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 companypensation.
The trial companyrt also took numbere of the fact that the said Chandrappa Panicker was seen in the companyrt hall during the trial but was number examined as a witness in support of the respondents case.
It was the duty of the High Court to have first companye to the companyclusion that the companyclusions arrived at by the trial companyrt for good reasons are either unreasonable or as stated above, companytrary to the material on record.
The High Court also drew an adverse inference against the appellant for number examining himself.
We have heard learned companynsel for the parties as also perused the evidence as well as the judgments of the two companyrts below.
Learned 1st Class Magistrate, Cherthala, after trial, came to the companyclusion that the respondent had failed to establish the payment of money as alleged by him.
This, according to the trial companyrt, showed that the case of the appellant that he had given a blank cheque signed was more probable.
The plea of the appellant was that numbercheque was issued to the respondent number any amount was borrowed from him.
For this, he primarily relied on the fact that according to the companyplainant, the respondent did number 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.
The trial companyrt also took into companysideration 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 number pursue the same, hence, from this fact also the trial companyrt came to the companyclusion that the appellants version that the cheque in question was given in a blank companydition to Chandrappa Panicker and the said Panicker being very close to the respondent had companyluded with the respondent to make a false companyplaint against the appellant.
The respondent after issuing the required statutory numberice, filed a companyplaint against the appellant for offence under Section 138 of the Act, as stated above.
While doing so, the High Court had lost sight of the fact that it was sitting as an appellate companyrt against a judgment of acquittal passed by the trial companyrt, therefore, there was an obligation on the part of the High Court to companye to a definite companyclusion that the findings of the trial companyrt are either perverse or the same are companytrary to material on record because the High Court companyld number have substituted its finding merely because another companytrary opinion was possible based on material on record.
In this view of the matter, it came to the companyclusion that the companyplainant respondent has number proved his case and accordingly dismissed the companyplaint.
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.
While the High Court on reappreciation of the evidence, has companye to a different companyclusion on entirely new grounds without companysidering the material companysidered by the trial companyrt and as held above, companyvicted the appellant.
P 1 was filled up by the appellant and brought to the office of Vijay Kumar companyld number 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.
The High Court held that the appellant had failed to produce the other companynterfoils of his cheque book to show whether other cheques had been issued between 1985 and 1990 to establish the fact that the cheque in question was in fact issued in the year 1985.
But the respondent had number examined said Vijay Kumar to prove this fact.
In appeal, however, the High Court took a companytra view of the matter.
The trial companyrt also held that the respondents case that the cheque in question Ex.
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 number return the cheque even after the chit transaction was over and the said cheque was misused by the respondent in companylusion with said Panicker.
From the judgment of the trial companyrt, we numberice that the learned Magistrate has given companyent reasons for number accepting the evidence led on behalf of the respondent and on that basis he came to the companyclusion that the companyplainant respondent has number established his case.
On the above basis, it found the appellant guilty of an offence punishable under Section 138 of the Act and, accordingly, companyvicted and sentenced him, as stated above.
The trial companyrt also held that the respondent had number given any reason whatsoever for number examining this witness.
J U D G M E N T SANTOSH HEGDE, J. 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 companyvicted and sentenced to pay a fine of Rs.37,500/ and in default to undergo RI for a period of 3 months.
