Crl.A.No.205 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 31ST DAY OF JULY 2012/9TH SRAVANA 1934** ## **CRL.A.No. 205 of 2008 (A)** **------------------------AGAINST THE ORDER/JUDGMENT IN CRLP.718/2007 DATED 24-09-2007 CC.515/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLLAM** **APPELLANT/COMPLAINANT: ----------------------** **C. RAVEENDRAN PILLAI, CHELLAM, PUNTHALATHAZHAM, KOLLAM.** **BY ADVS.SRI.N.D.PREMACHANDRAN SRI.D.AJITHKUMAR** ## **RESPONDENT(S)/ACCUSED AND STATE:** **--------------------------------** **1. UMADEVI THANKACHI B., VENDERPACHA, T.C.NO.36/869, NEAR U.P.SCHOOL, PALKULANGARA, THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY ADV.SMT.LALIZA.T.Y., PUBLIC PROCECUTOR R1 BY ADV.SRI.P.B.SURESH KUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **V.K.MOHANAN, J. ------------------------------------------Crl.A.No.205 of 2008 -------------------------------------------Dated this the 31[st] day of July, 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 31/08/2005 in C.C.No.515 of 1998 of the court of the Judicial Magistrate of the First Class-I, Kollam 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 has borrowed an amount of Rs.1,30,000/- from the appellant at his residence on 05/01/1998 and issued a post dated cheque bearing dated 05/03/1998 for the said amount and when the cheque presented for encashment the same was dishonoured on 25/3/1998 for the reason that “fund insufficient in the account of the accused” and according to the complainant though a notice was sent informing the accused regarding the dishonour of cheque and demanding the cheque amount, no amount was paid but sent a reply stating untenable contention and therefore the accused has committed the offence punishable under Section Crl.A.No.205/2008 2 138 of the N.I. Act. During the trial of the case the complainant himself was examined as PW.1 and produced Exts.P1 to P5 documents. From the side of the defence the accused herself mounted to the box and got examined as DW.1 and besides Dws.2 and 3 were also examined. Exts.D1 to D4 documents are also produced from the side of the defence. Ext.X1 series of report of expert opinion are also marked. The trial court after considering the evidence and materials has found that there is misuse and material alteration in the cheque and thereby the accused is entitled to get the benefit of doubt. On the basis of the above findings the learned Magistrate acquitted the accused under Section 255(1) of Cr.P.C and it is the above finding and order of acquittal challenged in this Appeal. 3. Counsel for the appellant vehemently submitted that the findings and order of acquittal recorded by the trial court is incorrect and illegal. It is the submission of the learned counsel that the learned Magistrate without understanding the true meaning of Sections 138 and 118 of the N.I. Act, not given the benefit thereunder to the complainant and came into an erroneous conclusion that there is misuse and material alteration Crl.A.No.205/2008 3 in the cheque. According to the learned counsel the learned Magistrate has given undue importance to the alleged signature of the complainant that on the counter foil of Ext.P1 cheque and said approach of the learned Magistrate is wrong. It is also the submission of the learned counsel that the learned Magistrate has erroneously found that the cheque in question issued on 13/11/1994 since the cheque book issued on 13/11/1994. According to the learned counsel even during the stage of 313 examination, the accused has not denied the execution of the cheque and mentioned about the material alteration and hence the trial court is wrong in acquitting the accused. 4. On the other hand counsel for the respondent submitted that Exts.D1 to D3 documents would show that there was no transaction between the complainant and the accused as claimed by him in the complaint. According to the counsel for the respondent, the accused has borrowed only a sum of Rs.30,000/- from the complainant during the year 1994, and a cheque was obtained as security which now misused for the purpose of the present case after making material alteration in the cheque in question. According to the learned counsel the Crl.A.No.205/2008 4 amount borrowed from the complainant was repaid with interest and the complainant refused to return the cheque which was obtained as security, stating that the same was lost from his possession. It is the further submission of the learned counsel that in the light of the evidence and materials on record the accused/respondent has succeeded in making out a probable case and therefore the learned Magistrate is perfectly correct in acquitting the accused and therefore no interference is warranted. 5. I have carefully considered the arguments advanced by the learned counsel for the appellant and respondent and I have perused the judgment of the trial court. I have also scrutinised the evidence and materials on record. 6. In the light of the rival contentions advanced by the learned counsel for the appellant and the respondent and in the light of the evidence and materials on record, the question to be considered is whether the impugned judgment is vitiated due to any illegality or impropriety or irregularity, and whether the appellant has succeeded in making out any exceptional case or compelling circumstance to interfere with the order of acquittal Crl.A.No.205/2008 5 recorded by the trial court or established that the judgment impugned is perverse one. The crux of the allegation of the complainant is that the accused who is a lady borrowed a sum of Rs.1,30,000/- from the complainant on 05/01/1998 and on the very same date issued Ext.P1 which is a post dated cheque, therein the date shown as 05/03/1998 for a sum of Rs.1,30,000/-. Whereas the case of the defence is that the accused borrowed an amount of Rs.30,000/- from the complainant and at the time of borrowing the said amount, Ext.P1 cheque was given as security endorsing the amount in figure as Rs.30,000/-. It is the further case of the accused that the said amount was repaid with 18% interest. Thus according to the accused there is no liability and as such according to the defence the accused is no way indebted to the complainant. 7. To prove the case of the complainant there is no independent evidence other than the interested version of PW.1. No document is produced to prove the transaction. Ext.P1 is the cheque and Ext.P2 is the dishonoured memo. Exts.P3 to P3(b) are the documents connected with the statutory demand. Ext.P4 is the reply notice issued by the defence. Exts.P5 and P6 are Crl.A.No.205/2008 6 ledger extracted and cheque returned register of account No.4189. The learned Magistrate has already found that two other cases are pending in similar nature instituted at the instance of the complainant but against the other accused persons. Therefore the learned Magistrate is of the opinion the complainant is a person who lends money to different persons. On the basis of the available materials and evidence it appears to me the above findings of the learned Magistrate are proper and correct. Though the complainant has stated that the accused are known to him for last 15 to 20 years, there is no evidence on materials to show the depth of the acquaintance so as to give such a huge amount without demanding the interest and any other document. In this juncture it is relevant to note that the accused has already sent Ext.P4 reply notice denying the claim of the complainant and also denying the transaction. Still then no concrete or acceptable evidence is produced by the complainant to substantiate his claim regarding the transaction and the borrowal of Rs.1,30,000/- by the accused from him. According to me, we have to consider the case of the complainant, in the back-drops of the defence advanced by the Crl.A.No.205/2008 7 accused. In order to prove the defence the accused has produced Exts.D1, D2 and D3. Ext.D1 is the counter foil of Ext.D1 cheque and Ext.D2 is the counter foil of Ext.D3 cheque of the husband of the accused given to the complainant as security. In Ext.D1 counter foil the complainant has endorsed his signature wherein the amount is shown as Rs.30,000/-. In Ext.D1 the writings of the complainant is specifically marked as Ext.D1(a). Similarly in Exts.D2 and D2(a) also shows that the complainant has affixed his signature. There is no serious dispute that the cheque book pertains to the year 1994. In the absence of any positive evidence to show that Ext.P1 cheque was issued during the year 1998, especially when cheque book was issued in 1994, the case of the complainant cannot be believed and the said fact probabilise the case of the accused especially in the light of Exts.D1, D1(a), D2 and D2(a). In the complaint the case of the complainant is only with respect to one transaction which according to him took place on 05/01/1998 and that too for an amount of Rs.1,30,000/-. The complainant has no case either in the complaint or in the chief examination about any other transaction with the accused. So absolutely there is no Crl.A.No.205/2008 8 explanation as to how he had affixed his signature in Exts.D1 and D2 counter foil connected with Exts.D1(a) and D2(a) endorsements. In this juncture it is relevant to note that even though a reply notice was already sent to the statutory notice sent by the complainant, even at the time of filing the complaint or at the time of chief examination, no case is put forward by the complainant with respect to any other transaction supported by an explanation, so as to justify Exts.D1(a) and D2(a) endorsement made in Exts.D1 and D2 counter foils and his signatures affixed thereon. Therefore the defence has succeeded in making out a probable case. 8. It is true that though the defence has taken a contention to the effect that alteration is made in Ext.P1 cheque by putting one in front of the figure 30,000 and also by making entries in words with respect to the amount, the same is not substantiated and the expert evidence does not support the same. But according to me the failure on the part of the defence to substantiate its particular plea is not a ground to accept the case of the complainant as true and to hold as proved beyond reasonable doubt. In the absence of positive evidence regarding Crl.A.No.205/2008 9 the transaction as claimed by the complainant it cannot be said that the complainant has succeeded in proving his allegation against the accused beyond reasonable doubt. To satisfy myself, I have verified the endorsement contained in Ext.P1 cheque. According to me there is no similarity in the letters used for making the endorsement about the amount in words and the signature. The figure 3 seen, in the amount written in figure and the date of the cheque, not similar and according to me there is difference in the same and particularly the pen and ink used. In the light of the above discussion and the evidence and materials referred to above I am of the view that the trial court is fully justified in its finding and acquitting the accused. 9. In the 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 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 Crl.A.No.205/2008 10 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 dictum laid down by the Apex Court in the decision cited supra, I am satisfied that the appellant has miserably failed to make out an exceptional case or substantial reason to interfere with the findings of the court below or to show that the impugned judgment is perverse. Therefore, there is no merit in this appeal and accordingly the same is dismissed. ## **V.K.MOHANAN, JUDGE** skj