BALAN, S/O THIRUVADATH KANDU v DEVU, D/O KOPPULLY CHATHAI & W/O NADUTHALATHIL SUBRAMANIAN, KATTOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK; STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 19TH DAY OF DECEMBER 2012/28TH AGRAHAYANA 1934 CRL.A.No. 678 of 2008 (D) ------------------------CRLP.624/2007 DATED 22-08-2007 CC.659/1997 of J.M.F.C.,CHAVAKKAD APPELLANT/COMPLAINANT: ------------------------ BALAN,S/O.THIRUVADATH KANDU, THALIKULAM VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.DILIP J. AKKARA RESPONDENTS/ACCUSED/STATE: ---------------------------- 1. DEVU, D/O.KOPPULLY CHATHAI & W/O.NADUTHALATHIL SUBRAMANIAN, KATTOOR VILLAGE, DESOM, MUKUNDAPURAM TALAUK, 680 702. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. R2 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. R1 BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. -----------------------------------Crl.A.No.678 of 2008** ## **-----------------------------------Dated this the 19[th] day of December, 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 as he is aggrieved by the judgment dated 07/07/1999 in C.C.No.659 of 1997 of the court of the Judicial Magistrate of the First Class, Chavakkad 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 he was the convenor of head load workers Co-ordination committee, Thalikulam and the husband of the accused was the treasurer of the said committee who misused the fund of the committee which come to the tune of `50,000/- and undertaking that liability of the husband of the accused and towards the discharge of the same, the accused Crl.A.No.678/2008 : 2 : executed and issued Ext.P1 cheque which when presented for encashment, dishonoured for want of sufficient fund and the accused has not repaid the amount covered by the dishonoured cheque in spite of the statutory notice and therefore according to the complainant the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case the complainant himself has got examined as PW.1 and besides that PWs.2 and 3 are also examined. Exts.P1 to P8 documents are also produced from the side of the complainant. Though no document is produced from the side of the accused, DW.1 was examined as defence witness. After considering the entire evidence and materials on record, the learned Magistrate of the trial court has found that the complainant is not able to prove that the accused has issued Ext.P1 cheque to the complainant for the discharge in whole or in part legally enforceable debt or liability. Consequently, the accused is found not guilty and thus she is acquitted under Section 255(1) of Cr.P.C. Crl.A.No.678/2008 : 3 : It is the above finding and order of acquittal that is challenged in this appeal at the instance of the said complainant. 3. I have heard Sri.Dilip.J.Akkara, learned counsel for the appellant and Adv.Sreekumar.G.(Chelur) for R1. 4. After taking me through the complaint and the deposition of PW.1 and particularly Ext.P7 reply notice issued by the accused, the learned counsel submitted that the trial court on an erroneous conclusion held that, with respect to the cheque involved in the case the accused has filed a complaint before the Superintendent of Police and also found that the allegation in that complaint was that the complainant in the present case had obtained a blank cheque under threat. But, according to the learned counsel, on a reading of Ext.P7 reply would show that the accused has not filed any complaint before any police authorities with respect to Ext.P1 cheque and the subject matter of the complaint referred to by the learned Magistrate is with respect to the allegation that the complainant and his henchmen obtained cheque and Crl.A.No.678/2008 : 4 : stamp paper from the husband of the accused and his brother. But the learned Magistrate has misconceived the above facts. It is also the submission of the learned counsel that, going by the complaint and the evidence of PW.1 it can be seen that, the complainant has succeeded in proving the execution of Ext.P1 cheque especially when the signature of the accused in Ext.P1 is admitted and therefore, the presumption is available in favour of the complainant. But the learned Magistrate has committed a wrong in not extending that benefit in favour of the complainant. Therefore, according to the learned counsel for the appellant, the findings of the court below are liable to be set aside and the order of acquittal recorded in favour of the accused is required to be interfered and liable to be reversed. 5. On the other hand, the learned counsel for the respondent strenuously submitted that the complainant has no locus standi to file the complaint and to prosecute the accused since he failed to show any authority to prosecute the accused on behalf of the above mentioned Crl.A.No.678/2008 : 5 : co-ordination committee. It is also the submission of the learned counsel that, the defence has succeeded in probabilising its case that the cheque in question was obtained under threat and coercion and therefore the learned Magistrate is correct in his finding that the cheque was obtained under threat. Thus, according to the learned counsel, no interference is warranted. 6. I have carefully considered the arguments advanced by the learned counsel for the appellant and the respondent and I have gone through the evidence and materials on record. I have also perused the judgment of the trial court. 7. In the light of the rival contentions and also in the light of the evidence and materials on record, the question to be considered is whether the appellant has succeeded in making out any ground to interfere with the findings of the court below and whether the complainant has succeeded in making out any compelling or substantial reason to interfere with the order of acquittal recorded in favour of the accused. As I indicated earlier, Crl.A.No.678/2008 : 6 : the specific case of the complainant is that, the amount due to the co-ordination committee, of which the complainant is the convenor, from the husband of the accused, the accused undertook the liability and towards the discharge of that liability, she executed and issued Ext.P1 cheque. In the complaint it is specifically averred that:- “ ആയത�ന�ല ച�മട� തത�ഴ�ല�ള� ക��ഡ�കനഷന �മറ�ക�മടക� ത��ട�കകണത�യ ബ�ന�ത ത�രക �നത�ന�യ� 24/1/97 ത�യത� പ(ത�യ�) ഭര+�വ- സ�പബമണ�ന�) പ(ത�യ�തട സക0�ദരന�യ _K_ . _C_ . ക4�(�യ5) �5ട� ക��ഡ�കനഷന �മറ� ആഫ�സ�കലകവര��യ�) ബ�ദ�ത ത�രക�നത�ന�യ� രണ� മ�സത+ അവധ� ആവശ;ത<ട��യ�) അത�പ(��ര) പ(ത� അന;�യക�രന- 25/3/97 ത�യത�തവച- സ�നഡ�കകറബ�ങത�ശ5ര ശ�ഖയ�കലകNo.436462-)0ന)(റ�യ� (അ)(ത�ന�യ�ര)) ര5(ക- ഒര � തചകഎഴ� ത� ഒ<�ട- നല��യ�ട�ളത�ണ-. _”_ So, as per the version of the complainant in the complaint, the accused along with her husband and her brother came to the office of the co-ordination committee on 24/01/1997 and there was a settlement, in pursuant to which, the accused executed and issued a post dated cheque on 24/01/1997 bearing date 25/03/1997. In this juncture, it is relevant to note that, when the complainant Crl.A.No.678/2008 : 7 : issued Ext.P4 notice, there was no whisper in the said notice that the amount was due to the so-called committee and towards that the accused executed and issued the cheque. A casual perusal of Ext.P4 would show that the transaction mentioned therein was only a simple and personal hand loan transaction between the complainant and the accused. There is also no reference of any liability that due to the committee from the husband of the accused and the accused undertook that liability and issued the said cheque. So, though the averment in the complaint is not in terms with Ext.P4 notice, when the complainant was examined as PW.1 particularly during his cross-examination, he had categorically deposed before the court that: “ - - - - തള�ക�ള) തസനറ�ല തവച�ണ തചക ഒ<�ട തനത . office ല വച- തചക- ഒ<�ട- തന�ട�ല. office ല വചതന� എന� - _“_ അന;�യ+�ല ��ണ�നത ശര�യല. The above version of PW.1-the complainant diametrically opposed to the averment in the complaint. 8. In this juncture, it is relevant to note that, even according to the complainant, the entire prosecution was Crl.A.No.678/2008 : 8 : for and on behalf of the co-ordination committee, but no document is produced to show that the complainant is authorised to prosecute the accused based upon Ext.P1 cheque, for and on behalf of the said co-ordination committee. In this juncture, it is also relevant to note that, going by the evidence of PW.1, it is further seen that, the account of the co-ordination committee is periodically audited and there were proper accounts maintained by the said committee. If that be so, according to me, if the case of the complainant is correct, I failed to understand as to why the complainant has obtained a personal cheque in the name of the complainant himself instead of getting cheque in the name of the said committee. It is in the above backdrop of the case and drawback of the complainant's case, the defence set up by the accused has to be examined. From the case set up by the accused, it appears that, Ext.P1 cheque was obtained under threat and coercion and she has not executed and issued the said cheque as claimed by the complainant. It is true as rightly pointed out by Crl.A.No.678/2008 : 9 : the learned counsel for the appellant that the defence has no consistent case with respect to the threat and coercion under which Ext.P1 cheque was obtained. It is true in Ext.P7 reply, though several facts are stated, there is no whisper to the effect that Ext.P1 cheque was obtained from the accused under threat or coercion. But, through the deposition of DW.1, it can be seen that, at the instance of the accused complaint was filed against the complainant herein before the Superintendent of Police, Thrissur, which was ultimately forwarded to the Sub Inspector of Police, Vadanappally and various allegations raised in the said complaint against the complainant and his henchmen. Going by Ext.P7 reply notice, it can be seen that, the accused has raised a complaint, against the complainant and his henchmen with respect to various overt act of the complainant and the incident allegedly taken place on 29[th] and 30[th] of December, 1996 and 20[th] and 21[st] of January, 1997, etc. Even though these facts were stated in Ext.P7 reply, when the complaint was filed, the averment are to the effect that Ext.P1 cheque Crl.A.No.678/2008 : 10 : was executed and issued from the office of the coordination committee which fact is not proved by producing any independent evidence or material. Thus, according to me, in the light of the facts and circumstances involved in the case and especially in the light of the admissions and the averments of the complainant in the complaint and view of the contradiction in the evidence during his deposition, the accused has succeeded in making out a probable case as to how Ext.P1 reached the hands of the complainant. The defence is always entitled to raise divergent plea. The defects or improbabilities of the defence case are not ground to accept the case of the complainant. Thus, the resultant conclusion is that, the complainant has miserably failed to prove the transaction claimed by him and the execution and issuance of the cheque connected with such transaction. Whereas, the accused has succeeded in probablising his case as to how Ext.P1 cheque reached at the hands of the complainant. Therefore, according to me, the learned Magistrate is Crl.A.No.678/2008 : 11 : fully justified in his finding that Ext.P1 cheque was not executed and issued by the accused towards the discharge of any liability due to the complainant. 9. The findings of the court below, according to me, are supported by evidence and materials on record and therefore it cannot be said that those findings are perverse or illegal so as to interfere in appeal against the order of acquittal. 10. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that, “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.” Thus, on examination of the facts and circumstances involved in the present case, in the light of the dictum Crl.A.No.678/2008 : 12 : laid down by the Apex Court in the decision cited supra, according to me, the appellant has miserably failed to make out a case so as to interfere with the findings of the court below and the order of acquittal recorded in favour of the accused and therefore, the appeal fails. In the result, this appeal is dismissed accordingly. **V.K.MOHANAN, JUDGE.** skj