D.JYOTHISH KUMAR Vs. V.P.SUNIL

JUDGEMENT

(1.) This is an appeal preferred under Section 378(4) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the correctness of the judgment of the Judicial First Class Magistrate - I, Cherthala in C.C. No. 583/2008. That case was taken on file on a complaint preferred by the appellant alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the N.I. Act. According to the complainant, in order to discharge a pre-existing liability, the accused/first respondent had issued him a cheque on 17.03.2008 for Rs.3,00,000/-. It is the cheque bearing No. 625093 dated 17.03.2008 for Rs.3,00,000/-, drawn on Thoppumbady branch of Centurian Bank Limited. At the time of issuing and handing over the cheque, he was made to believe that there is sufficient amount in the credit of the first respondent. Believing that version, the appellant presented the cheque through the Vayalar East Service Co-operative Society Limited on 27.03.2008. But it was returned dishonoured due to insufficiency of funds. He received back the cheque on 16.04.2008. Thereafter, on 21.04.2008, he caused to issue a lawyer notice which was duly served on the first respondent on 30.04.2008. Even after the tendering of the notice or receipt of the notice by the first respondent, he did not send any reply nor the amount was paid and thus the complaint was instituted before the trial court on 21.05.2008. Pursuant to the summons, the first respondent entered appearance and pleaded not guilty. Thereafter, the complainant gave evidence as PW1. Exts.P1 to P8 were also marked. On closing prosecution evidence, when examined under Section 313(1)(b) of the Cr.P.C., the first respondent denied the allegation and reiterated his innocence. He also filed a statement in writing to the effect that during 2004, he was working in Fire and Rescue Department in Thrikkakara Fire Station. During that period, the brother of the complainant, K.D. Sunil was also working there. Thereafter, he was transferred to Thripunithura. While working in Thripunithura, he had borrowed an amount of Rs.10,000/- from Mathai@Mathew, a colleague and as a security for borrowing the amount he had handed over a signed cheque to the said Mathew. Thereafter, though the amount with interest was repaid, some dispute arose with regard to the payment of interest, thus the cheque was not returned. Thereafter, the said Mathew handed over the cheque to Sunil, through him it reached his brother, the appellant and by misusing the cheque a claim for Rs.3,00,000/- has been made. According to the first respondent, the claim is not genuine. Thereafter, first respondent gave evidence as DW1. He gave a statement as given during the examination under Section 313(1)(b) of the Cr.P.C. At the time of examining PW1, the appellant had stated that the first respondent and the brother of the appellant were working together in the Fire Station near the Rama Varma Club. DW2, the Fire Station Officer was examined to belie this version. DW3 is the said K.D.Sunilkumar, the brother of the appellant. DW3 was declared hostile to the prosecution and was cross examined by the first respondent. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found that the appellant could not prove that the Ext.P1 cheque was issued in discharge of a duly enforceable liability. On that premise, the complaint was dismissed and the first respondent was acquitted under Section 255(1) of the Cr.P.C. Aggrieved by the same, the appellant moved this Court seeking leave of the court. After obtaining leave, this appeal has been preferred.

(2.) I heard learned counsel on both sides. The trial court records were summoned and examined. According to the learned counsel for the appellant, the reasonings for acquitting the first respondent are not legal or correct. The trial court should not have disbelieved the version of the appellant as PW1; absence of details in the complaint should not have been taken serious by the trial court. Similarly, the defence has not set up a probable case. The trial court has completely misread the evidence of the appellant. There is absolutely no contradiction in the version of PW1. There is no basis in questioning the financial capacity of the appellant. In fact the appellant is a well established dealer in indigenous medicine, he has sufficient financial capacity to lend so much money. Even otherwise, such an aspect does not crop up for consideration in such a proceedings. The trial court also failed to notice that the first respondent had not given any reply to the lawyer notice. According to the learned counsel, after having admitted his signature in Ext.P1 document, it was incumbent on the trial court to draw the presumptions under Sections 118 and 139 of the N.I.Act. But the court in total negation of the settled principles of law proceeded to acquit the first respondent, which is bad.

(3.) The following authorities were also relied on by the learned counsel for the appellant:-