Chandran s/o Narayanan Nair v. Sateesan M.S. and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934 CRL.A.No. 1583 of 2009 ----------------------[AGAINST THE JUDGMENT DTD.29.11.2008 IN CC.308/2007 of the ADDITIONAL MUNSIFF AND THE JUDICIAL FIRST CLASS MAGISTRATE,IRINJALAKUDA] APPELLANT(S)/PETITIONER/COMPLAINANT: ----------------------------------- CHANDRAN,S/O.NARAYANAN NAIR, MULLAKKARA HOUSE,MUTTITHADY DESOM, KALLUR VILLAGE MUKUNDAPURAM TALUK. BY ADV. SRI.RAJESH CHAKYAT RESPONDENTS(S)/ACCUSED: ----------------------- 1. SATEESAN M.S.,S/O.SAHADEVAN, MAROTTIKKUNNEL HOUSE,PUDUKAD P.O.,THRISSUR. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.R.SURAJ KUMAR & SRI.N.AJITH. R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX** (CRL.A.NO.1583 OF 2009) APPELLANT'S EXHIBIT: Annexure I: Original Copy of the medical certificate dated 23.4.2009. -true copy- P.S.TO JUDGE. ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1583 of 2009** **----------------------------------------** Dated this the 21[st] day of November, 2012 ## **J U D G M E N T** The complainant in a prosecution for the offence 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 29.11.2008 in C.C.No.308 of 2007 of the court of Additional Munsiff and Judicial First Class Magistrate, Irinjalakuda 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 borrowed an amount of `80,000/- from the complainant in the month of January 2006 with an understanding that the same would be returned within three months and thus, on demand, the accused issued Ext.P1 cheque dated 29.6.2006, for an amount of `80,000/-, which when presented for encashment, dishonoured for want of sufficient fund and the accused has not repaid the amount in spite of the statutory notice sent to him. Thus, according to the complainant, the Crl.A.No.1583 of 2009 :-2-: accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, Pws.1 to 3 were examined and Exts.P1 to P5 were marked. No evidence either oral or documentary was produced from the side of the defence. The trial court, after having considered the entire evidence and materials, came to a conclusion that the accused had not issued Ext.P1 cheque in discharge of his liability towards the complainant and accordingly, the accused was found not guilty and consequently, he is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri.Rajesh Chakyat, learned counsel for the appellant. I have perused the judgment of the trial court. 4. Counsel for the appellant, after taking me through the judgment of the trial court, particularly paragraphs 7 and 8, submitted that the learned Magistrate of the trial court has committed wrong in acquitting the accused even though the accused has admitted the Crl.A.No.1583 of 2009 :-3-: signature in Ext.P1. According to the learned counsel, though the defence has set up a case as borne out from Section 313 statement, no evidence is adduced to substantiate such version. Thus, according to the counsel, as the accused has admitted the signature, the learned Magistrate ought to have extended the benefit under Section 139 of the N.I.Act in favour of the complainant. But the learned Magistrate without considering the above legal and factual aspects, went wrong in acquitting the accused. 5. I have carefully considered the arguments advanced by the counsel for the appellant and I have perused the judgment of the trial court. 6. In the light of the arguments advanced by the counsel for the appellant, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the judgment of the trial court and the finding and it is to be further considered whether the appellant has made out any substantial Crl.A.No.1583 of 2009 :-4-: reason to interfere with the order of acquittal recorded by the trial court in favour of the accused. 7. As rightly observed by the learned Magistrate, which is not disputed, the complainant has no specific case with respect to the loan availed of by the accused. When the complainant was examined, the evidence given by him with respect to the execution of the cheque is that the accused brought a written cheque and put his signature in front of him. So, it is on the basis of the above evidence of PW1, the counsel submitted that the complainant has succeeded in proving the execution of cheque. I am unable to sustain the above contention. In the present case, the specific case taken by the accused is that the cheque in question is one given in blank form to Hindu Trust belonging to the complainant connected with the chitty transaction. So, the accused has got a case as to how Ext.P1 cheque, belonging to his account, came in the possession of the complainant. It is true that no evidence is adduced to substantiate the above claim. It is now well Crl.A.No.1583 of 2009 :-5-: settled that the question of rebutting the presumption by the accused arises only when the complainant proves the execution of cheque or the execution is admitted by the accused. So the question to be considered is in the given facts and circumstances of the case, whether the accused has burden when rebutting the presumption. Regarding the execution, the only interested version of PW1 is that the accused has brought a filled up cheque. No explanation is forthcoming from the part of the complainant why he accepted a filled up cheque brought by the accused. The complainant has no case that the accused is illiterate and he is unable to fill up the cheque in his presence. It is pertinent to note that even according to the complainant, there was frequent transaction between the complainant and the accused. If that be so, it was for the complainant to prove with satisfactory reason as to why the accused brought a filled up cheque and he accepted the same. The learned Magistrate has also found that the complainant has to prove whether all the entries in the cheque have been written by Crl.A.No.1583 of 2009 :-6-: the accused or whether it has been written by another person as directed by the accused. In the absence of any plausible and convincing explanation for such a type of transaction, according to me, the same will tally with the case of the accused or probablise the case of the defence that the cheque in question was given as blank one as a security to Hindu Trust of the complainant connected with the chitty transaction. So according to me, on the basis of the available materials, it can be seen that the complainant has miserably failed to prove the execution of the cheque. If that be so, the accused has no burden to rebut the presumption because in the present case, the complainant is not entitled to give presumption as he has not proved the execution of cheque. Thus, according to me, the reasons given by the learned Magistrate in support of his finding and order of acquittal appears to be correct, especially when the same is supported by the materials and evidence adduced by the complainant himself. If that be so, it cannot be said that the finding of the court is perverse or illegal. Crl.A.No.1583 of 2009 :-7-: ## 4. In a recent decision of the Apex Court reported in **State of** ## v. **Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “ _In cases where there are exceptional 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 above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question. Therefore, I find no ground to interfere with the findings of Crl.A.No.1583 of 2009 :-8-: the court below, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. Thus, according to me, the appellant has miserably failed to make out a probable case in support of his challenge against the judgment of the trial court and also failed to make out any substantial reason to interfere with the order of acquittal recorded in favour of the accused. In the result, this Criminal Appeal is dismissed. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.1583 of 2009 :-9-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 Crl.A.No.1583 of 2009 :-10-: ## **JUDGMENT** Dated:11.11.2011 -1583