Crl. Appeal No. 1343 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939** **CRL.A.No. 1343 of 2011 ( ) --------------------------IN CC 757/2009 OF J.M.F.C.-IV, ERNAKULAM DATED 17-02-2011** **Crl.L.P. 358/2011 OF HIGH COURT OF KERALA DATED 24-05-2011** ## **APPELLANT(S)/PETITIONER/COMPLAINANT::** **------------------------------------** **C.R.SANAL KUMAR, S/O.RAGHAVAN, AGED 39 YEARS, CHOOLAKKAL HOUSE, PANANGAD.** ## **BY ADV. SRI.V.K.BALACHANDRAN** ## **RESPONDENT(S)/STATE & ACCUSED::** **-------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM.** **2. MRS.JAYARANI, MANI MANDIRAM HOUSE, UDYOGAMANDAL P.O., ELOOR-683 501.** **R2 BY ADV. SRI.ANTONY MATHEW R2 BY ADV. SRI.GEEN T.MATHEW R1 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BKA/-** ## **K. ABRAHAM MATHEW, J.** -------------------------------------------------- Crl. Appeal No. 1343 of 2011 -------------------------------------------------Dated this the 17[th] day of October, 2017 ## **J U D G M E N T** The appellant was the complainant and the second respondent the accused in CC No. 757 of 2009 on the file of the Judicial First Class Magistrate Court-IV, Ernakulam. The prosecution of the latter was under Section 138 of the Negotiable Instruments Act. The allegation in the complaint was that to discharge her liability to the appellant the second respondent issued him Ext.P1 cheque for 55,000/-; but on presentation it₹ was returned dishonoured with the endorsement, “account closed”; and in spite of demand by notice the second respondent did not pay the amount. The learned magistrate found that the appellant's case is improbable and accordingly, he acquitted the second respondent. The order of acquittal is challenged in this appeal. 2.Heard the learned counsel for the appellant and the Crl. Appeal No. 1343 of 2011 **==> picture [20 x 8] intentionally omitted <==** second respondent. 3.I shall first examine whether the appellant has proved execution of Ext.P1 cheque by the second respondent. In the proof affidavit filed by the appellant, who was examined as PW1, there is not even a whisper that he saw the second respondent execute the cheque. In the cross-examination his case was that the second respondent brought to him a written up and signed cheque. It means that he is unable to prove execution of the cheque by his evidence. So, his evidence does not prove execution of Ext.P1 cheque by the second respondent. The learned counsel submits that the defence version alone is sufficient to prove execution of the cheque by the second respondent. The suggestion made in the cross-examination of PW1 is that in 1995 the husband of the second respondent had borrowed ₹15,000/- from the appellant and as a security for repayment of the amount, he handed over to the appellant two signed blank cheque leaves of the second Crl. Appeal No. 1343 of 2011 **==> picture [20 x 8] intentionally omitted <==** respondent. It is a well settled principle that an admission should be read as a whole. Even if the second respondent can be pinned down to the suggestion made in the cross examination, it cannot be said that it contains an admission of execution of the cheque. What is admitted is that Ext.P1 bears the signature of the second respondent, but, according to her, it was not a cheque, but a signed cheque leaf her husband handed over to the appellant. So, it cannot be said that the second respondent has admitted execution of the cheque. In other words, there is a total lack of evidence to prove execution of Ext.P1 cheque by the second respondent 4.It is now well settled that it is sufficient for an accused to show that he has a probable case. Reliance may be placed on the decisions of the Supreme Court in **Kundan Lal Rallaram** v. **Custodian, Evacuee Property, Bombay** [AIR 1961 SC 1316], **M.S. Narayana Menon @ Mani** v. **State of Kerala &** Crl. Appeal No. 1343 of 2011 ..4.. **Another** [AIR 2006 SC 3366] and **Rangappa** v. **Mohan** [AIR 2010 SC 1898]. The learned magistrate considered the probabilities in the case. I shall examine its correctness. 5.Neither in Ext.P4 notice the appellant issued before the complaint was filed nor in the complaint, the nature or date of transaction or the date of issue of Ext.P1 cheque was disclosed. In the proof affidavit filed by him he stated that the transaction was a loan transaction and the request for the loan was made in the first week of October, 2002. There is no reason for his not giving the above particulars in the notice or in the complaint, he admitted in the cross examination. This is fatal. Reliance may be placed on the decision of the Supreme Court in **Vijay** v. **Laxman** [2013 (3) SCC 86] and the decision of this Court in **Divakaran** v. **State of Kerala** [2016 (4) KLT 233]. - 6.The appellant claims that he lent 1,25,000/- to the₹ second respondent and to discharge the liability she Crl. Appeal No. 1343 of 2011 **==> picture [20 x 8] intentionally omitted <==** issued one cheque for 70,000/- dated 07.11.2002 and₹ Ext.P1 cheque for 55,000/- dated 25.02.2003. The date₹ of issuance of the cheque is not disclosed either in the complaint or in the evidence of the appellant. 7.Is it probable that the appellant advanced a loan of ₹1,25,000/- to the second respondent? In the proof affidavit filed by the appellant, it is stated, “accused is known to him from 1995 onwards”. He had no claim that he had acquaintance with her or she was his friend. In the cross-examination he would say that he had acquaintance with her husband since 1995 and through him he came to know about her. His admission proves that he does not even know where exactly she resided. When it was suggested to him that she resided about 30 km away from his house, he said that it might be true. It is improbable that he would lend 1,25,000/-₹ to the second respondent with whom he did not have any acquaintance. 8.In unequivocal terms the appellant admitted in the Crl. Appeal No. 1343 of 2011 ..6.. cross-examination that he did not have 1,25,000/- with₹ him to enable him to lend it to the second respondent. First he said that he borrowed 50,000/- each from two₹ of his friends. But, later he stated that one of the two persons was not a friend, but was a money lender and from him he borrowed 50,000/- on interest. It is₹ surprising that he did not take even a scrap of paper from the second respondent to evidence the transaction. It is very strange that he lent the huge amount of ₹1,25,000/-, out of which he himself borrowed 50,000/- on loan, free of interest to the₹ second respondent. He had known that the second respondent was in a debt trap. Still he claims to have lent 1,25,000/- to her free of interest without any₹ evidence for the transaction. This is unbelievable. 9.According to the appellant (PW1), the promise was to pay back the amount within one month, but, the second respondent did not fulfill the undertaking. So, he demanded her to pay back the money. On a fine Crl. Appeal No. 1343 of 2011 **==> picture [20 x 8] intentionally omitted <==** morning she went to him and handed over to him two filled up and signed cheques, one of which is Ext.P1. It is improbable that she took a filled up and signed cheque to the creditor and the creditor would accept it. 10.All the facts discussed above unerringly indicate that the case of the appellant may not be true. In fact, I am convinced that it is not true. The evidence compels me to believe that Ext.P1 was a signed blank cheque at the time of its delivery as suggested in the cross-examination of the appellant. The learned magistrate rightly acquitted the second respondent. In the result, this appeal is dismissed. Sd/- **K. ABRAHAM MATHEW JUDGE** bka/- //True copy// PA to Judge