TMI Blog2021 (6) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... the execution of the cheque is admitted or proved. Here, the 1st respondent has denied its execution and has given his own version as to how the document had come into existence. Exts. D2 and D3 documents have to be appreciated in this context. Admittedly the 1st respondent and DW1 had some vehicle deal, they jointly owned a Tempo Traveller and an agreement like Ext. D2 was executed while they had parted company. DW1 also admitted that an amount of ₹ 1,92,500/- was due to him, while executing such an agreement two cheques drawn on Punjab National Bank were handed over to him, for ₹ 1,92,000/-. It is the common case that the transaction between DW1 and the 1st respondent has come to an end. The appellant has failed to make out an offence under Section 138 of the Act. Thus the impugned judgment does not warrant interference in appeal - Appeal dismissed. - Crl. A. No. 524 of 2015 - - - Dated:- 11-6-2021 - K. Haripal, J. For the Appellant : Tulasi Panicker, Adv. For the Respondents : Dilip J. Akkara, Adv. and M.S. Breeze, Senior Public Prosecutor JUDGMENT K. Haripal, J. 1. Appellant is the complainant in a proceedings under Section 142 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em on 08.05.2007; in order to honour the terms of the agreement he had handed over two cheques, bearing numbers 701558 and 701559, of the Punjab National Bank to the said Surendran. It was given signed, incorporating amounts. After paying the amounts to Surendran, some dispute was outstanding on the payment of interest. Thereafter, in conspiracy with the appellant, Surendran handed over the subject cheque to the appellant, who is his relative. Thereafter, by incorporating date and name, the instrument was fabricated and presented for collection and thus created a cause of action. After the institution of the complaint he had talked to Surendran and he had assured to withdraw the complaint. He had caused to issue a reply notice incorporating all details. 4. Thereafter three witnesses were examined on the side of the defence, who are the said Surendran, his wife Indira and the 1st respondent himself. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found the 1st respondent not guilty of the offence punishable under Section 138 of the Act and acquitted him. That finding has been called in question in appeal after obtaining leave of the court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant submitted that the appellant has already preferred an appeal against dismissal of the suit, which is pending. The learned counsel for the 1st respondent has disputed this submission. On the basis of the submissions, this Court directed the Registrar (Judicial) to ascertain from the Additional Sub Judge, Thrissur, where O.S. No. 1498/2010 was dismissed under Ext. D6 judgment, as to whether any appeal has been preferred against the judgment and, if so, the outcome of the appeal. Pursuant to the same, the Additional Sub Judge-II, Thrissur sent a reply by fax, on 08.04.2021, stating that the plaintiff in O.S. No. 1498/2010 had preferred an appeal as A.S. No. 12/2013 before the District Court, Thrissur, that, by order dated 31.01.2019, the appeal was dismissed due to non-appearance of the counsel on both sides. A copy of the order of the Additional District Court-I, Thrissur in A.S. No. 12/2013 dated 31.01.2019 was also appended. In other words, the appeal preferred against Ext. D6 judgment was not prosecuted and thus it was dismissed for default. Thus the Ext. D6 verdict of the trial court on the issue has become final. 8. As adverted to earlier, the appellant contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. According to the appellant, the 1st respondent resides about 15 kms away from his house. Even in the light of the dispute raised by the 1st respondent, in spite of his claim that the 1st respondent had facilitated purchase and sale of vehicle for him, no evidence was tendered to prove any previous association between them. 11. The claim of the appellant that he had lent an amount of ₹ 1,00,000/- on 10.04.2007, without any scrap of evidence or document, has to be appreciated in the above backdrop. So long as there is no evidence of any previous association between them, it is improbable that so much money was lent, without obtaining any security whatsoever. Therefore that aspect itself casts doubt on the case of the appellant. 12. Secondly, and more importantly, immediately after the receipt of Ext. P5 lawyer notice, the 1st respondent had issued the Ext. D1 reply denying any transaction between them and also stating his version about the subject cheque. Relevancy of sending a reply notice to the Ext. P5 need not be overstated. In fact, it is the earliest possible opportunity made available to an accused in a cheque dishonour case to give expression to his version abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litated it to misuse the same. The presumptions under Sections 118 and 139 of the Act can be drawn in favour of the complainant only if the execution of the cheque is admitted or proved. Here, the 1st respondent has denied its execution and has given his own version as to how the document had come into existence. Exts. D2 and D3 documents have to be appreciated in this context. Admittedly the 1st respondent and DW1 had some vehicle deal, they jointly owned a Tempo Traveller and an agreement like Ext. D2 was executed while they had parted company. DW1 also admitted that an amount of ₹ 1,92,500/- was due to him, while executing such an agreement two cheques drawn on Punjab National Bank were handed over to him, for ₹ 1,92,000/-. It is the common case that the transaction between DW1 and the 1st respondent has come to an end. According to DW1, the 1st respondent paid him the entire money and took back the original agreement and the cheques, but the 1st respondent has denied the same. If the documents were taken back, normally the 1st respondent would not have held back the originals from the court. Here also the version of the 1st respondent appears more probable. 16. Y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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