C.KAMARAJ v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934 CRL.A.No. 2743 of 2009 ---------------------[AGAINST THE ORDER/JUDGMENT IN ST.1466/2007 of J.M.F.C.-IV, NEYYATTINKARA DATED 06-11-2009] APPELLANT(S)/PETITIONER/COMPLAINANT: ----------------------------------- C.KAMARAJ, KANJIRANNINNA HOUSE, NELLIMOODU.P.O., NELLIMOODU. BY ADVS.SRI.M.R.SARIN SRI.K.K.SUNIL KUMAR (IDUKKI) RESPONDENTS(S)/STATE & ACCUSED: ------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SASIKUMARAN NAIR.K. PADMASRE, VADAKARA, MARAYAMUTTOM. R1 BY PUBLIC PROSECUTOR SMT.S.SHEEBA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 2743 of 2009** **----------------------------------------** Dated this the 13[th] day of February, 2013 ## **J U D G M E N T** 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 order dated 6.11.2009 in S.T.No.1466 of 2007 of the court of the Judicial First Class Magistrate- IV, Neyyattinkara 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 `4 lakhs and towards the discharge of the said liability, the accused issued a cheque dated 18.4.2007, which when presented for encashment, dishonored due to insufficient fund. It is the further case of the complainant that though statutory notice was served on the accused, no amount is paid and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the ## **Crl.A.No.2743 of 2009** ## **:-2-:** trial of the case, the complainant himself was examined as PW1 and Exts.P1 to P6 were produced. From the side of the defence, DW1 was examined, who is none other than the accused and produced Exts.D1 to D3. The trial court, finally, found that the complainant has not proved the execution of Ext.P1 cheque by the accused for any legally enforceable liability and consequently, the accused is found not guilty and accordingly, 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. M.R.Sarin Panicker, learned counsel for the appellant. Counsel for the appellant vehemently submitted that the complainant is practising as an Advocate and when he was examined, he had deposed in terms of the complaint and the complainant has produced Ext.P1 cheque from his possession which pertains to the account maintained by the accused, but the learned Magistrate, ignoring the above facts and evidence, came into an erroneous conclusion that the complainant has not proved the execution of the ## **Crl.A.No.2743 of 2009** ## **:-3-:** cheque. Thus, according to the counsel, the above finding and order of acquittal recorded by the trial court is liable to be interfered with. 4. I have carefully considered the submission made by the counsel for the appellant and I have gone through the judgment of the trial court. 5. Considering the contention advanced by counsel for the appellant and in the light of the evidence and materials involved in the case, which are referred to in the impugned judgment, and the findings of the court below, the question to be considered is whether the appellant has succeeded in making out a substantial case in support of his challenge against the findings of the court below. Suffice to say, though the complainant is an Advocate, in the complaint, there is no specific allegation supported by any material facts and particulars with respect to the transaction. The appellant has also no case that during his evidence as PW1, he had deposed anything with respect to the details of the transaction. Though there is no clear cut pleading ## **Crl.A.No.2743 of 2009** ## **:-4-:** and evidence with respect to the demand for loan, the date of such demand and the payment thereto, it appears that Ext.P1 cheque is dated 18.4.2007. The complainant has no specific case that such huge amount of `4 lakhs was given to the accused on the basis of Ext.P1 cheque. If that be so, this Court failed to understand as to why such huge amount was given to the accused without obtaining any document or security. So regarding the transaction, absolutely there is no convincing and acceptable evidence. 6. It is also relevant to note that though there is a claim to the effect that the complainant and the accused are friends for the last 7 to 8 years, no details of such friendship are given to justify in paying such a huge amount to the accused without getting any security. It is also relevant to note that the trial court, after a thorough scrutiny of the evidence of PW1, has found that the case of PW1/the complainant about the source of the money is that the amount was contributed by his brother and sister. According to PW1, his brother is in Saudi ## **Crl.A.No.2743 of 2009** ## **:-5-:** Arabia, who gave `2 lakhs and his sister and brother in law have given `2 lakhs. The learned Magistrate has found that PW1 is not aware about the date on which the said amount was obtained from his near relatives and he has also not produced any document to show that he obtained such amounts from his relatives. Most important aspect is that there is no whisper in the deposition of PW1 as to whether the accused has made any formal demand for such a huge amount and in pursuance of such demand, he raised this amount from his relatives. In the absence of those materials and evidence, it is impossible to believe that PW1, who is not having such financial capacity, has lent `4 lakhs to the accused. 7. Regarding the execution of the cheque also, there is no convincing evidence. The learned Magistrate has found that the claim of PW1 is that the accused has signed Ext.P1 cheque in his presence, but the complainant has no idea regarding the authorship of writings in Ext.P1 cheque. Therefore, the learned Magistrate posed a question ## **Crl.A.No.2743 of 2009** ## **:-6-:** as to why the complainant received a cheque for a huge amount of `4 lakhs without enquiring the authorship of the handwriting in Ext.P1. According to me, the above question and the doubt expressed by the learned Magistrate appear to be correct and reasonable. In this juncture, it is pertinent to note that the complainant is not an ordinary person, but he is an Advocate, who is aware about the requirement of a valid cheque, and the consequence of improper and invalid cheque, but PW1 fails to adduce any evidence asserting the execution of the cheque. The complainant has no case that the accused is unable to make entries in Ext.P1 cheque or some other person accompanied him made the entries in the cheque as detected by the accused. So, to prove the execution of the cheque, absolutely there is no cogent and legal evidence. 8. Thus, going by the judgment of the trial court, it can be seen that the trial court refused to accept the case of the complainant and found that the complainant has failed to prove that Ext.P1 cheque ## **Crl.A.No.2743 of 2009** ## **:-7-:** was duly executed by the accused and issued the same towards the discharge of the liability. The above findings are based upon the evidence and materials on record. If that be so, it cannot be said that the above finding of the court below is perverse or illegal. The Apex Court, in the decision reported in **Pudhu Raja** v. **State** [(2013) 1 SCC (Cri) 430], has held that the appellate court can interfere with the order of acquittal only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. It is further held that the appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence. On examination of the facts and circumstances involved in the case, following the above decision, it can be seen that even if an appeal is entertained any further, there is little scope to interfere with the findings of the court below and the order of acquittal. According to me, the appellant has miserably failed to make out any case in support ## **Crl.A.No.2743 of 2009** ## **:-8-:** of his challenge against the impugned judgment of the trial court. Therefore, the appeal fails and accordingly, the same is dismissed. **V.K.MOHANAN, Judge** MBS/ ## **Crl.A.No.2743 of 2009** **:-9-:**