RAMAKRISHNAN N.K. Vs. M.S. YOUNIS

JUDGEMENT

(1.) Appellant is the complainant in CC No. 765/2006 on the file of the Judicial First Class Magistrate Court-I, Thodupuzha. The complaint was instituted alleging offence punishable under Section 138 of the Negotiable Instruments Act. The Court below by the impugned judgment dated 19/12/2007 found that the accused is not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and he was acquitted under Section 255(1) CrPC. The parties are hereinafter referred to as the complainant and accused as arrayed in the complaint.

(2.) The case of the complainant is that the accused borrowed Rs.2 lakhs from him for one month. When he demanded money, the accused came to his residence on 04/07/2005 and issued Ext. P1 cheque. When the cheque was presented for encashment, it was dishonoured due to "funds insufficient". Memo issued by the Canara Bank, Thodupuzha Branch is marked as Ext. P2 and the memo dated 13/07/2005 of the Idukki District Co-operative Bank is marked as Ext. P3. The complainant issued Ext. P4 notice to the accused intimating dishonour of the cheque on 18/07/2005. Exts. P5 and P6 are the postal receipts and acknowledgement card respectively. Accused received notice on 22/07/2005. Complainant was examined as PW 1 and Exts. P1 to P7 were produced. On the side of the defence DW 1 was examined and Exts. D1 and D2 receipts were produced. In 313 examination the accused stated that he was a subscriber of a chitty for a sala of Rs.50,000/- conducted by the complainant in 2003-2004 and that the said amount with interest was repaid. It is also stated that at the time of lending Rs.50,000/- the complainant obtained two blank cheques and a blank stamp paper worth Rs.50/-. It is also stated that the complainant did not arrange chitty amount as promised, that there was some dispute, and that the complainant filled one of the cheques and filed this case. Complainant was recalled for further cross- examination in the light of the said statement of the accused. He produced Ext. P7 chitty register. During the course of further cross-examination the complainant testified that the accused was a subscriber of a chitty started on 03/06/2004, that the period of chitty is 40 months, that he made remittance for ten instalments and that the last remittance was on 07/03/2005.

(3.) The learned Magistrate examined the evidence adduced by the prosecution and the evidence of DW 1. Admittedly, the complainant is a friend of the accused. DW 1 deposed that there are two other cases pending against him. He testified that he was also a subscriber of a chitty conducted by the complainant, that at his request the complainant paid Rs.37,500/- as the price amount and he obtained blank cheque and blank stamp paper. He also testified that when he remitted the entire instalment, cheque and stamp paper were returned. He further testified that the complainant gave Rs.50,000/- to the accused on obtaining two cheques and one blank stamp paper. In cross-examination the accused admitted that DW 1 and the accused are office bearers of the congress party and that they are known to each other closely. On a reading of the oral testimony of DW 1 it is clear that his testimony does not inspire confidence. Relying on his testimony the Court below held that the conduct of the complainant in lending Rs.2 lakhs without any stipulation for paying interest and without obtaining any document at the time of borrowal, cannot be believed. Another reason stated by the Trial Court is that it is unbelievable that the complainant paid Rs.2 lakhs to a person who is unable to pay even small amount of chitty instalments. The learned Magistrate found that at the time of lending Rs.2 lakhs the chitty instalment was in default for three months. In the circumstances, the learned Magistrate observed that the complainant will not lend Rs.2 lakhs to such a person without any document, who defaulted payment of chitty instalments. The first sentence in the complaint is that the complainant and the accused are friends. The said fact is not controverted while the complainant was examined. If they are friends, it cannot be ruled out that the complainant will not lend money to his friend without obtaining supporting documents.