C. Thankaraj v. Gireesh Kumar and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2012-07-06
Court Decision / Holding: Appeal dismissed; the trial court’s acquittal is upheld and the prosecution’s case under Section 138 NI Act remains unproven.
Final Disposition: Appeal dismissed; acquittal sustained

Parties to the Case

Appellants / Petitioners

C. Thankaraj, Proprietor, M/S Jaya Agencies, Poojappura, Trivandrum

Respondents

Gireesh Kumar, S/o. Sadasivan Nair, RSLB-99, Mohanam, Kesavan Nair Road, Poojappura, Trivandrum-12
State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri G.S. Reghunath

Counsels for Respondents

• Sri S. Krishna Kumar
• Smt. K.V. Jayant hi
• Smt. Laliza T.Y. (Public Prosecutor)

Case Synopsis & Summary

This is a criminal appeal under Section 138 of the Negotiable Instruments Act by the complainant, C. Thankaraj, challenging an acquittal in STC No. 280 of 2006 by the Judicial First Class Magistrate-VI, Thiruvananthapuram. The complainant alleged that the accused, Gireesh Kumar, issued a cheque dated 15 May 2004 for Rs. 1,40,000 in discharge of a loan, which was dishonoured for insufficient funds; despite a statutory notice, repayment did not occur. The trial court held that the complainant failed to establish a legally enforceable debt and that the pleadings connected with the loan and the issuance/execution of the cheque were inadequate, resulting in acquittal under Section 255(1) Cr.P.C. On appeal, the appellant argues that Ext. P1 cheque was issued toward discharge of liability; the cheque bears the accused’s signature and execution is proved, and the trial court overlooked these facts. He also points to Exts. X1–X2 (bank records) and notes that Ext. P1 predates or pre-dates the account details, casting doubt on the timing and linkage of the transaction. The appellant relies on State of Rajasthan v. Darshan Singh to argue that appellate courts may interfere in exceptional circumstances. The High Court, however, dismisses the appeal, affirming the trial court’s acquittal as no exceptional/compelling grounds are shown.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 255(1) Cr.P.C.

Legal Doctrines & Maxims

Presumption of innocence
Limited jurisdiction of appellate courts to interfere with acquittals (exceptional/compelling circumstances) as per State of Rajasthan v. Darshan Singh

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that Ext. P1 cheque was issued towards discharge of the liability; the signature on Ext. P1 proves execution; the trial court’s analysis overlooked crucial facts and evidence, including Exts. P1–P5 and Ext. X1–X2, which show the cheque originated from the accused’s bank account and relate to a pre-existing loan transaction. He argues the pleadings sufficiently connect the alleged debt with the cheque; the appellate court should reclassify the evidence and hold that an offence under Section 138 NI Act has been made out.

Contentions of Respondents

The respondents contend that the complainant failed to prove a legally enforceable debt; there is no proper pleading tying the loan transaction to Ext. P1; Ext. X1–X2 demonstrate issues with date and issuance; the bank records undermine the prosecution’s case; thus the trial court’s acquittal was justified and should be sustained. The evidence does not establish the requisite connection or pre-dated cheque to sustain an offence under Section 138 NI Act.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Rajasthan v. Darshan Singh @ Darshan Lal	2012 (4) Supreme 72	Positive	Cited to emphasize that appellate interference with an order of acquittal is limited to exceptional circumstances, reinforcing the presumption of innocence and the trial court’s findings.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934** **CRL.A.No. 456 of 2007 (Y)** **------------------------(AGAINST THE JUDGMENT IN ST.280/2006 of J.M.F.C.-VI, TRIVANDRUM, DTD.9.1.2006)** **APPELLANT(S)/APPELLANT/COMPLAINANT: ----------------------------------** **C.THANKARAJ, PROPRIETOR, M/S.JAYA AGENCIES POOJAPPURA, TRIVANDRUM.** **BY ADV. SRI.G.S.REGHUNATH** **RESPONDENT(S)/RESPONDENTS/ACCUSED AND STATE: --------------------------------------------** **1. GIREESH KUMAR,S/O.SADASIVAN NAIR, RSLB-99,MOHANAM,KESAVAN NAIR ROAD POOJAPPURA, TRIVANDRUM-12.** **2. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERANKULAM.** **BY ADV. SRI.S.KRISHNAKUMAR BY ADV. SMT.K.V.JAYANTHI SMT.LALIZA T.Y., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A No. 456 of 2007 ----------------------------------------** Dated the 6th day of July, 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 9.1.2006 in S.T.Case No.280 of 2006 of the court of Judicial First Class Magistrate-VI, Thiruvananthapuram by which the learned Magistrate acquitted the accused under section 255 (1) Cr.P.C. 2. The case of the complainant is that, towards discharge of the liability, the accused issued Ext.P1 cheque dated 15.5.2004 for a sum of Rs.1,40,000/- and when the said cheque presented for encashment, the same was dishnoured for want of sufficient fund in the account of the accused and the accused has not repaid the amount in spite of statutory notice served on him and thus the accused has committed the offence punishable under section 138 of the Negotiable Instruments CRL.A.456/07 **:-2-:** Act. To substantiate the allegation, the complainant himself mounted to the box and got examined as PW1 and produced Exts.P1 to P5. From the side of the defence, DWs 1 and 2 were examined but no defence exhibits is produced. Exts.X1 and X2 were also marked as court exhibits. The trial court finally found that the complainant has failed to establish that the cheque was issued in discharge of a legally enforceable debt and no offence is made out. Consequently, the accused is acquitted. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri G.S.Raghunath, the learned counsel appearing for the appellant and also perused the judgment and the evidence on record. 4. The learned counsel for the appellant has strenuously submitted that actually, Ext.P1 cheque was issued by the accused towards the discharge of the liability connected with the loan availed by the accused from the complainant. It is also the submission of the learned counsel that Ext.P1 cheque contains the signature of the accused and therefore the execution is proved but the learned Magistrate, overlooking the above CRL.A.456/07 **:-3-:** facts and evidence and materials, came into a wrong conclusion and acquitted the accused. Therefore, the counsel submits that such finding and order of acquittal are liable to be interfered with. 5. I have carefully considered the arguments advanced by the learned counsel for the appellant and also scrutinised the evidence and materials on record. 6. In the light of the arguments advanced by the learned counsel for the appellant, and the evidence and materials on record, the question to be considered is whether the appellant has succeeded in making out a case so as to interfere with the finding of the court below and the order of acquittal recorded by the trial court in favour of the accused. Going by the complaint of the appellant, it can be seen that there is no specific avernments supported any materials with respect to the transaction under which the complainant released an amount of Rs.1,40,000/- to the accused as loan. It is brought on record to the effect that Ext.P1 cheque is one among the cheque leaves given to the accused by his banker on 23.9.2004, pertains to the account, which was opened in the name of the CRL.A.456/07 **:-4-:** accused on 7.8.2004 as evidenced from Exts.X2. Ext.X1 is the extract of the cheque issue register which would show that the cheque leaves bearing serial Nos. 021221 to 021230 were issued to the accused on 23.9.2004. Ext.P1 cheque bears serial No.021222. The said facts and datas shows that, on the date which bears Ext.P1 cheque, even the account was not opened. So absolutely, there is no explanation and evidence as to how Ext.P1 cheque, which really issued from the bank of the accused on 23.9.2004, reached in the hands of the complainant on 15.5.2004. Suffice to say, there is no averment in the complaint that pre-dated cheque was given. In the absence of proper and sufficient pleadings, regarding the transaction in which the liability arose, and the pleadings connected with the issuance and execution of the cheque, it cannot be said that the complainant has succeeded in establishing an offence against the accused under section 138 of the N.I Act. Thus, according to me, the trial court is fully justified in its finding and acquitting the accused under section 255(1) Cr.P.C. In a recent decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the CRL.A.456/07 **:-5-:** Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: “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.” The appellant in the present case has miserably failed to make out any exceptional case or compelling reasons to interfere with the order of acquittal recorded by the trial court. Therefore, this appeal is devoid of any merit. Accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE** kvm/- CRL.A.456/07 **:-6-:** **V.K.MOHANAN, JUDGE** **kvm/-** CRL.A.456/07 **:-7-:** **JUDGE** **V.K.MOHANAN,** CRL.A.456/07 **:-8-:** kvm/- CRL.A.456/07 **:-9-:** ## **V.K.MOHANAN,** **JUDGE** kvm/- CRL.A.456/07 **:-10-: V.K.MOHANAN, JUDGE** kvm/- CRL.A.456/07 **:-11-:**