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CASE NO.:

Appeal (crl.) 1433-1434 of 2007

PETITIONER:

John K. John

RESPONDENT:

Tom Varghese & Anr

DATE OF JUDGMENT: 12/10/2007

BENCH:

S.B. Sinha & Harjit Singh Bedi

JUDGMENT:

J U D G M E N T

[Arising out of SLP (Crl.) No. 6038-6039 of 2005]

S.B. SINHA, J :

1. Leave granted.

2. The complainant is before us being aggrieved by and dissatisfied with

a judgment and order dated 24.08.2005 passed by a learned Single Judge of

the High Court of Kerala in Crl. R.P. Nos. 2255 and 2256 of 2004 whereby

and whereunder the judgment of conviction and sentence passed by the

learned Trial Judge and affirmed by the Appellate Court, was set aside.

3. Respondent allegedly issued two cheques in favour of the appellant

herein. The said cheques when presented were dishonoured for want of

insufficient funds. As despite service of notice, the respondent did not make

any payment, two complaint petitions were filed against him.

4. The question which arose for consideration before the learned Trial

Judge and consequently before the Court of Appeal as also the Revisional

Court was as to whether the said cheques had been issued towards discharge

of any existing debt.

5. Relationship between the parties is not in dispute. The complainant

used to run chitties. Respondent was a subscriber to three chitties conducted

by the firm of the appellant. In respect of one of the chitties, the bid was

held on 7.10.1997 for a sum of Rs. 1,00,000/-. The amount was paid on

3.11.1997. Bid was again made by the respondent in relation to another

chitty on 7.04.1998, for a sum of Rs. 1,00,000/-. The amount was paid on

25.06.1998. Allegedly, Respondent committed defaults in payment of the

instalments in relation thereto with effect from 7.04.1998.

Indisputably, a suit for realization of the said amount was filed by the

appellant against the respondent in the Court of the Subordinate Court,

Kottayam which was marked as O.S. No. 1 of 2000. Another suit being O.S.

No. 168 of 2000 was instituted before the Munsiff Court, Changancherry

claiming a sum of Rs. 55,900/-. Respondent, apart from the aforementioned

two chitties, was a subscriber to another chitty for a sum of Rs. 50,000/-. It

was not prized by the respondent. On an allegation that the respondent

along with three others had borrowed a sum of Rs. 1,00,000/- from him on

26.03.1998 wherefor he executed a demand promissory note and as despite

demand, the said amount was not paid to him, the appellant instituted

another suit being O.S. No. 362 of 1999 in the Subordinate Court, Kottayam

for recovery of a sum of Rs. 1,00,000/- with interest.

6. Appellant herein admittedly was conducting chitty transactions in the

name of a firm known as \021Karappara Chitty Funds\022. He is a partner of the

said firm. The suits were instituted by him representing the said firm.

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Appellant contended that despite the fact that the respondent herein was a

defaulted subscriber of two prized chitties, he took personal loan from him

in his personal capacity.

7. Before the learned Trial Judge, the respondent examined two

witnesses who proved the aforementioned fact. The learned Trial Judge, in

its judgment, took notice of the pendency of the several civil litigations by

and between the parties hereto. It, however, proceeded on the basis that as

admittedly cheques have been issued by the respondent which on

presentation were not honoured, he committed an offence under Section 138

of the Negotiable Instruments Act (for short \023the Act\024). The said findings of

the learned Trial Judge was upheld in appeal by Shri K. Ramakrishnan,

learned Additional Sessions Judge by a judgment and order dated

17.03.2004.

8. The High Court, however, in the revision application filed by the

respondent herein opined that the learned Trial Jud