C.N. Prabhakaran Nair v. S. Divakaran Nair and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934 CRL.A.No. 1631 of 2011 (D ) -------------------------ST.412/2010 of J.M.F.C.-II, ALUVA CRLP.695/2011 DATED 05-08-2011 APPELLANT/COMPLAINANT: ------------------------ C.N. PRABHAKARAN NAIR, AGED 71 YEARS, S/O NARAYANA PILLAI,PERUMPADAPPU HOUSE, EAST DESOM, ALUVA-3. BY ADVS.SRI.P.N.SUKUMARAN SRI.JAISON JOSEPH RESPONDENTS/ACCUSED AND STATE: -------------------------------- 1. S. DIVAKARAN NAIR, S/O.SANKARA PILLAI, KIZHAKKEPURATH(UTHRADOM),EAST DESOM.P.O ALUVA-683103. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,PIN-682031. R2- BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. R1- BY ADV. SRI.KURIAN ANTONY EDASSERY R1- BY ADV. SRI.BOSE K.THACHIL R1- BY ADV. SMT.ANN EMIL JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No.1631 of 2011 ---------------------------------------------Dated this the 09[th] day of November, 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 order dated 06/06/2011 in S.T.No.412 of 2010 of the court of the Judicial Magistrate of the First Class-II, Aluva 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 towards the discharge of the debt owed to the complainant the accused issued two cheques bearing registration No.069066 and 069067 both dated 20/11/2009 and when the cheques presented for encashment the same were dishonoured for want of sufficient fund in the account of the accused and the accused has not repaid the amount covered by the dishonoured cheque and therefore the Crl.A.No.1631/2011 : 2 : accused has committed the offence punishable under Section 138 of the N.I. Act. 3. During the trial of the case, the complainant himself mounted to box and got examined as PW.1 and Exts.P1 to P7 were marked. No witness was examined or document produced from the side of the defence. The trial court, after considering the entire evidence and materials on record, came into a conclusion that the prosecution has failed to prove the execution of cheque properly. On the basis of the above finding the accused is found not guilty and he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that is challenged in this appeal. 4. Heard the learned counsel for the petitioner Sri.P.N.Sukumaran, and Adv.Sri.Kurian Antony Edassery, the learned counsel for the first respondent/accused. 5. The learned counsel for the appellant vehemently submitted that the accused has admitted his signature in Exts.P1 and P2 cheques and therefore the appellant/complainant is entitled to get presumption Crl.A.No.1631/2011 : 3 : under Section 139 of the N.I. Act. It is the further case of the counsel for the appellant that the accused/respondent has not even cared to issue a reply to Ext.P4 notice which is one of the circumstances that can be taken against the accused. Further it is the contention of the learned counsel that the accused has also admitted the transaction with the complainant and though he had raised plea of discharge, no evidence is adduced in support of such plea. But the learned Judge ignoring all the above facts and circumstances which are in favour of the complainant went wrong in holding that the complainant has not proved the case beyond reasonable doubt. 6. On the other hand the learned counsel for the respondent vehemently submitted that the complainant has miserably failed to prove the transaction claimed by him and also the execution of the cheque which are essential ingredients to attract the offence under Section 138 of the N.I. Act. According to the learned counsel, the complainant has no consistent case in the complaint, the Crl.A.No.1631/2011 : 4 : proof affidavit and also during the term of crossexamination about the transaction and execution of the cheque. The details of transaction, execution and issuance of the cheque are not properly pleaded and proved. According to the learned counsel, the trial court is fully justified in its finding because of the inherent defect of the prosecution and the appellant has not succeeded in making a case so as to interfere with the order of acquittal. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioner and respondent. I have gone through the judgment of the trial court and evidence and materials on record. 8. Though the complainant is not specific, his case is that the accused borrowed a sum of `.2,00,000/- from him and on the date of borrowing the amount the accused issued Exts.P1 and P2 cheques which, when presented for encashment, were dishonoured. Whereas the specific case of the defence is that he has not borrowed Rupees Two lakhs from the complainant as claimed by him and no Crl.A.No.1631/2011 : 5 : cheque was executed and issued as stated in the complaint. According to the accused the cheques in question were obtained by the complainant connected with an earlier transaction and though the dues were paid off, the cheques were not returned but misusing the same, the present complaint is filed. In the light of the rival contentions advanced by the counsel for the appellant and the respondent and in the light of the evidence and materials on record the question that emerges for consideration is whether the trial court is justified in its finding and in acquitting the accused and further question to be considered is whether the appellant has succeeded in making out a case so as to interfere with such finding and order of acquittal recorded in favour of the accused. So, I have carefully perused the complaint preferred by the appellant in the present case. There is no specific pleadings regarding the transaction. As I indicated earlier it has been stated in the complaint by the complainant towards the transaction that “the accused has borrowed Rupees two Crl.A.No.1631/2011 : 6 : lakhs from the complainant for his business. In discharge of the debt the accused owed to the complainant the accused has issued two cheques” mentioned above. It is further stated that at the time of issuance of cheques accused made believe that there would be sufficient fund in the bank account and cheque will be honoured. The date, place, etc. with respect to the demand of the loan and payment of the same are not mentioned in the complaint. In the proof affidavit the complainant has stated that: മ�ല ന�പറ�ല� പപത � _,_ വ�ദ�യ�ല ന�ന�� 20/09/2009 ത�യത� ബ�സ�നസ� ആവശ�ത�മ�ക� മവണ� 2,00,0000/ര$പ �$ന ���സത�ന�ള�ല ത�ര�ല& തര�ല�ന വ�വസയ�ല &ട��യ� വ�ങ�യ�ര�ന�. ട� ത�& ത�ര�ല& തര�ന ആവശ,ത�മ�ക� മവണ� പപത� ബ�ങ� ഓഫ� ഇന2, _,_ ആ�ങ�ട� പബ�ഞ�ല� 20/11/09 ത�യത� ലവച� 1,00,000/ര$പയ�ലട 069066-ആ� ന�പര ല8ക�� 1,00,000/- ര$പയ�ലട 069067-ആ� ന�പര ല8ക�� വ�ദ�ക� നല&�&യ�ണ�യ�. This is the crucial part of the chief-examination of the complainant. It cannot be said that the above part of the chief-examination is in support of any specific pleadings Crl.A.No.1631/2011 : 7 : in the complaint, since in the complaint no such pleadings are raised. As I indicated earlier, the place and date of payment, the further understanding, if any etc. are not mentioned in the complaint. It is also relevant to note that in the complaint there is no averment to the effect that the amount was paid for a period of three months as stated in the proof affidavit. Going by the proof affidavit of the complainant it is also not crystal clear as to when the cheque was handed over. So, regarding the transaction neither in the complaint nor in the proof affidavit the complainant has any specific case. It is true that during the cross-examination he has stated that: “പപസ ല&�ട �തമ=�ള തലനയ�ണ� ല8ക� വ�ങ�യത�. ��&�സ��� 3 ��സ� എന�ണ� പറഞ�ര�നത�.ല8ക�&ള പപത�ല&�ണ�വര�&യ�യ�ര�ന�. _”_ As rightly observed by the learned Magistrate, there is no whisper in the deposition of PW.1 either in the proof affidavit in lieu of chief-examination or during the crossexamination that he had seen the accused executing the cheques in question. The specific case is that the Crl.A.No.1631/2011 : 8 : accused had brought the filled up cheques. So, according to me, the above evidence of PW.1-the complainant cannot be believed because there are certain circumstances which create doubt with reference to the transaction claimed by the complainant. Nowhere, the complainant has got a case that the accused has previously demanded him Rupees Two lakhs. On going through the evidence of PW.1 it appears that the accused demanded the money and paid it on the same day itself and the accused handed over the filled up cheques. So the transaction claimed by the complainant cannot be believable. It is also relevant to note that there is no explanation as to why the accused has handed over two cheques of the same date of the same bank for same amount and there is also no explanation from the side of the complainant for receiving such two cheques towards the discharge of a total debt of `2,00,000/-. According to me the learned Magistrate of the trial court is fully justified in his observation with respect to the cheques since the cheuqes in question contain all the writings Crl.A.No.1631/2011 : 9 : including the signature in Ext.P1 made in one particular ink, but the date alone in another ink. It is under these circumstances the case of the defence becomes relevant. 9. While denying the transaction and claim raised by the complainant and the execution and issuance of the cheques, the specific case advanced by the accused is that there was transaction with the complainant and the whole money which was in due, had been paid off before October, 2009. But the cheques given by him at the time of borrowing the money were not given back and the present case was filed misusing those cheques. According to the accused, the complainant had not given `.1,50,000/- which was supposed to be the price of construction charges with respect to the house of PW.1. I have already found that the transaction and claim of the complainant connected with Exts.P1 and P2 cheques are unbelievable for the reasons stated therein. Suffice to note that the complainant has no case with respect to the transaction prior to October, 2009 either in the complaint or in the proof affidavit. Though the previous transaction Crl.A.No.1631/2011 : 10 : was not disclosed by the complainant, he was forced to admit the same when he was subjected to severe crossexamination. The said fact shows that the complainant has not approached the court with clean hands. In the present case no duty is cast upon the accused to rebut the presumption as contemplated under Section 139 of the N.I. Act., since the complainant has miserably failed to prove the execution and as the accused has not admitted the execution. But with the aid of the circumstances, which I mentioned above, particularly with respect to the date regarding the transaction claimed by the complainant and in the absence of any proof of execution of cheque and more particularly in the light of the fact that the signature and other entries are made in the cheque, in one particular ink but the date alone seen in another ink, the accused has also succeeded in discharging his burden under Section 138 of the N.I. Act to rebut the presumption. 10. Thus going by the judgment of the trial court it can be seen that the findings of the court below are Crl.A.No.1631/2011 : 11 : supported by the materials and evidence on record and therefore it cannot be said that the judgment of the trial court is perverse or its findings are illegal. 11. Though the learned counsel cited and argued on the strength of decision reported in **Rangappa Vs. Sri Mohan** (2011) 1 SCC (Cri)184, according to me, because of the factual difference in the decision cited in that case does not apply in the present case. 12. 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, according to me, the appellant has miserably failed to make out any case to show that the findings of the Crl.A.No.1631/2011 **==> picture [26 x 9] intentionally omitted <==** court below and the order of acquittal are perverse. Therefore there is no merit in this appeal and accordingly the same is dismissed. Sd/- **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge