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2017 DIGILAW 1060 (KER)

Gurudevan Enterprises v. T. K. Balakrishnan

2017-07-21

P.UBAID

body2017
JUDGMENT : P. Ubaid, J. 1. The appellant herein is the complainant in S.T. No. 941/2008 of the Judicial First Class Magistrate Court-II, Palakkad, and the first respondent herein is the accused in the said case. The complainant claims to be a partnership firm, represented by the Managing Partner. The complainant brought the said prosecution under Section 138 of the Negotiable Instruments Act on the allegation that two cheques for Rs. 1,16,000/- (Rs. 1,00,000 + Rs. 16,000) issued by the accused in discharge of the amount borrowed by him from the complainant were bounced due to insufficiency of funds in the account of the accused, and in spite of statutory notice, the accused failed to make payment of the cheque amount. The accused appeared before the learned Magistrate, and pleaded not guilty when the particulars of the offence was read over and explained to him. The complainant examined PW1, and proved Exts. P1 to P9 documents. PW1 is the so called Managing partner of the complainant firm. The accused denied the incriminating circumstances, when examined under Section 313, Cr.P.C. He projected a defence that he had not borrowed any amount from PW1, that he had dealings with M/s. Gurudevan Enterprises, and that the cheques in question were in fact handed over to the said firm as security in the course of the business transactions. Thus, his definite case is that the cheques in question were not in fact executed and issued in discharge of any amount borrowed from PW1 personally. However, the accused did nut adduce any evidence in defence. On an appreciation of the evidence, the trial Court found that PW1 who claims to have lent money personally to the accused cannot claim the amount due to the firm, and that the transaction of borrowal actually stands not proved. 2. Accordingly, the learned Magistrate found the accused not guilty, and acquitted the accused by judgment dated 28.6.2010. Aggrieved by the judgment of acquittal, the complainant brought this appeal with the leave of this Court under Section 378(4), Cr.P.C. 3. On hearing both sides, and on a perusal of the materials, I find that the accused was rightly acquitted by the trial Court. The case of the complainant is that the amount of Rs. 1,16,000/- is due to the complainant firm. The Exts. P1 and P2 cheques are in fact two cheques issued in favour or the complainant firm. On hearing both sides, and on a perusal of the materials, I find that the accused was rightly acquitted by the trial Court. The case of the complainant is that the amount of Rs. 1,16,000/- is due to the complainant firm. The Exts. P1 and P2 cheques are in fact two cheques issued in favour or the complainant firm. The making or authorship of these two cheques is admitted by the accused, subject his contention otherwise that these cheques were in fact handed over to the firm, and not to the complainant personally. Now the question is whether the amount covered by the two cheques is in fact due to PW1 personally, or whether it is due to the firm which he represents as managing partner. In the affidavit filed by PW1 in lieu of examination-in-chief his case is that the amount was borrowed by the accused on 28.2.2007 but, when cross-examined about the details of transactions he said that money was borrowed by the accused on 22.3.2007. He affirmed in evidence that the money was in fact lent by him personally, and not as managing partner of the complainant firm. If his case is true, that it was lent by him personally, or that that it was a personal transaction, there is no explanation how the two cheques happened to be issued in the name of the firm. Anyway, the two cheques will show that if at all the cheques are supported by consideration, or enforceable under the law, the money must be due to the firm. This amount cannot be claimed by PW1 personally. The claim of PW1 is not that the money covered by the Exts. P1 and P2 cheques is the amount due to the firm. This is not a prosecution brought by PW1 personally on the basis of any cheque issued to him personally. Thus, I find that the transaction allegedly by the complainant in the complaint stands not proved in any manner. The Court below rightly found that PW1 has failed to prove a legally enforceable debt due to him. In the result, this appeal is dismissed.