Babu v. Achuthan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 13TH DAY OF FEBRUARY 2012/24TH MAGHA 1933 CRL.A.No. 1091 of 2003 ( ) -------------------------CC.121/2000 of J.M.F.C.-III, PUNALUR APPELLANT: -----------BABU, S/O. KUNJUKUTTY, KALEECKAL PADINGATTETHIL, KARAVOOR, PIRAVANTHOOR VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, MINI BABU, D/O. VARGHESE, -DO-DO- BY ADV. SRI.REJI MATHEW KAVALAYIL RESPONDENTS: -------------1 ACHUTHAN, AGED 58, S/O. SANKARAN, MOOLAKUNNIL HOUSE, PUNNALA, PIRAVANTHOOR VILLAGE, KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. M/S.SMT.C.G.PREETHA & B.SURESH KUMAR R2 BY PUBLIC PROSECUTOR SMT. LALIZA T.Y THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 1091 of 2003 ----------------------------------------** Dated the 13th day of February, 2012 ## **JUDGMENT** The complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act is the appellant herein as he is aggrieved by the judgment dated 31.5.2002 in C.C.No.121 of 2000 of the court of Judicial First Class Magistrate-III, Punalur by which the learned Magistrate acquitted the accused under section 255(1) Cr.P.C. 2. The case of the complainant is that the complainant is the holder in due course of Ext.P1 cheque which was issued by the accused in favour of one Smt. Achiyamma for consideration and issued by the drawer. The said cheque when presented for encashment, dishonoured stating the reason 'funds insufficient' in the account maintained by the accused. According to the complainant, though a registered notice was sent demanding for payment of the dishonoured cheque amount, the accused did not accept the same and no amount was paid and, therefore, according to the complainant, the CRA 1091/03 2 accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. With the above allegation, the complainant approached the court of Judicial First Class Magistrate-III, Punalur, upon which cognizance was taken for the offence punishable under section 138 of the NI Act and accordingly, instituted C.C.No.121/2000. During the trial of the case, from the side of the complainant, PW1, the power of attorney holder of the complainant , who is none other than the wife of the complainant, was examined. PW2, the bank manager is also examined from the side of the prosecution. Exts.P1 to P7 documents were also produced and marked. From the side of the defence, the accused himself mounted to the box and got examined as DW1. He had also produced Exts. D1 and D2. The trial court finally found that the complainant failed to establish that Ext.P1 cheque was issued in discharge of a legally enforceable debt and hence no offence under section 138 of the NI Act will stand against the accused. Accordingly, the accused is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Shri Reji Mathew, the learned counsel for CRA 1091/03 3 the appellant and Sri B. Suresh Kumar, the learned counsel appearing for the Ist respondent. 4. According to the learned counsel for the appellant, the finding of the learned Magistrate contained in paragraph 5 of the judgment to the effect that, the endorsement made from Sadar Airport, Bombay shows that the accused reached India only on 25.2.95, is incorrect and in no way help the accused since the said endorsement in Ext.D1 passport would show that the accused left India on 25.2.95. But the specific case of the complainant is that the accused borrowed a sum of Rs.34,960/on 15.2.95. Counsel for the appellant further submitted that, on the strength of the decision of this Court in **Pearl Food Products v. Pareed Rawther** (2000(1) KLJ 463), the learned Magistrate ought not have read the complaint and the sworn statement disjunctively. According to the learned counsel, the finding of the court below that, the mere admission of the signature in a negotiable instrument alone is not sufficient to prove execution of the cheque, is not correct in the light of the facts and circumstances involved in the case. According to the learned counsel, the accused has admitted his signature in CRA 1091/03 4 Ext.P1 cheque and he had also admitted that he had met Achiyamma within the period from December 1994 and 25[th] February 1995. It is also pointed out by the counsel that the banker of the accused was not informed about the loss of the cheque leaf. It is also the submission of the learned counsel that no evidence is adduced from the side of the defence to prove the alleged theft of cheque leaf. Thus according to the learned counsel, in the absence of any positive evidence in support of the claim of the defence about the loss or theft of Ext.P1 cheque, especially, when the accused admitted the signature in Ext.P1, the findings of the court below that the complainant failed to prove the execution of cheque and not extending the benefit under section 139 of the NI Act, is incorrect and illegal. 5. On the other hand, the counsel for the Ist respondent/accused strenuously submitted that the findings of the court below is based upon evidence and materials available on record and there is no perversity in the findings of the court below. It is also the submission of the learned counsel that the prosecution has miserably failed to prove its case beyond reasonable doubt. In support of the above submission, it is CRA 1091/03 5 pointed out by the learned counsel that in the complaint there is no specific averments regarding the date of the alleged borrowal and the issuance of the cheque. According to the learned counsel, Ext.P1 cheque bearing the date 30.5.95, and as per the evidence of PW1, the amount was borrowed on 15.2.95 and issued the cheque, but the exact date of issuance of the cheque not mentioned nowhere. Neither in the complaint, nor in the statutory notice, there is no claim that a post dated cheque was given. Thus according to the learned counsel for the Ist respondent, regarding the execution and issuance of the cheque and the transaction connected with the cheque in question, absolutely there is no evidence and therefore no interference is warranted with the findings of the court below and the order of acquittal recorded by it. 6. I have carefully considered the rival arguments advanced by the counsel for the appellant as well as the respondent. I have also perused the judgment of the trial court and scrutinized the evidence and materials on record. 7. In the light of the rival pleadings and in the light of the evidence and materials on record, the question to be considered CRA 1091/03 6 is whether the trial court is justified in its finding which I indicated earlier acquitting the accused for the offence punishable under section 138 of Act. 8. The specific case in the complaint as disclosed from the complaint is that, the complainant is the holder in due course of Ext.P1 cheque which was issued by the accused in favour of one Achiyamma and the drawee of the cheque transferred the same to the complainant. But no details are given in the complaint regarding the transaction under which the cheque in question was issued. In this case, it can be seen that though it is stated in the complaint that Ext.P1 cheque was given in the name of one Achiyamma, the complaint was filed by one Babu and the complaint was prosecuted by PW1, who is the wife and power of attorney holder of the said Babu. The trial court has specifically found during the examination of PW1 that the said Achiyamma was very much present in the court. No reason is forthcoming as to why the prosecution wilfully refused to examine Achiyamma, the original payee of the cheque. 9. In the chief examination, PW1 has stated that the accused came in their house on 15.2.95 and demanded CRA 1091/03 7 Rs.35,000/- and paid Rs.34,960/-. It is further stated by PW1 that the accused issued a cheque which can be encashed during the month of May 1995. But it is relevant to note that in the complaint, no specific date of the borrowal is mentioned. There is no allegation in the complaint to the effect that a post dated cheque was given when the accused borrowed the amount. The absence of the above two material facts will certainly go against the complainant. The defence has also disputed the handwriting under which the entries are made in Ext.P1 cheque. On a perusal of the entries that seen in Ext.P1 cheque, it can be seen that the pen and ink used for putting the signature and other details are not one and the same. It is also relevant to note that there is difference in the signature and the writing of the name of accused on the reverse side of Ext.P1 cheque. Thus it can be seen that though the actual payee claimed to be the said Achiyamma, though she was present present in the court, was not examined. If the case of the complainant is true, the said Achiyamma is the best person to depose about the transaction and the execution and issuance of the cheque in question, but that evidence is withheld by the prosecution for the best reason CRA 1091/03 8 known to them. As there is difference in the ink and pen used for putting the signature in Ext.P1 and the other endorsement, in Ext.P1 cheque , especially when the said Achiyamma - the payee, is not examined, it cannot be said that the complainant has succeeded in proving the execution and issuance of the cheque. 10. In this juncture, it is relevant to note that the specific case of the accused is to the effect that the cheque in question was stolen from the room of the accused by one of his room mates. During the cross examination of PW1, it was put to her: “ വ�ദ�യ�െ�ട അള�യന Sabu Gulf ല ജ��ല� െ�യ�ന�. Sabu വ�� പ�ത�യ�� ഒര�മ�ച�ണ�ത�മസ�ച�ര�നത�(Q) .അറ�യ�ല. ” PW1 further deposed before the court that : “ Sabu വ�െ# Gulf ല െ$�ണ� ജ��യത� ആര�ണ� എന� എ#�യ�(റ�യ�ല.” The ignorance expressed by PW1 about the fact which she is expected to know shows that the case of the defence as such cannot be ruled out. It is also assured by PW1 during the cross CRA 1091/03 9 examination that, **“** post dated cheque ആണ� തനത� എന� വ()ലജ#�ട)സ�ല �റയ�ത�ര�യ�(�ന പ�ജത+$�ച� $�രണ� ഒന�� ഇല. അ#+�യത�ല �റയ�ത�ര�യ�(�ന പ�ജത+$�ച� $�രണ� ഇല.''. Suppression regarding the exact date of borrowal of the amount in the complaint and nonmentioning about the handing over of the post dated cheque, especially when the handwriting and the ink and pen used in making the endorsement in Ext.P1 cheque, justifies the explanation offered by the accused as to how Ext.P1 cheque reached at the hands of the complainant . Thus going by the evidence and materials and the findings of the court below, it can be seen that the learned Magistrate by assigning proper and convincing reasons refused to believe the case of the complainant about the execution and issuance of the cheque as well as the transaction under which Ext.P1 cheque allegedly issued. There is no case for the appellant that the learned Magistrate has overlooked any evidence or materials available on record which are in favour of the complainant. On examination of the findings of the court below in the light of the evidence and materials on record, it cannot be said that the findings of the court below are perverse or illegal. No CRA 1091/03 10 substantial reason is made out so as to interfere with the order of acquittal recorded by the trial court and to disturb the double presumption secured by the accused by the impugned judgment. Therefore, there is no scope for any interference with the findings and the order of acquittal recorded by the trial court. In the result, there is no merit in the appeal and accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE** kvm/- CRA 1091/03 11