Arunachalam Pillai v. State of Kerala and Merry Paul

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934 CRL.A.No. 1873 of 2005 ( ) -------------------------CC.810/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT.-II, NEDUMANGAD APPELLANT :- COMPLAINANT IN C.C.NO.810 OF 2000 : ------------------------------------------------------------------------------ ARUNACHALAM PILLAI, S/O. PARAMESWARAN PILLAI, THIRUMENI BHAVAN MUKKOLAKKAL, THOKKUMKARA MURI, KARIPOOR VILLAGE. BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS :- STATE AND THE ACCUSED IN C.C.NO.810 OF 2000 : --------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MERRY PAUL, PROVIDENCE, PUTHUKULANGARA P.O., EDACHIRA. R1 BY PUBLIC PROSECUTOR SRI.P.M.SANEER R2 BY ADVS. SMT.B.WALSON JEE SINILLO SRI.SIJU RAJAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **V.K. MOHANAN.J** ## **------------------------------------------Crl.A.No.1873 OF 2005 -------------------------------------------Dated this the 20[th] day of June, 2012** ## **JUDGMENT** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 19.10.2004 in C.C.No.810/2000 of the Judicial First Class Magistrate Court II, Neudmangad by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that the accused who is a lady, borrowed an amount of ` 1,20,000/- from the complainant and towards the discharge of the said liability the accused issued a cheque, Ext.P1 dated 03.04.2000, which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has not paid the amount inspite of the service of statutory notice on her. Thus according to the complainant the accused has committed the offence Crl.A.No.1873 OF 2005 **2** punishable under Section 138 of N.I. Act. During the trial of the case the complainant himself was examined as PW(1) and produced Exts.P1 to P7 documents. From the side of the defence DW1 to 3 were examined and produced D1 & D2. The Trial Court found that complainant was not succeeded in establishing the offence punishable under Section 138 of N.I. Act, and the accused is found not guilty and she is accordingly acquitted u/s.255(1) of Cr.PC. The above finding and the order of acquittal are challenged in this appeal. 3. I have heard Shri.Shinod learned counsel for the appellant and Adv. Mis.Walsan Jee Sinille counsel for the respondent. 4. The learned counsel for the appellant vehemently submitted that the learned Magistrate on the strength of the decision of the Honourable Court reported in **2002(3) KLT 389 SC in Premsankar v. I.G. of Police** and in the light of the judgment, Exts.D1 & D2 in O.S.No.28/2003 came into the conclusion that the complainant has not proved the Crl.A.No.1873 OF 2005 **3** transaction and the execution of the cheque. According to the learned Magistrate the finding of the Civil Court in Ext.D1 case particularly regarding the execution of the cheque is acceptable in the criminal case since the parties both in the civil case as well as in the criminal case are the same. But according to the learned counsel for the appellant, the decision of the apex court cited supra and Exts.D1 & D2 has no application in view of Section 40, 41, 42 & 43 of the Evidence Act. But the learned Magistrate overlooked the above provisions in the Evidence Act and simply accepted the Civil Court verdict and arrived into a finding against the appellant / complainant. Thus, according to the learned counsel the finding of the court below are liable to be set aside. It is also the submission of the learned counsel that the complainant has produced the Ext.P1 cheque, which pertains to the account of the accused and signed by her, from his possession and therefore the complainant has succeeded in proving the transaction and execution of the cheque. It is also the submission of the Crl.A.No.1873 OF 2005 **4** learned counsel that the complainant made specific averments in the complaint to the effect that though the accused was approached for the payment of the amount, due to from the accused, as per the cheque in question, no payment was effected and therefore, the finding of the court below that there was no demand from the part of the complainant is absolutely incorrect and illegal. It is the further submission of the learned counsel that no convincing explanation is forthcoming from the accused as to how Ext.P1 cheque reached in the hands of the complainant. According to the counsel, the explanation offered are unconvincing and the defence did not examine one Sri. Babu with whom according to the defense the cheque in question was entrusted with. Thus the counsel for the the appellant submits that the finding of the learned Magistrate and the order of acquittal are liable to be set aside. To substantiate the above contentions the learned counsel relies upon the decisions reported in **1993 (2) KLT 237 Iqbal v. Uthaman and 1994 (1) KLT 411 Balakrishna Pillai v.** Crl.A.No.1873 OF 2005 **5** ## **Abdullakutty.** 5. On the other hand, the learned counsel for the respondent vehemently submitted that the findings of the trial court is absolutely correct both factually and legally and therefore no interference is warranted. After taking me through the averments in the complaint and the deposition to PW1 during his cross examination, the learned counsel submitted that the complainant has no specific case regarding the execution and issuance of the cheque and therefore the findings of the learned Magistrate are fully justified. It is the submission of the learned counsel for the respondent that though the learned Magistrate has referred to the decision of the Honourable Supreme Court reported in **2002 (3) KLT 389 SC** and considered the Exts.D1 & D2, the learned Magistrate has tried to find out whether the complainant has succeeded in establishing his case against the accused. It is on the basis of such enquiry and finding, the learned Magistrate finally concluded that complainant has failed to prove the execution of sentence. It is the Crl.A.No.1873 OF 2005 **6** specific submission of the learned counsel for the appellant that the finding of the learned Magistrate is not liable to be interfered unless the appellant succeeding in making out a case and establishing substantial reasons for the same. In support of the arguments, she has placed reliance upon the decision reported in **2008 (1) KLT 257 Gopan v. Tonny Varghese, 2008 (3) KLT 512 Jose v. Joy and 2009 (2) SCC 513 Kumar Exports v. Sharma Carpets.** 6. I have carefully considered the arguments raised by the learned counsel for the appellant and respondents. I have also perused the judgment of the Trial Court and I have gone through the evidence on materials available on record. 7. In the light of the rival arguments advanced by the counsel for the contesting parties and in the light of the findings of the court below particularly in view of the evidence of materials involved the question to be considered is whether the trial court is justified in its findings and acquitting the accused and further whether the appellant has succeeded in making out a case so as to interfere with Crl.A.No.1873 OF 2005 **7** the order of acquittal recorded by the learned Magistrate. The cause of the allegations of the complainant is that the accused, who is a lady obtained ` 1,20,000/ as loan from the house of the complainant on 03.04.2000 and issued Ext.P1 cheque. To substantiate the allegation in the complaint, an affidavit is seen filed by the complainant in lieu of the chief examination. In the affidavit the version is to the effect that he knows the accused and the accused for her purpose borrowed an amount of ` 1,20,000/- and on demanding the amount the accused issued Ext.P1 cheque. In both the complaint as well as in the proff affidavit according to the complainant the entries in the cheque were made by the accused in his presence and also the accused put her signature as well. But during the cross examination, the complainant has stated that ആര�ട� ക�പ�യ�ല എഴ�ത�യത�ട�ന� അറ�യ�മ�� ? (Q) ത�� എഴ�ത� ട��ണ�വന� എട�റ �����ല വച� ഒപ�ട�. (Ans.) When the complainant was asked whether it is correct to say that you have stated Crl.A.No.1873 OF 2005 **8** in the affidavit that in his presence the cheque was written and signed, he said the same was correct. But during the cross examination the complainant has stated that “ Ext.P1 ട ക�പ� ആര�മ�ത�ട�ന� അറ�യ�ല.” PW1 has further stated in his cross examination that “��ശ� വ�ങ�യ ദ�വസ& മരഖ ഒന�& തന�ല.” It is also relevant to note that though the complainant has claimed during cross examination that he had acquaintance with the accused for 8 to 10 years, the details of the acquaintance are not stated. It is also relevant to note that neither in the proof affidavit nor in the complaint the complainant has no case that he had 8 to 10 years of acquaintance with the accused. It is pertinent to note that the complainant has miserably failed in adducing any independent evidence for the alleged transaction. No documents is obtained by the complainant connected with the loan allegedly given to the accused. No evidence or materials produced to show that the friendship or acquaintance of the complainant with the accused was so Crl.A.No.1873 OF 2005 **9** thick to release an amount of ` 1,20,000/- without any security or proper documents. On a close scrutiny of the evidence and materials from the side of the complainant it can be seen that the complainant's evidence is unbelievable and the case of the complainant is improbable. Though in the complaint it was stated that the borrowal of the amount and the issuance of the cheque was on the same date, in the affidavit filed in lieu of chief examination, the cheque was issued subsequently when he demanded the money. During the cross examination he had stated that on the date of borrowal of the amount no documents was given. But in the complaint it is stated that the cheque was given on the date of the borrowal of the amount itself. Further as rightly observed by the learned Magistrate, though he had averred in the complaint and claimed in the proof affidavit that the accused issued the cheque after making written entries and putting his signature, during the cross examination, the complainant has stated that he does not know the handwriting seen in Ext.P1 cheque. So the evidence of PW1 Crl.A.No.1873 OF 2005 **10** is contradictory in nature and not believable and cannot be acted upon safely. The complainant has admitted that he knows the accused who is a lady and she was working as Treasury Officer. In the absence of any concrete and reliable evidence it cannot be believed that accused who is a lady and who was working as Treasury Officer according to whom she has no acquaintance with the complainant, received an amount of ` 1,20,000/- from the complainant. 8. The learned counsel for the respondent has also pointed out that the entries in Ext.P1 cheque are made in Malayalam and the accused who is a Treasury Officer is not expected to fill Ext.P1 cheque in such a passion. In the light of the above facts, evidence and materials on record, I am of the view that the learned Magistrate is fully justified in his finding and the complainant has failed to prove the execution and issuance of the cheque. 9. Another reason for the acquittal recorded by the learned Magistrate is that there was no averments or grievances for the complainant that the accused has not Crl.A.No.1873 OF 2005 **11** paid the amount within the time after service of the statutory demand. The learned Magistrate placed reliance upon the decision **2003 Cr.L.J 520 K.Devaraj v. T.K.Koya** in support of his finding in this regard. In the complaint what stated by the complainant, particularly in paragraph 3 of the complaint is that after the dishonour of the cheque the complainant approached the accused in person and convinced her about the dishonour of the cheque and demanded her to repay the cheque amount and the interest but the accused has not settled the matter and therefore a formal notice was sent to the accused and even though the notice was received by the accused, she has not sent any reply. According to the learned counsel that in the light of the decision reported in **1993 (2) KLT 237, 1994 (1) KLT 411** the above averments are sufficient to treat as valid averments in terms of the proviso to Section 138 of the N.I. Act. 10. I am unable to accept the above contention. Both the above decisions cited by the learned counsel for the Crl.A.No.1873 OF 2005 **12** appellant rendered at the stage when the court considered the application to quash the complaint. In view of the proviso to Section 138 of the N.I.Act, cause of action arose when the drawer of the cheque fails to pay the amount of money to payee within 15 days of receipt of the statutory notice. In the present case there is no specific averments in the complaint or evidence to the effect that the accused has not repaid the amount after demand in the notice after due service of the same on the accused. Therefore, the learned Magistrate is fully justified in his findings refer Point No.2 that the complaint is not maintainable. 11. Both the counsel for the appellant and respondents have raised several arguments based upon the acceptability and relevancy of the findings of the Civil Court particularly as per Ext.D1 & D2 and in the light of the decision of the Honourable Apex Court reported in **2002 (3) KLT 389** . In the light of the foregone discussion I have already found that the findings of the court below independently of Ext.D1 & D2 documents are correct, with respect to the transaction Crl.A.No.1873 OF 2005 **13** claimed by the complainant and to the execution and issuance of the cheque. Therefore I am of the view that for the purpose of disposing this appeal I need not go into the merits or demerits of the contentions raised by the learned counsel for the appellant as well as respondents, regarding the acceptability of the finding of the Civil Court and therefore, that question is left free. 12. In the light of the above facts and findings and the evidence of materials on record and the discussion, I am of the view that the learned Magistrate is fully justified in his findings with respect to the transaction and execution of the cheque and issuance of the same and the maintainability of the complaint due to the absence of proper averments in the complaint in terms of proviso to Section 138, are supported by evidence and materials and these findings have factually and legally correct and the same cannot be treated as perverse on any account. The appellant has no case that the learned Magistrate overlooked any materials or evidence which are in favour of the appellant. Therefore, the Crl.A.No.1873 OF 2005 **14** appellant is miserably failed to make out substantial reasons to interfere with the findings and the order acquittal recorded by the learned Magistrate, and hence the appeal fails. In the result this appeal is devoid of any merit and accordingly the same is dismissed. **V.K. MOHANAN, JUDGE** AV