Judgment · High Court · 2007

J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl.A.No.1059 of 2002 (D) - - - - - - - - - - - - - - - - - - - -Dated this the 27th day of March, 2007J U D G M E N TThe complainant in C.C.No.304/2001, on the file ofJudicial Magistrate of the First Class Court-II, Thamarassery, isthe appellant. He preferred a complaint under Section 138 ofthe Negotiable Instruments Act, in short 'the Act', against therespondent-accused, before the court below. While thecomplainant examined himself as PW.1 and marked sevendocuments, the respondent had examined two witnesses andmarked Exhibits D1 series and D2. The learned Magistratefound that the presumption available under the law, in favour ofthe complainant, was rebutted by the respondent and, therefore, dismissed the complaint and acquitted the accused. Hence, thisappeal on obtaining leave. 2.I have heard the arguments advanced by thelearned counsel for the appellant as well as the learned counselfor the respondent. The case put forward by the appellant isthat, in discharge of a debt of Rs.2,00,000/-, due to the appellant, Crl.A.No.1059/2002-: 2 :-the respondent issued Exhibit P1 cheque. It was dishonouredwhen presented, and the amount was not settled, whendemanded through lawyer notice, as contemplated under theprovisions of the Act. Hence, the complaint was filed. Theconsistent case of the appellant is that the respondent borrowedan amount of rupees two lakhs. However, the respondent hadexamined DWs.1 and 2, to prove that he had a transaction withone Joy Orathel, who was conducting a chit fund in the name ofOrathel Chit Funds. The respondent subscribed a chit and bidthe same. As a security, he issued Exhibit P1 cheque. DW.1was the collection agent of the chit fund and DW.2 was the clerk. Exhibit D1 is a pass book issued by the chit fund. Exhibit D1(a)is an entry made by DW.1, in the pass book, which shows that asigned blank cheque leaf bearing No.1661, for Rs.50,000/-, alongwith blank stamp paper, were received by DW.1, on behalf of theOrathel Chit Funds. It was not returned, even after completionof the transactions by the respondent. The case of therespondent, therefore, is that the said cheque No.1661 had beenhanded over to the appellant, the brother-in-law of the foremanof the Orathel Chit Fund, and he made use of it, after writing Crl.A.No.1059/2002-: 3 :-and inflating an imaginary figure, so as to harass therespondent.3.I have gone through the evidence of PW.1 aswell as DWs.1 and 2. Learned counsel for the appellant hadsubmitted that DWs.1 and 2, though were the employees ofOrathel Chit Funds, are the friends of the respondent and, therefore, they deposed in favour of the respondent. Except thissubmission, there is no further evidence adduced, to contradictthe evidence of DWs.1 and 2. There was no suggestion madewhile DWs.1 and 2 were in the box, to discredit them and also tochallenge their evidence, that they were speaking falsehood infavour of the respondent. When I appreciate the entire evidencethat is available on record, I accept the evidence of DWs.1 and 2.In view of Exhibit D1 pass book, D1(a) entry, and Exhibit P1cheque leaf being the same as that of the cheque numberendorsed in Exhibit D1(a), I hold that, the case of the respondentthat the blank cheque leaf entrusted with Orathel Chit Fundshad been handed over to the appellant and he made use of it forhis own interest. There was absolutely no transaction between Crl.A.No.1059/2002-: 4 :-the appellant and the respondent, there being no evidence tothat effect.In the result, I find nothing to interfere with thefindings arrived at by the learned Magistrate. Hence, the appealfails and is dismissed.(J.M.JAMES)Judgems Crl.A.No.1059/2002-: 5 :-J.M.JAMES, J. - - - - - - - - - - - - - - - - - - - -Crl.A.No. 1059 of 2002 (D) - - - - - - - - - - - - - - - - - - - -J U D G M E N T 27th March, 2007