Kerala High Court
A.K.Anil Kumar vs D.Vijayan on 15 September, 2010
Author: K. Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.L.P..No. 923 of 2010()
1. A.K.ANIL KUMAR,
... Petitioner
Vs
1. D.VIJAYAN, S/O DEVANESAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.MANOJ P.KUNJACHAN
For Respondent :SRI.PIRAPPANCODE V.S.SUDHIR
The Hon'ble MRS. Justice K.HEMA
Dated :15/09/2010
O R D E R
K. HEMA, J
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Crl.L.P.No. 923 OF 2010
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Dated this the 15th day of September, 2010
O R D E R
Petition is for granting leave for filing appeal.
2. petitioner filed a complaint against first respondent alleging offence u/s.138 of Negotiable Instruments Act. According to him, accused borrowed Rs.3,50,000/- and on demand he executed Ext.P1 cheque on 20.05.1996 on the account maintained by him in the bank, towards discharge of the liability. The cheque on presentation, was dishonoured on the ground insufficient fund. Lawyer notice was issued but no payment was made in spite of the demand. Hence the complaint.
3. Complainant adduced evidence as PW1 and marked Ext.P1 to P5. The trial court on analysis of evidence found that PW1's claim that he has source of income to raise Rs.3.5 lakhs is unbelievable. The court below has given the following reasons for entering such finding:
"The complainant has admitted that the accused is a contractor by profession and one Varghese residing at Thirumala is his close friend. According to the accused he has constructed a building with compound wall for the aforesaid Varghese and on Crl.L.P. No.923/10 2 collapse of the compound wall he was constrained to issue a signed blank cheque to the said Varghese which was misused for filing the present case and that the complainant is a name lender for the said Varghese.
The case of the complainant that the accused borrowed Rs.3,50,000/- in the year 2004 and has issued Ext.P1 cheque in 2006 is also unreliable.
The fact that all the entries except the signature found in Ext.P1 cheque is type written also render the case of the accused regarding non execution of the cheque more probable.
I have carefully perused the rival contentions and the oral and documentary evidence tendered in this case. In this case, there is no dispute regarding the authenticity of the signature of the accused found in Ext.P1 cheque. At the same time there is denial of execution of Ext.P1 cheque in favour of the complainant. The complainant is a pastor working in a church and his admitted monthly income is Rs.5,000/- only. At the outset, I may say that there is no chance for the accused who is a contractor borrowing Rs.3,50,000/- from the complainant. The complainant has miserably failed to convince the court the nature of acquaintance which compelled the complainant to arrange such a huge amount for the accused, borrowing huge amounts from different persons and also by selling the ornaments of his wife. It is also not probable that the complainant gave huge amount to the accused without obtaining any security in the year 2004. The evidence tendered by the complainant regarding his source of income is doubtful and not worn inspiring the mind of the court regarding the alleged transaction. In short, the complainant has failed to adduce satisfactory evidence to show that the accused borrowed Rs.3,50,000/- from him and has executed Ext.P1 cheque in his favour towards the discharge of the said liability."Crl.L.P. No.923/10 3
3. There is no ground to reverse the above findings. Learned counsel for petitioner argued that accused had promised to settle the issue by paying some amount during the course of trial. That itself has some indication that he owes some money, but there was no settlement. On hearing the petitioner's counsel, I am not inclined to reverse the findings entered into by the trial court which are founded on evidence. The submissions made are too insufficient to interfere with the order of acquittal. Hence, I am not inclined to grant special leave.
This petition is dismissed.
K. HEMA, JUDGE.
Sou.