Santosh Hegde, J. -
(1.)This appeal by special leave is preferred against the judgment of the High Court of Kerala at Ernakulam dated 17-11-1995 made in Criminal Appeal No. 438/93 whereby the appellant herein was found guilty of an offence punishable under Section 138 of the Negotiable Instruments Act (the Act), and was convicted and sentenced to pay a fine of Rs. 37,500/- and in default to undergo RI for a period of 3 months. The High Court had further directed that out of the fine, if realised, a sum of Rs. 34,500/- should be paid to the respondent herein by way of a compensation.
(2.)Briefly stated, the prosecution case is that the respondent herein on 1-11-1990 had advanced a cash sum of Rs. 26,500/- for expansion of the appellants hospital and towards the repayment of the said amount, the appellant had issued a cheque for the said sum which when presented to the bank, was dishonoured with an endorsement "Payment stopped by the drawer". The respondent after issuing the required statutory notice, filed a complaint against the appellant for offence under Section 138 of the Act, as stated above. The plea of the appellant was that no cheque was issued to the respondent nor any amount was borrowed from him. He stated that the cheque in question was a blank cheque issued to one Chandrappa Panicker in October, 1985 as security for future instalments of amount if due from the appellant in a chit transaction but the said Panicker did not return the cheque even after the chit transaction was over and the said cheque was misused by the respondent in collusion with said Panicker.
(3.)Learned 1st Class Magistrate, Cherthala, after trial, came to the conclusion that the respondent had failed to establish the payment of money as alleged by him. For this, he primarily relied on the fact that according to the complainant, the respondent did not know the appellant herein personally and he advanced the said sum of money at the instance of an advocate Vijay Kumar in the office of the said advocate. But the respondent had not examined said Vijay Kumar to prove this fact. The trial Court also held that the respondent had not given any reason whatsoever for not examining this witness. The trial Court also held that the respondents case that the cheque in question Ex. P-1 was filled up by the appellant and brought to the office of Vijay Kumar could not be accepted because of the difference in the ink used in writing of the name and amount in the cheque and the ink used in the signature portion of the cheque. This, according to the trial Court, showed that the case of the appellant that he had given a blank cheque signed was more probable. The trial Court also took into consideration the fact that though the respondent had filed a civil suit for the recovery of the amount allegedly paid to the appellant under the cheque in question did not pursue the same, hence, from this fact also the trial Court came to the conclusion that the appellants version that the cheque in question was given in a blank condition to Chandrappa Panicker and the said Panicker being very close to the respondent had colluded with the respondent to make a false complaint against the appellant. The trial Court also took note of the fact that the said Chandrappa Panicker was seen in the Court hall during the trial but was not examined as a witness in support of the respondents case. In this view of the matter, it came to the conclusion that the complainant/respondent has not proved his case and accordingly dismissed the complaint.