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2019 DIGILAW 521 (KER)

K. S. Suju v. O. Saji, S/o. Kutti Narayanan Nair

2019-07-03

ASHOK MENON

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JUDGMENT : The appellant is the complainant in C.C.No.458/2002 on the file of the Judicial First Class Magistrate Court, Palakkad, who is aggrieved with the acquittal of the accused under Section 255(1), Cr.P.C., by the learned Magistrate vide the impugned order dated 31.01.2006, for an offence punishable under section 138 of the Negotiable Instruments Act(for short “N.I. Act”). 2. The complainant's case in brief is thus: The accused, 1st respondent, allegedly borrowed a sum of Rs.80,000/- on 20.03.2002 from the complainant promising to repay the same within a month. On demand, the accused had allegedly issued a cheque drawn on his account maintained in State Bank of India, Guruvayur Branch dated 08.05.2002. Ext.P1 cheque was dishonoured for want of sufficient fund. Exts.P2 and P3 are the dihonour memo and the intimation respectively. Statutory notice was issued demanding the cheque amount, copy of which is Ext.P4 and Ext.P5 postal receipt evidences despatch. The accused has accepted the notice as per Ext.P6 acknowledgment card, and sent a reply as Ext.P7, denying the transaction in toto. He contends that, being a businessman, he had some dealings with a person named Shobby and as security, handed over three blank cheque leaves to him together with a stamp paper. One of which has been misused by the complainant and another was misused by a person named Dharman, who too filed a complaint before the court. But soon withdrew the said complaint on realising the true state of affairs. The accused was examined as PW1, Ext.D2 is the copy of complaint allegedly filed by Dharman and Ext.D3 is a book in which details regarding the daily collection by one Ravi, who too used to supply goods together with Shobby. The third cheque was also misused and a complaint was filed. Ext.D4 is the copy of that cheque. Exts.D5 to D9 are dishonour memos, copy of notice and postal receipt as well as the affidavit in lieu of chief examination in that case. The accused had also testified that the handwriting of Ext.P1 cheque and Ext.D4 cheque are similar, which would indicate that cheques were misused by Shobby and complaints filed through different persons against the accused. 3. The complainant was not examined and in his place his power of attorney was examined as PW1. The accused had also testified that the handwriting of Ext.P1 cheque and Ext.D4 cheque are similar, which would indicate that cheques were misused by Shobby and complaints filed through different persons against the accused. 3. The complainant was not examined and in his place his power of attorney was examined as PW1. He testified that he had accidentally witnessed the transaction of money and issuance of cheques by the accused to the complainant on two different dates. No reason has been subscribed by the complainant for his not being examined in person. In view of the reply sent by the accused denying the transaction altogether, it was incumbent upon him to have got into the box in support of his complaint. The learned Magistrate found that the complainant had proved Ext.P1 cheque was supported by consideration and that the complainant has not discharged his proof regarding the transaction of money and issuance of cheque. The accused was thus acquitted. The complainant is aggrieved and hence the appeal. 4. I heard the learned Counsel for the appellant as also the learned Counsel for the 1st respondent and the Public Prosecutor. Records perused. 5. The alleged transaction of money was on 20.03.2002. The complainant has not mentioned about the presence of PW1, his power of attorney, on 20.03.2002 either in the complaint or in the notice issued by him. It is very surprising that the PW1 was present on 20.03.2002, may be it was accident. But on 07.05.2002, when the cheque was allegedly issued, he claims to have been present. According to PW1, the complainant had go to Mumbai in connection with his business for about a month. It is not essential that the complainant himself to be examined to prove a case under Section 138 of N.I. Act. But power of attorney, who was examined as a witness in the place of the complainant, should have witness the issuance of the cheque and the money transaction. The oral testimony of PW1 does not inspire confidence. He admits that he has no official connection with PW1 so as to accompany him for every transaction that involves with the complainant. The learned Magistrate has found that the complainant has not succeeded in proving the transaction on the basis of which Ext.P1 cheque was issued and therefore, the accused was found not guilty and acquitted. 6. He admits that he has no official connection with PW1 so as to accompany him for every transaction that involves with the complainant. The learned Magistrate has found that the complainant has not succeeded in proving the transaction on the basis of which Ext.P1 cheque was issued and therefore, the accused was found not guilty and acquitted. 6. Having given anxious consideration to the entire evidence adduced by both sides, I do not find it necessary to interfere with the findings of the learned Magistrate in acquitting the accused. Apart from the oral testimony of PW1, the power of attorney, there is no other evidence to corroborate the version of the complainant regarding the lending of money to the accused. The version of PW1 that the complainant has gone to Mumbai for a month, on business trip, is no reason to dispense his examination. The reasons stated by PW1 for his presence during the transaction is not believable. Hence, there is no reason to upset the findings of the learned Magistrate. In the result, the Criminal Appeal stands dismissed.