A.P. VASU Vs. P.K. BALAKRISHNAN

JUDGEMENT

(1.) APPEAL filed under Section 378 of the Code of Criminal Procedure Code (for short, "Cr.P.C."). Appellant was aggrieved by the dismissal of his complaint filed under Section 138 of the Negotiable Instruments Act (for short, "Act") and the consequential acquittal of the 1st respondent/accused. Pending the appeal, the appellant/complainant died. His legal heirs were impleaded as additional appellants. Case in the complaint, in short, is that the accused issued a cheque drawn on his banker for Rs. 70,000/ - to discharge a legally enforceable debt towards the complainant. When the cheque was presented for collection, it was dishonoured due to insufficiency of funds in the account of the accused. Lawyer notice was issued as per proviso (b) to Section 138 of the Act. In spite of receipt of notice, the accused did not even sent a reply. Thereafter, the prosecution was launched. At the trial, two witnesses were examined on the side of the complainant. Exts. P1 to P6 marked.

(2.) HEARD the learned counsel for the appellant and the learned counsel for the accused/respondent. Learned Public Prosecutor is also heard.

(3.) P .W. 1 is the complainant. He testified that he was a trade union worker. He was functioning as the Secretary of the Kerala Artisans Union. Further, he was a State Committee Member in Artisans Federation of India. Even though he initially stated that Artisans Federation of India is an apolitical organisation, later, in cross -examination, it has come out in evidence that there was a split in the organisation on account of political differences in opinion. Admittedly, the complainant and the accused belonged to two fractions in the organisation. In the complaint, as mentioned by the trial Judge, no definite case as to when money was borrowed, from where it was borrowed, etc. are completely absent. Even in the affidavit filed in lieu of chief examination, no details regarding the lending was mentioned. P.W. 1 at the time of evidence contended that money was advanced to the accused from the Kottayam Office of the Kerala Artisans Union. P.W. 1 in cross -examination, stated that the accused and himself were friends for long years. However, he was not aware as to whether the accused was in financial difficulties. It is interesting to note that P.W. 1 answered in cross -examination that he is a neighbour of the accused. Learned counsel for the accused contended that this case was developed by the complainant without any foundation in the complaint. He would also contend that had the accused and the complainant were friends and neighbours, there was no occasion for the accused to borrow money from the office of the organisation, where they were not sailing together in the same boat. Accused developed a case in cross -examination that while he was working as District President of Artisans Federation of India, he had kept some signed blank cheques in the drawer and it was misused by the complainant. However, there is no definite evidence to accept the case of the accused. But, learned counsel for the accused pointed out the difference in the writings in Ext. P1 cheque and the signature of the accused. Apparent tenor of the cheque will show that it was filled up with one handwriting and the signature of the accused is different from other writings. On this basis, learned counsel for the accused would contend that the accused did not properly execute the cheque. The legal aspect we shall consider in the succeeding paragraphs.