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TMI Blog2021 (6) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... Guruvayur branch of the Punjab National Bank. That transaction also took place at the residence of the appellant. He was made to believe that there was sufficient amount in the account of the respondent. On 02.11.2007 the cheque was presented for encashment through Chavakkad branch of the Canara Bank, but it returned dishonoured with the endorsement 'funds insufficient'. Thereafter, the 1st respondent made lame excuses and then the appellant caused to issue a lawyer notice on 21.11.2007, which was served on 23.11.2007. But the 1st respondent sent a reply with false contentions and failed to pay the amount and that prompted him to institute a complaint alleging offence punishable under Section 138 of the Act. 3. After making necessary verifications, the court took cognizance of the offence and summoned the 1st respondent. When particulars of the offence were read over and explained, the respondent pleaded not guilty. Thereafter the appellant gave evidence as PW1. Exts. P1 to P7 were also marked. On conclusion of evidence when examined under Section 313(1) (b) of the Cr.P.C., the 1st respondent denied all the incriminating materials. He also filed a statement reiterating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision reported in Rangappa v. Sri. Mohan [ (2010) 11 SCC 441], the counsel stated that the Apex Court has acquitted the accused in the said case on identical facts. He also placed reliance on the decisions in Bir Singh v. Mukesh Kumar [AIR 2019 SC 2446] and Kalamani Tex and another v. Balasubramaniam and another [ILR 2021 (1) Ker. 855]. According to the learned counsel, the evidence tendered by the 1st respondent is hardly sufficient to displace the presumptions available in favour of the appellant. 6. On the other hand, the learned counsel for the 1st respondent submitted that with reference to Ext. D1, immediately on receipt of the lawyer notice he had issued a reply stating true facts. The testimony of DW1 also indicates that there was a transaction in connection with the Tempo Traveller jointly owned by the 1st respondent and DW1; he has also admitted the execution of an agreement on the lines of Ext. D2. The appellant had instituted a suit for realisation of money, on the same cause of action, which stands dismissed. According to him, the entire circumstances and the inconsistent statements given by the appellant before the trial court and also before the civil court ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s disposed of, some amounts were due from him to Surendran and on that consideration, the Ext. D2 agreement was executed and towards payment of an amount of Rs. 1,92,000/-, two cheques, Exts. D3 and D4, were handed over to Surendran without incorporating the name of the payee or date, but incorporating only the amounts and also putting his signatures. He had given back the entire amount due to Surendran. But the original agreement or cheques were not returned since there was some dispute with regard to the interest payable. Thus Surendran used the services of the appellant, fabricated one of the cheques by incorporating the name of the appellant and made him to present the cheque. Thus he has denied the transaction. 9. After considering the oral testimony of PW1 and DWs 1 to 3 as well as Exts. P1 to P7 and also Exts. D1 to D6 documents, the learned Magistrate found the 1st respondent not guilty and that verdict is under challenge in this appeal. 10. After re-visiting entire materials and evidence and analysing the circumstances, the learned counsel for the appellant could not persuade this Court to hold that it was a transaction as alleged by him. Firstly, the very acquaintance b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Surendran with whom he had a vehicle deal. The appellant was examined before this Court twice, on 17.07.2010 and on 01.09.2012. Before the trial court he boldly stated that he had no acquaintance whatsoever with Surendran. In order to expose the stand, a copy of deposition of the appellant given before the civil court was produced and marked as Ext. D5, where he stated that Surendran S/o. Sankaran is the husband of the daughter of his sister. 14. Exts. D5 and D6 were highlighted by the respondent to indicate the prevaricating stands taken by the appellant before the trial court and the civil court. When examined as PW1 before the trial court, the appellant stated that the Ext. P1 was brought prepared and signed before him. But before the civil court he said that the entire entries in Ext. P1 cheque were inserted before him. So, on this aspect also the appellant has taken different stands. In the circumstances, the trial court cannot be found fault with for disbelieving such a version. 15. Moreover, the argument of the learned counsel that merely for the reason that the 1st respondent has admitted his signature on Ext. P1, the court should have assumed its genuineness canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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