E. Narayanan Namboothiri v. Girija and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **MONDAY, THE 30TH DAY OF JULY 2012/8TH SRAVANA 1934** ## **CRL.A.No. 863 of 2007 ( )** **------------------------CC.13/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOTTARAKKARA --------------** ## **APPELLANT/COMPLAINANT :** **-------------------------------------------** **E.NARAYANAN NAMBOOTHIRI, AGED 47 YEARS, S/O EASWARAN NAMBOODIRI, THEKKE UZHITHRAPPALLY ILLOM, THEVANNOOR, AYUR VIA, KOTTARAKKARA, KOLLAM DISTRICT.** **BY ADVS.SRI.K.P.RAMACHANDRAN SRI.C.S.MANILAL** ## **RESPONDENTS/ACCUSED & STATE :** **------------------------------------------------------** **1. GIRIJA, W/O PALAKKAT MOHANDAS, MOHAN CAFE, MUTTASSERY, VANKATANGU PAVARATTY, CHAVAKKAD, THRISSUR.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY BY ADVS. SRI.RAJIT SRI.RANJIT BABU** **R2 BY PUBLIC PROSECUTOR SMT. LALIZA T.Y.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Mn** ## **V.K.MOHANAN, J. ------------------------------------------Crl.A.No.863 of 2007 -------------------------------------------Dated this the 30[th] 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 02/02/2007 in C.C.No.13 of 2007 of the court of the Judicial Magistrate of the First Class-III, Kottarakkara 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 husband of the accused borrowed altogether 2670 Oman Riyals from the complainant on various occasions and on each occasion, the husband of the accused issued Oman cheques, six in numbers, which are marked as Ext.P9 series in the complaint. It is the further case of the complainant that on the advice of the husband of the accused, the accused issued Ext.P1 cheque dated 25/02/2005 for an amount of Rupees Three lakhs, which when presented for encashment, dishonoured stating that the 'account closed' and the accused has not repaid the amount, in spite of a statutory notice served on her and therefore, the accused has Crl.A.No.863/2007 2 committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, the complainant himself was examined as PW.1 and Exts.P1 to P9(d) were marked. On the basis of the available evidence on materials and record and the rival contentions advanced, the learned Magistrate has framed five points for his consideration among which the first point is whether the accused issued Ext.P1 cheque to the complainant in discharging a legally enforcible debt or other liability. In answer to the above question, the learned Magistrate has found that there is no circumstance brought by the complainant to establish that there is a transaction between the complainant and Palakkad Mohan Das and the accused issued Ext.P1 cheque to the complainant in discharge of that liability. It is the above findings and the other findings against the appellant, the complainant preferred this appeal and also against the order of acquittal recorded in favour of the accused. 3. I have heard Sri.K.P.Ramachandran, the learned counsel for the appellant and Sri.Rajith, learned counsel for the first respondent. 4. The learned counsel for the appellant vehemently submitted that the complainant was not having any case that Crl.A.No.863/2007 3 there was transaction between the complainant and the accused, but the specific case put forward by the complainant is to the effect that the liability of the husband of the accused that arose out of the transaction between the complainant and the husband of the accused, was undertaken that liability and the accused, after due execution of Ext.P1 cheque, issued the same in favour of the complainant. But, the learned Magistrate failed in appreciating the above case of the complainant and went wrong, and found the first point formulated by the court below against the appellant. After taking me through the pleading in the complaint, the learned counsel submitted that Ext.P1 cheque, after its due execution was issued by the accused on the basis of the advice given by the husband of the accused. According to the learned counsel, there are sufficient pleadings in the complaint and in Ext.P4 statutory notice and in the proof affidavit and also in the deposition of PW.1. Counsel submits that the learned Magistrate overlooked the above pleadings and evidence and came into a wrong conclusion. It is also the submission of the learned counsel that the accused, during her examination under Section 313 of Cr.P.C., has no case that she has not issued the cheque towards the discharge of the liability Crl.A.No.863/2007 4 of her husband. It is also the submission of the learned counsel that the defence has no explanation as to how Ext.P1 cheque pertaining to the account of the accused, reached in the hands of the complainant and the said fact itself is sufficient for a statutory presumption in favour of the complainant regarding the liability. It is also the case of the appellant that Ext.P1 cheque contains all the details of the account of the complainant and the cheque was given in the address of the complainant and those facts are sufficient to prove that the accused has issued Ext.P1 cheque towards discharge of the liability of her husband, otherwise or without the instruction of her husband, she may not be in a position to furnish details of the account of the complainant in Ext.P1 cheque and the address of the complainant. Thus the counsel submits that the finding of the court below is against the facts and circumstances of the case and evidence and therefore, the findings are liable to be set aside and the accused is liable to be convicted for the offence under Section 138 of the N.I. Act. 5. On the other hand, the learned counsel for the respondent submitted that the complainant has miserably failed to prove his case against the accused beyond reasonable doubt Crl.A.No.863/2007 5 and in order to substantiate the above submission, learned counsel invited my attention to Ext.P4 notice where the liability is shown as 1,720 Oman Riyals and same is the pleading in the complaint. But, during the evidence of PW.1, PW.1 has stated that the liability was 2,670 Riyals and though PW.1 gave an explanation during the cross-examination, there is no pleading to that effect in the complaint. It is also pointed out by the learned counsel that in the complaint, the complainant has claimed that the cheques were sent to the complainant in his address, but during the evidence, PW.1 has stated that the cheques were sent to the brother of the complainant. The learned counsel has also submitted that the complainant has miserably failed to prove the liability or the consideration connected with Ext.P1 cheque and therefore, Section 138 of N.I. Act is not attracted. 6. I have carefully considered the arguments advanced by the learned counsel for the appellant and the respondent. I have also perused the judgment of the trial court and the evidence and materials on record. 7. In the light of the rival contentions advanced by the counsel for the appellant as well as the respondent and in the light of the evidence and materials on record, the question to be Crl.A.No.863/2007 6 considered is whether the appellant has succeeded in making out a prima facie case so as to entertain the appeal any further and to interfere with the order of acquittal recorded by the trial court in favour of the respondent/accused. As I indicated earlier, the crux of the complainant's case is that the husband of the accused indebted to the complainant and towards the discharge of the said liability, the accused executed and issued Ext.P1 cheuqe. From the above averment of the complainant, it is crystal clear that even according to the complainant the transaction is between the complainant and the husband of the accused. Of course to prove the above transaction the complainant has produced Exts.P7 and P9 Oman cheque leaves. To prove the financial transaction claimed by the complainant, except Exts.P7 and P9 cheque leaves, no other document is produced. Ext.P9 consists of six Oman cheques. According to the complainant, the amount was borrowed by the husband of the accused on several occasions and the husband issued the following cheques of bank Muscat dated 30/01/2004 for OMR 250.000, cheque dated 10/03/2004 for OMR 400, cheque dated 15/03/2004 for OMR 150, cheque dated 22/08/2004 for OMR 120 and finally cheque dated 12/10/2004 for OMR 800. There is no specific pleading in Crl.A.No.863/2007 7 the complaint as to when and how and where these cheques were executed and issued. Admittedly the complainant has no case that he maintains account in any of the banks in Oman or any account other than in Kerala and no convincing explanation is forthcoming for obtaining Ext.P9 series of cheque under the above ground. It is also relevant to note that no explanation is forthcoming as to why the four cheques other than Ext.P7 not presented for encashment. It is also relevant to note that Ext.P7 cheque claimed to have been presented for encashment through the account of one Adil Mohammed Al Balushi an Oman national. Ext.P7 is a cash cheque and the same is not in the name of the complainant. If that be so, in the absence of any strict proof that Ext.P7 was executed and issued to the complainant and presented through the account of the above mentioned Omanion national, it cannot be said that there was transaction between the complainant and husband of the accused and those cheques were issued to the complainant towards the discharge of any liability. In this juncture it is relevant to note that the accused has got a case that the husband of the accused has to give blank cheque to his employer for the purpose of releasing the passport, visa, etc. and there is no dispute that the person whose name is Crl.A.No.863/2007 8 shown in the dishonoured memo with respect to Ext.P7 is Adhil Muhammed Al Baloshi who is the employer of the husband of the accused. So the case of the defence probabilise to that extend that Ext.P7 is not given to the complainant. So considering the those facts according to me there is no evidence to show that the husband of the accused is indebted to the complainant. 8. The specific case of the complainant is that to discharge the liability of the husband of the accused, she issued Ext.P1 cheque. Of course to attract the liability under Section 138 of the N.I. Act, the liability need not be that of the account holder itself since the words used in Section 138 of the N.I. Act for the discharge are “in whole or in part of any debt or other liability” [Emphasis supplied]. So anybody can undertake to discharge the liability of any other person and towards discharge of that liability in terms of such undertaking can issue cheque and if such cheque is dishonoured as contemplated under Section 138 of the N.I. Act certainly the liability will be attracted. Therefore, in the given facts and circumstances of the case, it is incumbent upon the complainant to plead and prove that the accused undertook the liability, if any, of her husband Crl.A.No.863/2007 9 and towards the discharge of that liability, issued the cheque in question. Now, let us examine the pleading and the evidence in this case. Of course as pointed out by the learned counsel for the appellant in paragraph 2 of the complaint, there is an averment to the effect that on the advise of Sri.Mohan Das in discharge of his debt, the accused has drawn cheque No.677754 for an amount of Rupees Three lakhs with a post dated 25/02/2005 on The South Indian Bank Ltd., Mullassery Branch (Thrissur) and sent it to the complainant's house address at Thevannur. Though I have repeatedly gone through the other averments contained in the complaint, there is no pleading as to how and when the accused issued Ext.P1 cheque after the dishonour of Ext.P7 cheque at Oman. There is no pleading in the complaint or evidence to the effect that after the dishonour of Ext.P7 cheque dated 17/10/2004, whether there was any negotiation or settlement or whether the accused has assured the complainant and undertook to discharge the liability of her husband etc. There is a long gap, ie., nearly four months, from the date of dishonour of Ext.P7 cheque and the date of Ext.P1 cheque. Thus it can be seen that absolutely there is no pleading in the complaint to show that the accused undertook the liability, Crl.A.No.863/2007 10 if any, that of her husband towards the complainant. So the complainant has miserably failed to plead and prove about the liability of the accused to the complainant. Except the bald averment to the effect that Shri.Mohan Das advised the accused, there is no pleading and proof with respect to such advice. 9. The learned counsel for the appellant submitted that since the particulars of the account of the complainant contained in Ext.P1 cheque and the accused sent Ext.P1 cheque to the address of the complainant itself is sufficient to show that the accused undertook the liability. I am unable to sustain the above contention. I have perused Ext.P1 cheque. Without the assistance of an expert it can be seen that in the endorsements in Ext.P1, except the signature all other endorsements are made up of different ink and pen. The letters used in Ext.P1 cheque has no similarity that contained in the signature. There is no specific pleading and proof to show as to how the accused came to know the details of the account of the complainant, either directly or by furnishing the same through the husband of the accused. In the absence of any evidence in this regard and considering the difference in the letters and the ink used for making endorsement in the cheque and the signature according Crl.A.No.863/2007 11 to me those facts probablise the case of the accused that she did not execute the cheque and issue the same to the complainant. 10. The learned counsel for the appellant submitted that, if this Court is not convinced with the execution of the cheque by the accused, the matter may be remanded back to the trial court for adducing evidence to prove the execution. It is relevant to note that the accused has already disputed the claim of the complainant that she executed and issued the cheque, but no step was taken during the trial of the case for getting any expert opinion in this regard. According to me the expert opinion requires when there is similarity in the disputed documents or handwriting but now in the present case it is very clear even to the naked eye that absolutely there is no similarity in the endorsements contained in the cheque and the letters in the signature. Besides the above, it is relevant to note that there is consistent pleading as to which address, the cheque in question was sent. It is relevant to note that the complainant has not produced any evidence to show that the cheque in question was sent by the accused after its due execution to the complainant. In the absence of any pleading to that effect, the inconsistency pointed out by the learned counsel for the respondent becomes Crl.A.No.863/2007 12 relevant. In the complaint, the cheque was claimed to have given in the address of the accused at Thevannur but during the evidence PW.1 said that the same was sent to the address of his brother. According to me, in the light of the endorsement contained in Ext.P1 cheque, particularly the details of the account of the complainant, if it is intended to be encashed or credited to the account of the complainant, the same need not be sent to the address of the complainant or his brother's address, but could have sent to the account of the complainant directly. So regarding the execution and issuance of the cheque there is no satisfactory evidence. 11. In the light of the foregone discussion and the materials and evidence referred to above, I am of the view that the complainant has miserably failed to prove plea and prove that Ext.P1 cheque was, after its due execution, issued by the accused towards the discharge the liability of her husband, if any, as undertaken by her. Therefore the findings of the court below and acquitting the accused need not interference. 12. 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 Crl.A.No.863/2007 13 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 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, I am of the view that the appellant has miserably failed to make out any exceptional case or reasons to interfere with the finding of the court below or to show that the judgment of the trial court is perverse. Therefore I am of the view that even if this appeal is entertained, there is not even remote scope to interfere with the order of the acquittal recorded by the trial court. Therefore the appeal fails and accordingly the same is dismissed. ## **V.K.MOHANAN, JUDGE** skj