Kerala High Court
Bahuleyan vs Thulaseedas on 23 September, 2024
CRL.A NO. 1322 OF 2007
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2024:KER:71424
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
RD
MONDAY, THE 23 DAY OF SEPTEMBER 2024 / 1ST ASWINA, 1946
CRL.A NO. 1322 OF 2007
AGAINST THE JUDGMENT DATED 29.06.2007 IN Crl.L.P. NO.417 OF 2007 OF HIGH
COURT OF KERALA ARISING OUT OF THE ORDER/JUDGMENT DATED IN CC NO.55 OF 2007 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -III, KOTTARAKAKARA
APPELLANT/PETITIONER/COMPLAINANT:
BAHULEYAN
BINDHU BHAVAN, VAIDHYANKUNNU, VALIYODU P.O.,, VELIYAM VILLAGE,
KOTTARAKKARA TALUK, KOLLAM DIST.
BY ADV SRI.C.RAJENDRAN
RESPONDENTS/RESPONDENTS/ACCUSED & STATE:
1 THULASEEDAS
KILITHATTIL VEEDU, KAITHAYIL, NETTAYAM P.O.,, ELAMADU VILLAGE,
KOTTARAKKARA TALUK,KOLLAM DIST.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADVS.
SRI.B.MOHANLAL
SRI.T.PRASAD
SRI.SAIJU S.
OTHER PRESENT:
PP-SRI.M.C.ASHI
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
23.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1322 OF 2007
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SOPHY THOMAS, J.
=====================
Crl. Appeal No. 1322 of 2007
========================
JUDGMENT
Dated this the 23rd day of September, 2024
This appeal is at the instance of the complainant in C.C. No. 55
of 2007 on the file of Judicial Magistrate of First Class-III,
Kottarakkara challenging acquittal of the accused in a complaint
filed by him under Section 138 of the Negotiable Instruments Act
(for short, "the NI Act") as per judgment dated 07.05.2007.
2. The case of the complainant is that, the accused borrowed
Rs.3 lakh from him, and towards discharge of that debt, he issued
Ext.P1 cheque dated 18.11.2004, drawn on Kollam District
Co-operative Bank, Pallimukk branch. That cheque was dishonoured
for the reason 'funds insufficient'. He sent Ext.P4 lawyer notice on
17.01.2005. Though the accused received that notice on
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12.01.2005, he neither sent any reply nor repaid the amount. So,
he filed a complaint against him under Section 138 of the NI Act.
3. The accused appeared on summons and pleaded not guilty,
and claimed to be tried. PWs 1 and 2 were examined and Exts. P1
to P6 were marked from the side of the complainant. On closure of
complainant's evidence, the accused was questioned under Section
313 of Cr.P.C. He denied all the incriminating circumstances
brought on record, and stated that the complainant was a usual
visitor in his family temple, and house as a Bagavathar. He
deceitfully took his cheque leaf and presented it before bank. He
never signed or issued that cheque to the complainant towards
discharge of any legally enforceable debt.
4. On an anxious consideration of the facts and evidence, and
on hearing the rival contentions from either side, the trial court
found that Ext.P1 cheque was not supported by any consideration,
and the admitted signature of the accused had no resemblance with
the signature seen in Ext.P1 cheque. So the execution of Ext.P1
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cheque could not be proved by the complainant, and there was
nothing to show that the complainant was having financial resources
to advance Rs.3 lakh to the accused. Finding that the complainant
failed to establish an offence punishable under Section 138 of the NI
Act against the accused, he was acquitted under Section 255(1)
Cr.P.C. against which this appeal has been preferred by the
complainant.
5. Heard learned counsel for the appellant/complainant and
learned counsel for the 1st respondent/accused.
6. The alleged transaction was in the year 2004, and the
amount involved was Rs.3 lakh, which was a substantial amount.
The appellant has not stated in the complaint, for what purpose the
accused borrowed Rs.3 lakh from him. The date of such advance
also will not find a place in the complaint. It is difficult to believe
that in the year 2004, the complainant advanced Rs.3 lakh to the
accused without receiving any document to support that
transaction. Moreover, the accused is challenging the financial
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capacity of the complainant to advance that much of amount in the
year 2004. PW1, the complainant admitted before Court that he
was a Bhagavathar and he was reciting Bhagavatham in temple,
and he may do that job for maximum ten days in a month, and he
may get maximum amount of Rs.4,000/- as his monthly income.
He would say that, he borrowed Rs.1 lakh each, from a friend and
his sister, and availed loan of Rs.1 lakh from a bank for conducting
marriage of his daughter, and using that amount, Rs.3 lakh was
advanced to the accused. PW2 his sister was examined to say that
she had advanced Rs.1 lakh to the complainant. But she also did
not have that amount, and she borrowed that amount from another
person.
7. The case set up by the complainant is difficult to be
swallowed without a pinch of salt. There is no cogent evidence
inspiring confidence of the court to show that the complainant was
having Rs.3 lakh with him for giving it to the accused. Moreover,
the admitted sigature of the accused is entirely different from the
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signature seen in Ext.P1 document, though the cheque was
dishonoured for the sole reason of insufficiency of funds.
So this Court is of the view that, the trial court correctly
appreciated the evidence and acquitted the accused. The appeal
fails, and hence dismissed.
SD/-
SOPHY THOMAS
JUDGE
RMV
