IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.

THURSDAY, THE 2^ND DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943 CRL.A NO. 1492 OF 2007 AGAINST THE JUDGMENT IN C.C.NO.1499/2005 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS - I,KOTTARAKARA APPELLANT/COMPLAINANT:

M.PAPPACHAN, K.R. BHAVAN, S.N.PURAM, PAVITHRESWARAM P.O., EZHUKONE VILLAGE.

BY ADVS.

K.SASIKUMAR S.SREEDUTT RESPONDENTS/ACCUSED:

1 THILAKAN, S/O. NARAYANAN, THUSHARA, CHERUPOIKA P.O., PAVITHRESWARAM, KOTTARAKARA.

2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

BY ADVS.

R1 BY SRI.S.SANTHOSH KUMAR R2 BY SRI.RANJITH GEORGE, GOVERNMENT PLEADER THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The complainant in C.C.No.1499 of 2005 on the file of the Judicial First Class Magistrate Court – I, Kottarakara has filed this appeal challenging the judgment dated 19.03.2007 in that criminal complaint, whereby the respondent/accused stood acquitted of an alleged offence under Section 138 of the Negotiable Instruments Act.

2. It was the case of the appellant/complainant that the respondent/accused had borrowed a sum of Rs.2,50,000/- from him and in discharge of that liability, the respondent/accused had issued a cheque bearing No.134344 dated 04.11.2005 for a sum of Rs.2,50,000/- drawn on Indian Bank, Puthoor Branch in favour of the appellant/complainant. That cheque was returned unpaid on account of insufficiency of funds in the account maintained by the respondent/accused. A statutory notice was issued and the subject complaint was filed alleging that the respondent/accused had committed an offence under Section 138 of the Negotiable Instruments Act.

3. The appellant/complainant was examined as PW1. The affidavit filed in view of chief examination by the appellant/complainant does not contain any statement other than the statement that the respondent/accused had borrowed a sum of Rs.2,50,000/- and that in discharge of that liability, the subject cheque had been issued in favour of the appellant/complainant; that this cheque had been returned unpaid on account of insufficiency of funds; that the statutory notice had been issued; that the respondent/accused had committed an offence under Section 138 of the Negotiable Instruments Act and proceeds to mark Ext.P1 cheque, dishonour memos, the acknowledgment card in respect of the statutory notice, office copy of the statutory notice and postal receipt as proof of despatch of the statutory notice. During cross examination, the appellant/complainant stated that the respondent/accused had borrowed amounts in sums of Rs.50,000/- in 2002 and thereafter Rs.3,000/, Rs.25,000/- and Rs.30,000/- on various dates thereafter. The main case of the respondent/accused was that in respect of the loans availed from the appellant/complainant, they had entered into Ext.D3 agreement dated 04.10.2004 in which it was agreed that the respondent/complainant shall repay a sum of Rs.1,95,000/- together with another sum of Rs.40,000/- and that in discharge of that liability, a portion of the amount had been repaid as is evident from Ext.D4 receipt issued by the appellant/complainant. It was therefore the case of the respondent/accused that there was no liability of Rs.2,50,000/- which would have resulted in a cheque for that amount having been issued as is suggested in the complaint filed by the appellant/complainant. The learned Magistrate on a consideration of the matter, came to the conclusion that D3 agreement and D4 receipt was sufficient to establish that there was no liability of Rs.2,50,000/- payable by the respondent/accused to the appellant/complainant and therefore that the cheque could not have been said to be issued in discharge of a legally enforcible debt. It is on this point that the learned Magistrate acquitted the respondent/accused.

4. The learned counsel for the appellant would submit that there were several tr