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2011 DIGILAW 993 (KAR)

Harischandra Puthran v. Venugopal Kotian

2011-10-12

A.S.PACHHAPURE

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JUDGMENT : A.S. Pachhapure, J. 1. The appellant has challenged an Order of acquittal of the respondent for the charge u/s 138 of the Negotiable Instruments Act. [hereinafter called as "the Act" for short]. 2. The facts relevant for the purpose of this appeal is as under: There was a sale transaction of the boat and the accused i.e., the respondent herein had issued a cheque for Rs. 9,500-00 dated 30.01.2002 towards the amount due under the sale transaction. On presentation of the said cheque for encashment, it returned with an endorsement of insufficient funds. The appellant i.e., the complainant before the trial Court issued a notice on 12.02.2002 calling upon the respondent/accused to make the payment as demanded in the notice. As there was no compliance, the appellant submitted a complaint u/s 200 Criminal Procedure Code to initiate action for the aforesaid offence. The respondent appeared before the trial Court. The appellant was examined as P.W. 1 and got marked the documents Exs. P1 to 5. The statement of the respondent was recorded u/s 313 Criminal Procedure Code The respondent examined himself as D.W.1 and witnesses D.Ws. 2 to 6 and got marked the documents Exs. D1 to 6. The trial Court after hearing the learned counsel for the parties and on appreciation of the material on record convicted the appellant for the aforesaid charge and ordered simple imprisonment for a period of one month and to pay compensation of Rs. 12,500-00. Aggrieved by the acquittal, an appeal came to be preferred by the respondent before the Sessions Judge in Crl.A. No. 373/2004. After hearing the counsel, the appeal came to be allowed on the ground that there was no existing debt or liability and the respondent was acquitted of the charge u/s 138 of the Act. Against the order of acquittal, the present appeal has been filed. 3. I have heard the learned counsel for the appellant. The learned counsel for the respondent is absent. 4. The point that arises for my consideration is; Whether the appellant has made out any grounds to interfere in the Order of acquittal for the charge u/s 138 of the Act? 5. As claimed by the appellant in the complaint filed, the amount of Rs. 9,500-00 issued under the cheque dated 30.01.2002 was towards the amount due under the sale transaction of the boat. 5. As claimed by the appellant in the complaint filed, the amount of Rs. 9,500-00 issued under the cheque dated 30.01.2002 was towards the amount due under the sale transaction of the boat. The appellant had purchased the boat viz., Raktheswari, reg. No. KDT 1747 under the Agreement of Sale dated 28.09.2001. It is relevant to note that in this Agreement of Sale at Ex. D4, in para the First Party had agreed to sell to the Second Party the fishing boat referred to supra for a consideration of Rs. 1,20,000-00. In para 2, it is stated that the Second Party on that day paid the First Party the entire sale price of Rs. 1,20,000-00, which amount the First Party hereby acknowledged receipt of the same in full quittance of the agreed sale price. So, as could be seen from this agreement and clause 2 of the said agreement, the amount of sale consideration was fully paid on 28.09.2001 and nothing was due to the appellant under the sale transaction. In the circumstances, the allegations in the complaint that the cheque was issued by the respondent for a sum due under the sale transaction cannot be accepted. 6. Furthermore, it is the defence of the accused that the complainant had to pay some amount to Revathi Puthran, the erstwhile owner of the said boat and at the request of the appellant, the respondent had issued a blank cheque for payment of the amount to the said Revathi Puthran and the said cheque has been misused by the appellant and the same was presented to the bank for encashment. So, when nothing was due under the sale transaction of the boat, there is no existence of any debt or liability and in the circumstances, the question of issuing the cheque-Ex. P1 for Rs. 9,500-00 does not arise. Even as could be seen from the concents of the cheque the signatory is not the parson, who has filled the contents of the cheque as the handwriting of the contents is different from the one used for the signature. Thereby, an inference could be drawn that a blank cheque was issued by the respondent and the same has been misused by the appellant stating that it has been issued towards part payment of the dues under sale transaction of the boat, though in fact, the appellant had received Rs. Thereby, an inference could be drawn that a blank cheque was issued by the respondent and the same has been misused by the appellant stating that it has been issued towards part payment of the dues under sale transaction of the boat, though in fact, the appellant had received Rs. 1,20,000-00 and had admitted the receipt of the sum in clause 2 of the Sale Agreement at Ex. D4. 7. This is an appeal against the acquittal. The appellate Court will be slow in interfering with the said Order. Even if a second view is possible, one accepted by the trial Court cannot be disturbed. In the circumstances, I am of the opinion that the appellant has not made out any such grounds to warrant interference. In the result, the appeal is dismissed.