T J JOY Vs. O P JOY

JUDGEMENT

(1.) THE first respondent has a brother by name Paul whose wife is Binu Paul. She had a fishing vessel. The vessel was in the possession and management of Paul. The appellant was given a share in the business for which he paid Rs.3 lakhs to Binu Paul. Paul did not pay him any share in the profit. On 29.3.2000 the appellant paid Rs.3 lakhs more and purchased '= right in the vessel', which is evidenced by an agreement. But the appellant was not paid his share in the profit. Later the vessel and the purseen net were agreed to be given to the appellant which is evidenced by an agreement dated 8.8.2001. "Since the boat owners did not comply with any of the terms of the settlement, the complainant (appellant) lodged a complaint before the police authorities which also failed during 1999". The first respondent agreed to pay the appellant Rs.12.5 lakhs in full and final settlement of his claim against Binu Paul. He issued a cheque dated 6.12.2005 for Rs.6.5 lakhs and another cheque dated 20.12.2005 for Rs.6 lakhs. The cheques were presented before the bank on 6.2.2006. They were returned dishonoured for want of sufficient fund in the account. To the notice issued by the appellant the first respondent sent reply notice raising false contentions. He did not pay the amounts covered by the cheques. Thus he committed the offence under Section 138 of N.I. Act. This is the sum and substance of the allegations of the appellant in the two complaints filed by him on the basis of the above two cheques. The two cases were tried jointly. By the impugned judgment the trial court found that the appellant failed to prove execution of the cheque and accordingly, it acquitted the appellant in both cases. The order of acquittal is challenged in these appeals.

(2.) THE appellant was examined as PW1. No other witness was examined on his part except a bank officer. The defence version is that Binu Paul was liable to pay Rs.3 lakhs to the appellant; on a complaint filed by the appellant Deputy Superintendent of Police concerned summoned the first respondent and all his brothers including Paul to his office and forced the appellant to handover two signed blank cheques and those are the cheques relied on by the appellant.

(3.) PROOF regarding execution of the cheques, which were marked as Ext.P7 and P7(a), may be considered. The appellant who was examined as PW1 has no case that he saw the appellant executing the cheques. In cross - examination he said that the first respondent brought written up cheques. Still he did not say that he saw the first respondent signing the cheques. But for the admission of the first respondent that the cheques bear his signatures, there would have been no evidence to prove even the signatures in Exts.P7 and P7 (a).