Indira Murali v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934 CRL.A.No. 796 of 2009 (D) ------------------------ST.130/2008 of J.M.F.C. - II, MAVELIKKARA CRLP.300/2009 DATED 06-04-2009 APPELLANT/PETITIONER/COMPLAINANT: ----------------------------------- INDIRA MURALI, AGED 38 YEARS, W/O.MURALEEDHARAN PILLAI, CHANDRA NIVAS, KALLIMEL P.O., MAVELIKKARA. BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENTS/STATE AND ACCUSED: --------------------------------- 1. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. N.K.PRAKASH, KERALA POLICE, - POLICE QUARTERS, KAYAMKULAM. R1 BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ------------------------------------Crl.A.No.796 of 2009** ## **---------------------------------------Dated this the 12[th] day of December, 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 she is aggrieved by the order dated 18/02/2009 in S.T.No.130 of 2008 of the court of the Judicial Magistrate of the First Class-II, Mavelikara 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 an amount of `3,00,000/- was due from the accused to the complainant as per loan transaction and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 15/12/2006 for `3,00,000/- which, when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused Crl.A.No.796/2009 : 2 : and therefore a notice was served on the accused demanding him to pay the amount covered by the dishonoured cheque, but no payment was made and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, the complainant herself was examined as PW.1 and produced Exts.P1 to P5 documents. No evidence, either oral or documentary, was produced from the side of the defence. The trial court after having considered the entire evidence and materials has found that the sole testimony of PW.1 cannot be accepted to hold that a debt of `3,00,000/- was existing between PW.1 and the accused. The complainant is not entitled to the presumption of the existence of debt or legal liability. It is also found that PW.1 was not able to prove the execution of Ext.P1 cheque. It is on the basis of the above findings that the trial court held that the complainant has miserably failed to prove that Ext.P1 was issued for the discharge of any legally enforceable debt by adducing independent corroborative evidence and Crl.A.No.796/2009 : 3 : accordingly, further found that the accused has not issued Ext.P1 cheque to discharge the legally enforceable debt for `3,00,000/-. Consequently, the trial court found, that the accused is not guilty and he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and the order of acquittal that are challenged in this appeal. 3. I have heard Adv.Sri.M.V.Thamban, learned counsel for the appellant and I have gone through the judgment sought to be impugned. 4. The learned counsel for the appellant vehemently submitted that the accused has admitted the execution particularly the signature in Ext.P1 cheque and therefore the trial court ought to have held that the complainant is entitled to get presumption under Sections 139 and 118(a) of the N.I. Act. But the learned Magistrate went wrong in holding that the complainant has failed to prove the transaction and the execution of the cheque. Thus, according to the learned counsel, the finding of the court below is liable to be interfered and the orders of acquittal recorded in favour of the accused Crl.A.No.796/2009 : 4 : are liable to be reversed and the accused has to be convicted. 5. In the light of the contention advanced by the learned counsel for the appellant and in the light of the finding of the court below, on the basis of the available evidence and materials on record, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of her challenge against the finding of the court below and whether the appellant has succeeded in making out a substantial or compelling reason to interfere with the order of acquittal recorded in favour of the accused. In the complaint, the complainant has no specific case with respect to the date and other details regarding loan, claimed to have been availed by the accused from the complainant. The learned counsel submitted that, during the cross-examination the complainant has stated that the loan was availed on 04/12/2006. In the present case the specific case taken by the accused is that, he had obtained an amount of `84,500/- from the complainant on Crl.A.No.796/2009 : 5 : 20/06/2004 through the intervention of one Vinayachandran. It is the further case of the accused that at the time of availing that amount he had entrusted a blank cheque as security, which is now filled up for the purpose of filing the present complaint. It is also the case of the accused that he had paid a sum of `36,000/- as interest towards the principal amount and he failed to repay the balance amount. It is on the basis of the above claim and counter claim the trial court considered the case in detail. 6. As I indicated earlier in the complaint there is no specific case regarding the date of loan allegedly obtained by the accused. But the learned counsel for the appellant submitted that, the accused has admitted the transaction and the execution and issuance of the cheque and in order to substantiate the said contention, the learned counsel invited my attention to the statement made by the accused under Section 313 of Cr.P.C. It is now well settled that, in order to fix the liability under Section 138 of the N.I. Act, the holder of the cheque or Crl.A.No.796/2009 : 6 : the complainant has to prove the execution and the issuance of the cheque. In the present case, when the complainant claimed that, the accused borrowed a sum of `3,00,000/-, admitted, the case of the accused is that he had obtained only an amount of `84,500/-. So regarding the transaction, there is dispute and to substantiate the case of the complainant there is no independent documentary evidence. It is also well settled that mere admission of the signature in the cheque in question will not amount to admission of execution. It is true, if the complainant has got a case that the accused brought a filled up cheque and issued the same after putting the signature, the same can be accepted in favour of the complainant, provided the said fact is further substantiated by the evidence in accordance with such plea. The complainant has no case in the complaint that the accused brought up a filled up cheque and put the signature in her presence and handed over the same to the complainant. Her case was that, the accused towards the discharge of the liability, executed and issued the Crl.A.No.796/2009 : 7 : cheque in favour of the complainant. When PW.1 was cross-examined, the learned Magistrate has specifically found that, according to PW.1, the accused came with another person to her house and handed over Ext.P1 cheque. The learned Magistrate has further found, that according to PW.1 she was not aware by whom Ext.P1 was filled up. She had also deposed before the court that she was not aware whether it was written by the accused or the person who accompanied the accused. It was on the basis of the above evidence and admission of PW.1, the learned Magistrate found that PW.1 was not able to state regarding the execution of Ext.P1 cheque. The appellant has no case that the learned Magistrate has overlooked any material or evidence to prove the execution of the cheque other than what stated by the learned Magistrate in paragraph 14 of his judgment. The learned counsel for the appellant has also no case that the above finding or observation of the learned Magistrate is incorrect or contrary to the real evidence. If that be so, according to me, the learned Magistrate is Crl.A.No.796/2009 : 8 : fully justified in its finding that the complainant has failed to prove the execution of the cheque. 7. It is also relevant to note that, to prove the transaction, no evidence other than the interested version of PW.1 is adduced. The learned Magistrate has found that in the cross-examination PW.1 admitted that she could produce the document to show that she had withdrawn money for the purpose of giving the same to the accused, but no such document was produced to show the withdrawal of such money, for the scrutiny of the court. It is under the above factual situation and in the light of the evidence, the trial court has found that the complainant has failed to prove the execution of the cheque and the transaction. According to me, the above findings are supported by the evidence and materials on record and therefore it cannot be said that the findings of the court below are perverse or illegal. 8. 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 Crl.A.No.796/2009 : 9 : ## Court has held that, “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, according to me, in the light of the dictum laid down by the Apex Court in the decision cited supra, the appellant has miserably failed to make out a prima facie case in support of her challenge against the finding of the court below and also failed to make out any compelling or substantial reason to interfere with the order of acquittal recorded by the trial court in favour of the accused. Therefore, the appeal fails. In the result, the above appeal is dismissed. ## **V.K.MOHANAN, JUDGE** skj