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CHEQUE BOUNS CASE

“PW1 would say that he acquainted with the accused about four years back through one of his friend. He again deposed that he do not know the name of the institution wherein the accused is working. Further he do not know how many members are there in the family of the accused. He again deposed that he never

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A cheque drawn on the Regent Street (Clifton) ...

A cheque drawn on the Regent Street (Clifton) Branch of Westminster Bank, dated 14 August 1956. (Photo credit: Wikipedia)

Crl.L.P..No. 40 of 2011()
1. K.K.MANOHARAN, AGED 45 YEARS,
Petitioner

Vs

 

1. BINNY, S/O.GOVINDAN NAIR,
Respondent

2. STATE OF KERALA,

For Petitioner :SRI.K.A.SALIL NARAYANAN

For Respondent : No Appearance

The Hon’ble MRS. Justice K.HEMA

Dated :31/01/2011

O R D E R
K.HEMA, J.
———————————————–
Crl.L.P. No.40 of 2011
———————————————–
Dated 31st January, 2011.

O R D E R

 

This is a petition filed for special leave to file an

appeal against an order of acquittal.

2. Appellant is the complainant. He filed a

complaint before the Magistrate Court, alleging offence under

Section 138 of the Negotiable Instruments Act, against first

respondent. As per the allegations in the complaint,

complainant and accused were known to each other. He

approached the complainant and borrowed an amount of

Rs.1,05,000/- on condition that he would repay the amount

within two months. In discharge of the said debt, accused

issued Ext.P1 cheque for the said amount. The cheque on

presentation bounced stating that “funds insufficient”. A

lawyer notice was issued demanding payment. The accused

accepted the notice, but did not make the payment. Hence, the

complaint was filed.

3. To prove the case, petitioner examined PW1 and

PW2 and marked Exts.P1 to P5. The accused denied the entire

Crl.L.P.No.40/11 2

 
transactions and execution of the cheque in favour of

complainant and took up a specific defence. In support of his

case, DW1 was examined. The trial court, on analysis of the

evidence found it difficult to believe that appellant would have

paid an amount of Rs.1,50,000/- to the accused.

4. It has come out from the evidence of PW1 that he

did not know anything about the details of the family of the

accused and that he had not even visited the house of accused.

His evidence also reveals that he did not accept any security

while paying the huge amount of Rs.1,50,000/- to the accused.

The trial court also took note of the fact that as per evidence of

PW1, instead of the accused going to the house of complainant,

the latter himself went to the house of accused to pay the

amount, which does not reconcile with the normal human

conduct. The relevant observations are in paragraph 11 as

follows :

“PW1 would say that he acquainted with the accused about four

years back through one of his friend. He again deposed that he

do not know the name of the institution wherein the accused is

working. Further he do not know how many members are there

in the family of the accused. He again deposed that he never

Crl.L.P.No.40/11 3

 
visited the house of the accused. The said evidence of PW1 is

more than sufficient to hold that the accused is a stranger to

him. As such, it is very difficult to believe that the complainant

advanced a sum of Rs.1,05,000/- to the accused. It has come out

in evidence that the complainant is doing textile business at

Perambra. His case is that he come over to Calicut and paid the

alleged amount to the accused. It may be noted that the

accused was the person in need of money. The common

conduct is that the person in need of money will go to the

creditor to accept it. If the complainant is so generous to give a

sum of Rs.1,05,000/- to the accused, whose bio-data is not

known to him, he could very well invite him to Perambra to

advance it.”

5. The trial court also found that as per the evidence,

the petitioner gave money on an undertaking by accused that

the amount will be paid after two months. The amount was

paid in February and the amount was to be repaid only in April.

But, the cheque is dated 30.3.2007. Hence, the court found that

it is improbable that the cheque will be issued even before the

due date. I shall quote the relevant findings of the trial court as

hereunder :

“At this juncture it is important to note that the date which

Ext.P1 cheque bears is 30.3.07. During cross examination

PW1 deposed that the alleged amount was advanced on

25.2.07. As such, even according to the complainant the

Crl.L.P.No.40/11 4

 
accused had to repay the amount by 25.4.07. But the date

which Ext.P1 cheque bears is 30.3.2007, i.e. prior to the date

of agreed repayment. The complainant is conspicuously

silent about the fact that what was the circumstances to

issue a cheque bearing a date prior to the agreed date of

repayment. The complainant has no case that he had

demanded for the amount prior to the agreed date of

repayment. While in the box, the specific case of the

complainant is that the accused borrowed the alleged

amount on 25.2.07 on condition to repay it within two

months and he did not keep his promise. As such after the

expiry of the agreed date of repayment, he approached the

accused to demand the amount and at that time he told him

to present the cheque. Since the alleged amount was

borrowed on 25.2.07 with an undertaking to repay it within

two months, in ordinary circumstance there was no necessity

to issue a cheque bearing a date prior to the said period.

There is no explanation has been given by the complainant

regarding the same.”

6. The petitioner also examined PW2 to support his

case, but his evidence on the relevant aspects are contradictory

to the evidence given by petitioner. While PW1 stated that the

cheque was issued at the time of advancing the money, PW2

stated that it was issued on a subsequent date, it is noted by

the trial court. The trial court also noted certain discrepancies

in the circumstances under which the cheque was allegedly

Crl.L.P.No.40/11 5

 
executed. On a whole, I do not find that petitioner has proved

his case and the trial court has correctly analysed the evidence

and come to such a finding.

7. Learned counsel for petitioner vehemently

contended that the case of the accused has not been

probabilised. DW1 is an interested witness and these facts are

brought out in evidence, it is submitted. The trial court was

carried away by the evidence of DW1 and that is the reason

why the evidence of complainant was disbelieved, it is

submitted. It is also pointed out that though the cheque is

dated 30.3.2007, it was presented only in April. On going

through the findings of the trial court, I do not find any reason

to interfere with the same, on the grounds urged. Hence, I am

not inclined to grant leave.

This petition is dismissed.

 
K.HEMA, JUDGE.
tgs

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