Ibrahimkutty v. Anish and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 CRL.A.No. 1681 of 2003 ------------------------------(AGAINST THE JUDGMENT IN ST.625/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR) .................... APPELLANT(S): --------------------IBRAHIMKUTTY, KARIPPAKULATH HOUSE, KARUPADANA. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENTS(S)/ACCUSED:: ------------------------1. ANISH, S/O.RAGHAVAN, KALATHIL HOUSE, KODUNGALLUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI.K.S.SHIVKUMAR. R1 BY ADV.SRI.BABU KARUKAPADATH SRI.K.A.NOUSHAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1681 of 2003** **----------------------------------------** Dated this the 26[th] day of September, 2011 ## **J U D G M E N T** The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant herein, who has filed this appeal challenging the order of the trial court 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 issued cheque dated 14.9.2000 for an amount of Rs.36,550/- to discharge the liability due to the complainant and when the cheque was presented for encashment, the same was returned for want of sufficient fund and in spite of statutory notice, the accused did not pay the amount and therefore, Section 138 of the N.I.Act is attracted against the accused. With the above allegation, by filing a complaint, the complainant approached the Judicial First Class Magistrate Court, Kodungallur wherein cognizance was taken for the offence under Section 138 of CRL.A.NO.1681 of 2003 :-2-: the N.I.Act and instituted S.T.No.625 of 2001. During the trial, the complainant himself was examined as PW1 and Exts.P1 to P6 were produced. From the side of the defence, DWs.1 to 4 were examined though no documents were produced. The trial court, after considering the entire materials and evidence on record, has categorically found that the complainant is not entitled to get the presumption under Section 138 of the N.I.Act because the accused has rebutted the same and consequently, the accused is acquitted. It is the above findings and order of acquittal challenged in this appeal. 3. I have heard Sri.Dinesh Mathew.J.Murikan, learned counsel for the appellant as well as Sri.Babu Karukapadath, learned counsel appearing for the respondent. 4. Counsel for the appellant vehemently submitted that the evidence of PW1 would substantiate the case of the complainant especially, when the signature contained in Ext.P1 cheque is admitted by the accused. It is also the submission of the learned counsel that CRL.A.NO.1681 of 2003 **==> picture [21 x 9] intentionally omitted <==** though a statutory notice was sent to the first respondent/accused, the same was returned as unclaimed and therefore, the accused has admitted his liability, but the trial court on a wrong notion came into a conclusion that the accused has rebutted the presumption. In the light v. of the decision of this Court reported in **Kochayippa Suprasidhan** [2002(2) KLT 652], the learned counsel for the appellant submitted that the finding of the court below is liable to be set aside and the appeal is to be allowed. 5. On the other hand, counsel for the respondents submitted that by adducing evidence from the side of the defence, as correctly observed by the learned Magistrate, the accused has rebutted the presumption and therefore, the finding of the trial court is absolutely correct and Ext.P1 cheque is not supported by any consideration and not issued in discharge of any legally enforceable debt due to the complainant. It is also the submission of the learned counsel that the decision relied of by counsel for the appellant is no longer a good law CRL.A.NO.1681 of 2003 :-4-: because in view of the subsequent decision of this Court in **Joseph Sartho** v. **Gopinathan Nair** [2008(4) KLT 509]. In the light of the above rival pleadings and in view of the finding of the trial court and the materials on record, the question to be considered is whether the trial court is justified in its finding and acquitting the accused under Section 255(1) of the Cr.P.C. and whether the appellant has made out a case so as to interfere with such finding and order of acquittal. 6. Going by the evidence of PW1, the case of the complainant is that the accused purchased gold ornaments for an amount of Rs.75,000/- and towards the discharge of the said liability, the accused paid Rs.40,000/- in cash and towards the balance amount of Rs.36,550/-, the accused issued cheque, which when presented for encashment, was dishonoured. The specific case taken by the accused is to the effect that he had purchased gold ornaments for an amount of Rs.10,300/- and Rs.5000/- was paid to the complainant and for the remaining amount of Rs.5300/-, a blank cheque was given to the CRL.A.NO.1681 of 2003 :-5-: complainant which is misused showing the liability as Rs.36,500/-. I am not proposed to go into the details of the evidence and materials on record, in view of the particular facts and circumstances involved in the case, especially in the light of the defence advanced by the accused admitting part of the transaction. When the complainant says that the accused borrowed gold ornaments for an amount of Rs.75,000/-, the accused admitted that there was a transaction with the complainant by which he purchased gold ornaments for Rs.10,300/only. According to the accused, towards the payment of the balance amount of Rs.5300/-, he issued a blank cheque, but the same was misused by the complainant showing a higher amount contrary to the actual and real balance amount. Going by the evidence of PW1, it can be seen that he has not produced any documentary evidence, other than Exts.P1 to P6, which is Ext.P1 cheque and the documents connected with the dishonour of cheque and sending of statutory notice, to substantiate the transaction which he claimed. He had CRL.A.NO.1681 of 2003 :-6-: admitted during examination that he was in possession of the accounts connected with the gold sales to the accused and agreed to produce the same. But, he did not produce the accounts voluntarily from his side in spite of the fact that there is no other evidence to prove the transaction. It is also relevant to take note that the accused has filed a petition with a prayer directing the complainant to produce the accounts connected with the gold transaction, but in spite of his claim that he was in possession of such accounts, the complainant did not produce the same, but he filed a counter affidavit stating that the accounts were decayed or lost, when the shop rooms were renovated. As rightly observed by the learned Magistrate in paragraph 12 of the judgment, it can be seen that the complainant, who could have produced the best evidence in support of his claim, failed to produce the same and consequently, the learned magistrate had correctly drawn a presumption under Section 114 of the Evidence Act against the complainant and in favour of the accused and consequently found that CRL.A.NO.1681 of 2003 :-7-: the accused has rightly established his probable case and thereby, rebutted the presumption which is otherwise available in favour of the complainant. 7. Having regard to the facts and circumstances involved in the case and especially in the light of the above discussion and evidence and materials referred to above, I am of the opinion that the learned Magistrate is fully justified in his finding and acquitting the accused under Section 255(1) of the Cr.P.C. Therefore, I find no reason to interfere with the order of acquittal recorded by the learned Magistrate and consequently, the appeal is devoid of any merit and is dismissed. This Criminal Appeal is dismissed accordingly. ## **V.K.MOHANAN, Judge** MBS/ CRL.A.NO.1681 of 2003 :-8-: **V.K.MOHANAN, J** . CRL.A.NO.1681 of 2003 :-9-: CRL.A.No. OF 20 **JUDGMENT** Dated:2. ..2011 ## CRL.A.NO.1681 of 2003 :-10-: