Siby Bhaskaran vs Tony Thomas

G. Sasidharan, J.—The order of acquittal of the respondent, who was accused in S.T.251/1995 on the file of the Judicial Magistrate of the First Class, Erattupetta, is challenged in this appeal by the appellant, who was the defacto complainant in the above case. According to the appellant, respondent issued Exhibit-P1 cheque for an amount of Rs. 19,000/- drawn on Syndicate Bank, M.G. Road Branch, Ernakulam and he presented the cheque for encashment through the State Bank of Travancore, Plassanal Branch. The cheque was dishonoured by saying that there was no sufficient amount in the account of the respondent for honouring the cheque. Appellant issued notice on 1-4-1992 to the respondent informing him of the dishonour of the cheque and demanding payment of the amount covered by the cheque. Exhibit-P7 postal acknowledgement card would show that notice was received by the respondent on 15-4-1992. Since the amount covered by the cheque was not paid by the respondent, complaint was filed by the appellant alleging that the respondent committed the offence u/s 138 of the Negotiable Instruments Act. The trial Court, after taking evidence, found that the respondent discharged his liability under the cheque even before he lawyer notice was issued to him and hence the respondent did not commit the offence punishable u/s 138 of the Negotiable Instruments Act. Respondent was hence acquitted by the trial Court.

In this appeal the appellant says that the finding by the trial Court that under Exhibit-D3 agreement dated 11-3-1992 the respondent discharged his liability even before the notice was issued to the respondent is incorrect.

The appellant gave evidence in the trial Court as P.W.1. He said about the fact that Exhibit-P1 cheque issued by the respondent was dishonoured by the bank for the reason that there was no sufficient amount on the account of the respondent. P.W.2 is the Bank Manager who said that on the date on which Exhibit-P1 came to the bank for encashment there was only an amount of Rs. 121.30 in the account of the respondent and that the cheque was dishonoured for the reason that there was no sufficient amount in the account of the respondent.

Accused was examined as D.W.1 and his contention is that he is a Share Broker having licence from the Stock Exchange and that the appellant entrusted 400 share certificates with him and when the appellant demanded back the share certificates those certificates were with the Stock Exchange and hence he issued Exhibit-P1 cheque to the appellant for an amount of Rs. 19,000/-. He would contend that he did not execute Exhibit-P9 agreement. The non-production of Exhibit-P9 along with the complaint is also pointed out by the respondent to show that Exhibit-P9 is not a genuine document.

D.W.2 is the attestor to Exhibit-D3 proved by the respondent when he was examined in the trial Court. What is stated in Exhibit-D3 is that the appellant received from the respondent 400 shares on 11-3-1992. Mention is made in Exhibit-D3 regarding the cheque that was issued by the respondent and the agreement was that since the cheque had been sent for collection it would be given to the respondent as and when it was returned to him. There is also statement in Exhibit-D3 that all the dealings between the appellant and the respondent in connection with the share certificates came to an end.

The learned counsel appearing for the appellant would say that Exhibit-D3 is not a genuine document and on the basis of that document it cannot be said that the amount covered by the cheque had already been paid by the respondent. The decision on the question whether the share certificates had been given back to the appellant and there was agreement that the cheque Exhibit-P1 would be given back when the cheque was returned from the bank, depends mainly on the finding on the question whether Exhibit-D3 is a genuine document. The trial Court said that Exhibit-D3 was given by the appellant to the respondent and it was on the basis of the statements in Exhibit-D3 that it was found that the liability was discharged by the respondent even prior to the issuance of notice by the appellant. On going through the evidence of D.W.2 it is seen that he speaks about the issuance of Exhibit-D3 receipt by the appellant. According to him, he was present when that document was executed and he put his signature in that document as an attestor. According to the learned counsel appearing for the appellant, the evidence of D.W.2 cannot be believed, because D.W.1 said that the receipt was returned and handed over to the appellant in Blue Moon Hotel whereas D.W.2 said that it was in the restaurant in the above hotel that receipt was handed over to the appellant. It is true that D.W.1 says that receipt was written and handed over to the appellant in the Reception of Blue Moon Hotel. D.W.2 says that the receipt was signed by the appellant and was handed over to the respondent in Blue Moon Restaurant. Even if there are some minor contradictions in the versions of D.Ws.1 and 2 regarding the place where the receipt was written and given to the respondent both of them say that it took place in Blue Moon Hotel. There is no material contradiction in the versions of D.Ws.1 and 2 to show that their version regarding the issuance of Exhibit-D3 receipt cannot be believed. On going through the judgment of the trial Court also it is seen that sufficient reason is given by the learned Magistrate for holding that Exhibit-D3 was actually given by the appellant to the respondent. The finding by the trial Court that the respondent discharged his liability even before sending the lawyer notice is on the basis of legal evidence. The conclusion arrived at by the learned Magistrate that the respondent did not commit the offence punishable u/s 138 of the Negotiable Instruments Act is correct.

There is no merit in this appeal. The appeal is dismissed.