Harrison's Malayalam Limited v. Rajeswari Proprietrix and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30TH DAY OF JUNE 2020 / 9TH ASHADHA, 1942** ## **CRL.A.No.1877 OF 2005** **AGAINST THE JUDGMENT IN CC 204/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,ERNAKULAM** **CRL.L.P.NO.568/2005 DATED 26-09-2005 OF HIGH COURT OF KERALA** ## **APPELLANT/COMPLAINANT:** **M/S.HARRISON'S MALAYALAM LIMITED REGISTERED OFFICE, BRISTOW ROAD, WILLINGTON ISLAND, KOCHI-682 003, REPRESENTED BY ITS ACCOUNT ASSISTANT SAREESH.K.J.** ## **BY ADV. SRI.K.R.SUNIL** ## **RESPONDENTS/ACCUSED & STATE:** **1 RAJESWARI PROPRIETRIX, M/S.KSKB AGENCIES, 18/834, LAKSHMI NILAYAM COLONY, RAMAN MENON ROAD, TALI, CHALAPPURAM, CALICUT. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.R.BINDU SASTHAMANGALAM** **SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.1877/2005 ## **JUDGMENT** ## **Dated this the 30th day of June 2020** The above appeal is filed by M/s.Harrisons Malayalam Ltd. challenging the acquittal order passed by the Judicial First Class Magistrate Court-I, Ernakulam, in C.C.No.204 of 2001. The appellant is the complainant in the above case, and the appellant was prosecuting the first respondent under Section 138 of the Negotiable Instruments Act. 2. In brief, the complainant's case is as follows: The complainant is a registered Company engaged in the business of selling tea packets to various customers. The complainant is represented by its authorised officer as empowered by the Director Board. The accused is a customer of the complainant and is doing business in the name and style as 'M/s.KSEB Agencies'. There was business dealing between the complainant and the accused. In the transaction, the liability of the accused was accumulated to the tune of Rs.1,34,788/-. In discharge of the liability, the accused issued a cheque bearing No.710557 dated 20.9.2000 for Rs.1,34,788/- drawn 3 Crl.A.No.1877/2005 on Nedungadi Bank, Kallai Branch. When the cheque was presented by the complainant through their Bank, it was dishonoured with a memo 'funds insufficient'. This was communicated to the complainant through a memo dated 29.9.2000. The accused issued a demand notice demanding the amount. According to the complainant, even after receipt of the notice, the accused refused to repay the amount. Hence the complaint was filed. 3. To substantiate the case, the complainant examined two witnesses as PW1 and PW2. Exts.P1 to P8 are the exhibits marked on the side of the complainant. Two witnesses were examined on the side of the defence as DW1 and DW2. Exts.D1 to D12 are the exhibits marked on the side of the defence. 4. After going through the evidence and the documents, the trial court found that the accused has not committed the offence under Section 138 of the Negotiable Instruments Act, and he was acquitted under Section 255(1) of the Criminal Procedure Code. Aggrieved by the acquittal order, this Crl.Appeal is filed. 5. Heard Advocate K.R.Sunil for the appellant, Advocate R.Bindu Sasthamangalam for the first respondent, and the learned 4 Crl.A.No.1877/2005 ## Public Prosecutor for the second respondent. 6. The learned counsel for the appellant submitted that the judgment of the trial court is perverse, and the trial court has not considered any of the contentions of the appellant. The learned counsel submitted that there is a presumption in favour of the complainant, and the accused failed to rebut the same. He also submitted that in the light of the judgment of the Apex Court in _**Bir Singh v. Mukesh Kumar [2019 (1) KHC 774]**_ , the findings of the trial court would not sustain. 7. The learned counsel for the first respondent, Advocate R.Bindu Sasthamangalam supported the judgment of the trial court. He submitted that it is a well considered judgment and there is nothing to interfere with the findings of the trial court in an appeal against acquittal. 8. The point for consideration in this appeal is whether the accused committed the offence under Section 138 of the Negotiable Instruments Act. 9. Ext.P2 is the cheque involved in this case. The accused disputed the execution of the cheque and her legal obligation based on the same. The case of the accused is that she had in the habit of 5 Crl.A.No.1877/2005 issuing blank signed cheque to the complainant as a security for their transaction and it was acknowledged by the authorised agent of the Company. The entire transaction of the accused was settled as full and final in the year 1997. The case of the accused is that the complainant managed to proceed against the accused, demanding an exorbitant amount on the basis of a blank cheque entrusted with the complainant during their transaction. 10. The complainant adduced evidence through PW1 and PW2 to prove the execution of the cheque. The husband of the complainant was examined as DW1 and the representative of the complainant was examined as DW2. The contention of the accused is that she delivered Ext.P2 cheque with the representative of the complainant as a security, and it remained blank though it bears her signature. Therefore, only the writings in the cheque are disputed by the accused. 11. PW1 joined in the complainant Company only in 2000. The entire transaction, in this case, took place in 1997. He could not give any direct evidence to prove the transactions in this case. The entire facts were deposed by the witness based on information gathered from the records. Therefore, the oral testimony of PW1 6 Crl.A.No.1877/2005 would not be sufficient to prove the fact of execution, as stated by the trial court. 12. PW2 was the then Manager in charge of sales of the complainant. He stated that DW2 was representative of the complainant. He corrected the cheque and sent the same to the complainant Company. The alleged cheque was handed over to him through an intermediary, DW2. He specifically stated that he never authorised DW2 to make a full and final settlement in respect of the impugned transaction. There is nothing in his testimony to show that the accused handed over a fully filled up cheque to the complainant. The available evidence of the complainant could not establish the execution of Ext.P1 cheque. The fact of execution should be established by the complainant. This cannot be presumed on the basis of any presumption. After going through the evidence adduced by the prosecution and the defence, the trial court observed like this: _“20. Execution is a pre-requisit to draw the presumption in favour of payee. This fact would be proved with cogent and corroborative evidence by the complainant. Creating a reasonable suspicion would make the fact not proved. There is no necessity to disprove the fact relating to execution. The available evidence would create a suspicion in the mind of common man that the execution is doubtful. When the court step down like an_ 7 Crl.A.No.1877/2005 _ordinary prudent man envisaged in Sec.3 of Indian Evidence Act there is no hesitation to see that the fact of execution stands not proved. Therefore, the benefit should be given to the accused. This ought to have been proved by the complainant beyond any shadow of doubt. Unfortunately the complainant could not examine any seen witness involved in the transaction. Testimony of PW2 or PW1 could not establish the fact of execution. Therefore, the fact of execution still remain not proved._ _21. Failing to establish the fact of execution in respect of Ext.P2 cheque, no liability would attribute against the accused. Therefore, she is not liable to pay the amount in Ext.P2 towards the complainant. Hence, Ext.P2 remains an invalid document, because the complainant could not establish the execution. Invalid document would not impose any liability upon the drawer. Therefore, the drawer is not liable to pay any amount towards the complainant. Hence, point No.1 is found in favour of the accused.”_ 13. After going through the above findings, I see no reason to interfere with the acquittal order passed by the trial court. Even though the counsel for the appellant has taken me through the entire evidence and the documents, in this case, I think, the findings of the trial court to the effect that the execution of the cheque is not proved is correct. There is nothing to interfere with the findings of the trial court. 14. The judgment relied on by the learned counsel for the appellant in _Bir Singh_ 's case is not applicable to the facts and circumstances of the case. Therefore, I think, there is no merit in this appeal. 8 Crl.A.No.1877/2005 Hence this Criminal Appeal is dismissed, confirming the judgment dated 16.8.2005 in C.C.No.204 of 2001 on the file of the Judicial First Class Magistrate Court-I, Ernakulam. Sd/- **P.V.KUNHIKRISHNAN JUDGE** csl & ab