BRAHMAGIRI CHITS INDIA (P) LTD v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 16TH DAY OF JANUARY 2013/26TH POUSHA 1934 CRL.A.No. 2200 of 2010 ( ) -------------------------- AGAINST THE JUDGMENT IN ST.171/2008 DATED 31-12-2009 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, MAVELIKKARA APPELLANT/COMPLAINANT: ---------------------- M/S.BRAHMAGIRI CHITS INDIA (P)LTD SABARI TOWER,10TH MILE,ERUMAKKUZHY MURI NOORANAD VILLAGE REPRESENTED BY ITS MNAGER(LEGAL) CHANDRASEKHARAN UNNITHAN,S/O.RAGHAVAN UNNITHAN NALAYYATHU VEEDU,MUTHUKATTUKARA MURI,PALAMEL VILLAGE BY ADVS.SRI.UNNIKRISHNAN.V.ALAPATT SMT.ANITHA M.N. (EKM) RESPONDENT(S)/STATE AND ACCUSED: -------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. SUJAMONY, W/O.SREEKUMAR, LATHA SADANAM, ALAPPUZHA,NEDUBHAGOM,CHAMPAKULAM PO.-688505 R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR, J. ========================== CRL.APPEAL. No.2200 OF 2010 ==========================** Dated this the 16[th ] day of January, 2013 ## **JUDGMENT** This appeal is directed against the judgment of acquittal passed by the Court of the Judicial First Class Magistrate-II, Mavelikkara in S.T.No.171 of 2008. The appellant who was the complainant therein filed a complaint against the second respondent/accused alleging commission of offence under section 138 of the Negotiable Instruments Act. The appellant is a company conducting chitty transaction. The case of the appellant is that the husband of the second respondent/accused was a subscriber to one of its chitties for an amount of Rs.1,00,000/-. He bid the chitty and obtained the prize amount. The second respondent/accused was one of the sureties and they jointly executed Ext.P4 joint promissory note in favour of the complainant. The husband of the second respondent who is the bidder **Crl.A.2200/10** 2 thereafter committed default in paying the amount. Consequently, a notice was issued to the second respondent as well as her husband. On receipt of the notice, the accused came to the complainant company and executed Ext.P3 cheque for Rs.79,625/- drawn on the Federal Bank Limited, Champakulam Branch. On its presentation, the cheque was dishonoured for want of sufficient funds in the account of the accused. Thereupon, statutory notice demanding the amount covered by Ext.P3 cheque, was issued to the second respondent within the statutorily prescribed period. The second respondent failed to pay the amount covered by the said cheque within the statutorily prescribed period. It was in the said circumstances that the complaint under section 138 was filed against the second respondent. 2. The second respondent entered appearance on summons. After complying with the procedural formalities charge was framed against the second respondent and she pleaded not guilty. To prove **Crl.A.2200/10** 3 the charge against the second respondent, PW1 and PW2 were examined and Exts. P1 to P11 were marked. On closure of the complainant's evidence, the accused was questioned under section 313 of the Code of Criminal Procedure. All the incriminating circumstances put to the accused were denied by her. After analysing the evidence on record, the learned Magistrate held that the appellant had failed to produce any evidence whatsoever evidencing chitty transaction and also that cheque in question was issued by the accused/second respondent for discharging a legally enforceable liability. In fact, all the points framed for consideration were found against the complainant and consequently, the accused was acquitted under section 255(1) of the Code of Criminal Procedure. 3. Certain undisputed and indisputable facts have to be taken note of in this case. The second respondent had denied the execution of Ext.P3 cheque. There is no dispute regarding the said position by **Crl.A.2200/10** 4 the appellant. Neither PW1 nor PW2 deposed as to the date on which Ext.P3 cheque was executed. So also, they did not depose before the court as to the date on which the accused came to the office of the complainant and executed Ext.P3 cheque. When that be the case, the execution of the said cheque could be proved by examining the person who had actually witnessed its execution. No witness who had actually witnessed the execution of Ext.P3 cheque was admittedly examined. Obviously, the appellant did not take any step for bringing in expert opinion in terms of the provisions under section 67 of the Evidence Act. In short, despite the denial of Ext.P3 cheque, the appellant had not resorted to any of the methods recognised under law for proving its execution. This position is not at all disputed by the appellant. In the said circumstances, the decision of this Court in **Gopan v. Tonny Varghese** reported in **2008 (1) KLT 257** assumes relevance. This Court held that when execution of a cheque is denied by accused, it is for the complainant to establish the execution of the **Crl.A.2200/10** 5 concerned cheque. When execution of the cheque is not proved by the complainant, presumption available under section 139 would not be available to the concerned complainant. It was further held therein that where the execution is disputed and not proved, the complainant has to let in evidence to prove the original transaction. In such circumstances, the question is what was the evidence let in by the appellant to prove the original transaction. That point was considered in detail by the trial court. The trial court observed taking into account the denial of execution of Ext.P3 cheque that it is the duty of the complainant/ appellant to prove that the complainant is entitled to recover the amount mentioned in Ext.P3 cheque. In other words, the burden to show that the amount figured in Ext.P3 cheque is the legally recoverable debt, was on the appellant and the question is whether the appellant had let in evidence to discharge that burden. The trial court discussed the entire evidence and came to the conclusion that the appellant had failed to prove the said crucial aspect. The appellant **Crl.A.2200/10** 6 would depose through PW1 and PW2 that there were chitty transactions between the complainant company and the husband of the accused. At the same time, the indisputable and undisputed fact is that no documents whatsoever was produced before the court to prove the original transaction viz., the chitty transaction between the appellant company and the husband of the second respondent. In paragraph 12 of the judgment it was observed thus:- “Even according to the complainant, there were documents to prove that, there were chitty transaction in between the complainant and the husband of the accused. But nothing has been produced by the complainant to prove their case.” 4. No case was put forth by the appellant that such documents pertaining to the chitty transaction were actually produced before the trial court. When a party claimed the existence of documents but withheld the same the irresistible presumption can only be that there is no such document as claimed or that those documents would go against the said party, if produced. But, the question is **Crl.A.2200/10** 7 whether the appellant had succeeded in proving that the amount figured in Ext.P3 cheque is the amount which is legally recoverable and arising out of the alleged chitty transaction. There cannot be little doubt with respect to the fact that in any chitty transaction, the chittal is bound to maintain the ledgers revealing the transaction. True that in this case the complainant deposed that documents revealing such transactions are available. Admittedly, no such documents to prove the fact that the amount shown in Ext.P3 cheque is the legally recoverable debt arising out of the chitty transaction between the complainant and the husband of the accused and further that the second respondent is legally bound to discharge the said debt, have been produced. The appendix revealing the documentary evidence adduced in this case would not reveal that any such document has been produced before the trial court. In fact, the appellant did not have a case that any such document was produced. Learned counsel for the appellant when faced with such a situation made a submission **Crl.A.2200/10** 8 that the appellant may be granted an opportunity to produce such documents. I am afraid such an opportunity cannot be granted. That will certainly be amount to granting of an opportunity to fill in the lacuna in the prosecution case. It is also to be noted that the appellant did not file any application, legally sustainable, seeking for production of documents in this appeal. There is absolutely no case for the appellant that no opportunity was granted or available to the appellant to produce such documents before the trial court. As noticed hereinbefore the appellant had not adduced any evidence to prove the execution of the cheque and that it was issued to discharge a legally enforceable debt. When there is no case for the appellant that such documents to prove those points were actually produced and were not properly appreciated in a case of judgment of acquittal this Court can only hold that no prima facie case was made out by the appellant. For the reasons stated above, it can only be hold that the appellant had failed to bring out any illegality or perverseness in the impugned **Crl.A.2200/10** 9 judgment warranting appellate interference. The finding of the trial court cannot be said to be against the weight of evidence. In such circumstances, this appeal is liable to fail and accordingly, it is dismissed. ## **Sd/-** **C.T. RAVIKUMAR** **(JUDGE)** **spc/** **Crl.A.2200/10** 10 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **Crl.A.2200/10** 11