She sent statutory
notice intimating dishonour of the cheque and demanding
the cheque amount. Though the accused sent a reply, the
amount was not repaid. Hence she filed the complaint.
3. After taking cognizance of the offence, the accused
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appeared before the trial court and pleaded not guilty, and
claimed to be tried. PW1 was examined, and Exts.P1 to P6
weremarkedfromthesideofthecomplainant.Onclosureof
the evidence from the side of the complainant, the accused
was questioned under Section 313 of Cr.P.C. He denied all
the incriminating circumstances brought in evidence, and
according to him, in an earlier money transaction between
himself and the complainant, he had given a blank signed
cheque after writing the amount alone. Even after repaying
that amount with interest, the cheque was not returned.
When he approached the son ofthecomplainantforgetting
backthecheque,heassaultedhimon21.06.2003,forwhich
a criminal case was registered against him. He did not
borrow any amount from the complainant on 29.01.2004
and never issued any cheque dated 29.03.2004 towards
discharge of that debt. DWs1 and 2 were examined and
Exts.D1 to D7 were marked fromthesideoftheaccusedto
substantiate his case.
4.Onanalysingthefactsandevidence,andonhearing
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the rival contentions from either side, the trial court found
that the complainant failed to prove that she advanced
Rs.15,000/- to the accused on 29.01.2004, and issued
Ext.P1chequetowardsdischargeofthatdebtandtherewas
no chance for the accused to go to the house of the
complainant on 29.01.2004. So the accused was acquitted,
against which, this appeal has been preferred by the
complainant.
5. When the appeal was taken up for consideration,
there was no representation from the part of the appellant
and so, Adv.Sri.Amal Baby was appointed as Amicus Curiae.
6. Heard learned Amicus Curiae for the appellant and
learned counsel for the 1st respondent/accused.
7. Learned Amicus Curiae would submit that the
accusedisadmittinghissignatureinExt.P1cheque,andalso
the amount mentioned therein. So, the presumption under
Section 139 of the NI Act will come to the aid of the
complainant, to hold that the accused issuedExt.P1cheque
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towards discharge of the debt, due to the complainant. But
learned counsel for the 1st respondent would contend that,
that presumption will be attracted, unless the contrary is
proved by the accused.
8. Learned counsel for the 1st respondent/accused
wouldrelyonExts.D1toD7documentsandthetestimonyof
DW2-Doctor, to show that on 21.06.2003, the accused was
assaultedbySri.Sujith,thesonofthecomplainant,whowas
working in CRPF, and the accused had gone to Government
Hospital, Chirayinkeezhu, for treatment. DW2-the Assistant
Surgeon of the Taluk Headquarters Hospital,
Cherayinkeezhu, deposed before court that on 21.06.2003,
at 8.00 p.m., he had examined Mr.Ramakanthanandissued
Ext.D7 wound certificate, noting abrasion with contusion on
the left forearm. DW1-the accused deposed before court
that, though he complained before Police regarding that
incident, no case was registered by Police and so, he
preferred a private complaint before Judicial First Class
Magistrate Court-I, Attingal, and it was forwarded under
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Section156(3)ofCr.P.C.,andacrimewasregisteredagainst
theaccused.Butafterinvestigation,Policereferredthatcase
and so, he filed Ext.D3 protest complaint.
9. The definite case of the accused was that he had
borrowed Rs.15,000/- from thecomplainanton16.04.2003,
after giving a signed blank cheque by writing the amount
alone. He repaid that amount with interest on 17.05.2003.
But the cheque was not returned.Thecomplainanttoldhim
thatthechequewaswithhisson-Sujith,whowasworkingin
CRPF in UP. When he reached home in June, 2003, the
accused approached him for getting back the cheque, and
then he assaulted the accused. Exts.D1 to D7 documents
substantiate the case of the accused.Ifacriminalcasewas
registered against sonofthecomplainantforassaultinghim
on 21.06.2003, there was no chance forthecomplainantto
advance Rs.15,000/- on 29.01.2004. According to the
accused, since a criminal case was filed against son of the
complainant, she misused the blank cheque given by him,
and filed a complaint against him under Section 138 of the
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NIAct.Thecaseputforwardedbytheaccused,coupledwith
Ext.D1 to D7 documents, are sufficient to rebut the
presumption available in favour of the complainant under
Section 139 of the NI Act. Since the complainant failed to
prove that Rs.15,000/- wasadvancedbyhertotheaccused
on 29.01.2004, and Ext.P1 cheque was issued towards
discharge of that debt, the acquittal of the accused by the
trial court is not liable to be interfered with.
In the result, the appeal is dismissed upholding the
impugned judgment.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
