Jayachandran v. Anandavally and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 CRL.A.No. 1989 of 2005() -----------------------AGAINST THE JUDGEMENT/ORDER IN CRLP.604/2005 CC.90/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I,NEYYATTINKARA .................... APPELLANT(S): -------------- JAYACHANDRAN, S/O.CHANDRASEKHARA PANICKER, KRISHNA BHAVAN, KOOTTAPPANA, THALAYAL DESOM, ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.R.GOPAN RESPONDENT(S): --------------- 1. ANANDAVALLY, W/O.RAMACHANDRAN, ANANDA BHAVAN, KALLAMBALAM, THALAYAL DESOM, ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAIBY PAUL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON 22/07/2011 DELIVERED THE FOLLOWING: CRL.A.No. 1989 of 2005() 2 ## PETITIONERS EXHIBITS: ANNUXURE-A : TRUE COPY OF THE ORDER IN C.C.NO.90/2005 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I (PRINCIPAL MUNSIFF), NEYYATTINKARA ## RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE. ## **V.K.MOHANAN,J** **------------------------------** ## **Crl. Appeal No.1989 of 2005** **--------------------------------------------** Dated this the 22[nd] day of July, 2011 ## **JUDGMENT** The complainant in a prosecution for the offence u/s.138 of NI Act is the complainant, as he is aggrieved by the judgment dated 25.6.2005 in C.C.90/2005 of the Judicial First Class Magistrate Court (Principal Munsiff), Neyyattinkara by which the learned Magistrate acquitted the accused u/s.255(1) of Cr.P.C. 2. The case of the complainant is that towards the discharge of the liability of Rs.1,30,000/- due to the complainant, the accused issued Ext.P1 cheque dated 19.4.2001 which when presented for encashment, dishonoured as there was no sufficient funds to encash the same and the accused failed to pay the amount even though statutory notice was issued and accepted by him. Therefore, the accused has committed the offence u/s. 138 of the NI Act. With the above allegation, initially he preferred a complaint in the court of JFCM-I, Neyyattinkara, whereupon cognizance was taken for the offence u/s. 138 of NI Act and instituted CC.No.314/2001. Subsequently, the case was transferred to the present trial court wherein CC Crl. Appeal No.1989 of 2005 2 No.90/2005 was instituted. During the trial, the complainant himself was examined as PW1 and one Kumar is examined as PW2. Ext.P1 to P6 documents were also produced from the side of the complainant. From the side of the defence Dws. 1 to 2 were examined, but no document was marked. While concluding the trial, the learned Magistrate has found that the cheque in question originally was for an amount of Rs.30,000/- but the same was converted into 1,30,000/- and consequently, held that Ext.P1 cheque was not issued by PW1 for the payment of such amount. Accordingly, accused is found not guilty and she is acquitted u/s. 255(1) of Cr.P.C. 3. This Court, by order dated 19.10.2005 in Crl.L.P.No.604/2005 granted leave to file an appeal and the present appeal comes up for hearing today. 4. I have heard Sri.K.R.Gopan, learned counsel appearing for the appellant. I have also perused the judgment of the trial court and gone through the deposition of the witnesses and the other materials available on record. 5. Mr.K.R.Gopan, learned counsel appearing for the appellant vehemently submitted that, the accused has no dispute Crl. Appeal No.1989 of 2005 3 regarding the signature on Ext.P1 and therefore, the execution is proved and still then the learned Magistrate went to the extent holding that the cheque was not executed and issued by the accused towards the discharge of the liability due to the complainant. It is also the submission of the learned counsel that the accused miserably failed to issue any reply in spite of the fact she had received the statutory notice caused to sent by the complainant and her defence taken only during the trial which cannot be accepted as such. It is also the submission of the learned counsel that even during the trial the accused has no consistent defence. The learned counsel pointed out that during the trial though the accused initially took a contention to the effect that the cheque in question was entrusted with one Dharmesh, subsequently, she states that the same was entrusted with Kumar. So the above inconsistency of the defence itself is sufficient to approve the correctness of the prosecution case. Another submission made by the learned counsel is that the finding of the learned Magistrate that the amount written in figure is corrected by the complainant is not substantiated. The learned counsel further points out that even though Magistrate Crl. Appeal No.1989 of 2005 4 has not arrived into the definite conclusion that it was done by the complainant, the learned Magistrate simply accepted the version of the defence that too unsupported by evidence. Therefore, the findings and order of acquittal, according to the learned counsel is liable to be interfered and to reverse the same and the accused/respondent is liable to be punished u/s. 138 of the NI Act. In support of the above contentions, the learned counsel place reliance upon the decision of the Supreme Court reported ( **AIR 2001 SC 2895) K.N.Beena v. Muniyappan and Another** and ( **2010 (2) KLT 682 (SC)) Rangappa v. Mohan.** 6. The defence taken by the accused who is a lady that she has no connection with the complainant and no transaction with him and her cheque, which was issued to one Dharmesh by her son is manipulated and launched the complaint misusing such cheque. The specific contention taken is that the amount written in Ext.P1 was actually for Rs.30,000/- but that was corrected as 1,30,000/- by putting the figure “1” to the amount written in the cheque. During the 313 questioning the accused filed a statement in which it is stated that one Kumar introduced Crl. Appeal No.1989 of 2005 5 Dharmesh to her son and two cheques were given to Dharmesh, but the cheque for Rs.30,000/- was not returned but instead of that the said cheque was mis-used. According to her, the present complaint was filed by the complainant as a name lender of one Kumar. It is also stated in the 313 statement that a criminal case was registered against said Kumar, Dharmesh and the complainant herein in the Balaramapuram Police Station and on referring the above crime, a protest complaint was filed by the accused. Though no documentary evidence is adduced by the defence. From the side of the accused DW1 and 2 were examined as I indicated earlier. 7. When PW1 was examined, he had deposed in terms of the complaint and no details is given under what circumstances Ext.P1 cheque was given. The only evidence is to the effect that ; “പ�ത� എന�ക� തര�ന�ള ഒര� ലകത� മ�പത�ന�യ�ര� ര��യ�ക� പ�ത�യ�ട� അക�ണ�ള ഇന��ന ബ�ങ� ബ�ലര�മ��ര� ” ശ�ഖയ�ല മ�റ�വ�ന19-4-2001 ത.യത� ടവച� ട0ക� തന�. During cross examination what he had stated is that the second son of the accused namely Prasad conducting a Cassette Shop Crl. Appeal No.1989 of 2005 6 near to the house of the accused and he, the complainant used to go in that shop and thus he got acquaintance with the accused. According to him he used to visit the house of the accused along with the son of the accused. He had also admitted that house of the accused is at Kallampalam. During the cross examination he had stated that the amount was borrowed for domestic purpose. But he had deposed that he has no business of giving money on interest. Though PW1 has claimed that he used to go to the house of the accused it is stated that the amount was given from his house. He has also claimed that when the amount was given one Kumar, PW2 and one Vinod were also in the house of the complainant. To a pointed question, he denied that he does not know a person one Dharmendra Shaw, who conducting electronic shop at Thakaraparambu in Trivandrum. He had admitted that, son of the accused conducting an institution in the name and style 'Kings Cable Vision'. He denied the suggestion that he has any connection with the son of the accused, who conducting such institution. He had also stated that he is not aware of the transaction between the son of the accused and the above mentioned Dharmendra Shaw. He has also stated that Crl. Appeal No.1989 of 2005 7 before taking job in the KSRTC, he has no connection with the cable T.V. business. He had also admitted that he had acquaintance with one Kumar, who conducting cable vision at Balaramapuram in the name and style 'Shakti Cable Vision'. But he denied transaction with him. When PW1 was questioned, said; “ ട0ക�ടല ത�ക അകത�ടലഴ�ത�യ�ല 1 എന അകത�ന� വ�ത��സ� ക�ണ�നല7� (Q) He answered എട: അറ�വ�ല ഇ7. (A).” He had denied that he is an accused in Crime No.185/2004 of Balaramapuram Police Station. But he has admitted that he was questioned by the Police connected with the cheque case. During the further cross examination he states; “ ക�മ�റ�� ധരല=പ>യ�� സ�പ?�ത�കള�ലണ� എടനന�കറ�യ�7. പ�ത�യ�ട� മക ട: സ��ന� ഏഷ��ടന�� ലകബ�ള വ�ഷന �മ�യ� ല�ങ � ട0യ�തത�ടF വ�ലര�ധ� ന�മ�ത�ധരല=പ> ഷ�യ�ല�യ�� ക�മ�റ�ലFയ�� ലപ�രണയ�ല കളവ�യ� ഒര� ലകസ� ടകട� 0മചതട7 (Q) ശര�യ7(A). പ�ത� ക�മ�റ�ന� നലക�യ ട0ക� ഇ����� ത.രന ലശഷ� മ�ക� നലക�യ�7 എന�� ആ ട0ക� ഉ�ലയ�ഗ�ച� കളവ�യ� ലകസ� ## Crl. Appeal No.1989 of 2005 8 ടക���തത�മ�ടണന� �റയ�ന� (Q) ശര�യ7 (A).” 8. Another witness examined for the complainant is PW2 and in his Chief Examination itself he had just stated that; “ ഞ�ന പ�ത�ക� ത�ക ടക���ക��ല��ള സന�?�തന�യ�ര�ന�.” But he did not depose anything regarding the transaction including the amount which given by the complainant to the accused. Though he claimed that he had witnessed the payment, he did not say about the amount, allegedly given to the accused. During the cross examination he has stated that he is not aware of giving cheque to the complainant by the accused. PW2 had admitted that he is the neighbor of the complainant and they are friends. During cross examination he stated; “ ഇ����� ന�ക�മ�ല��ള വ�ദ�യ� ട� വ.ട�ല ആടര�ടക ഉണ�യ�ര�ന�ടവന� എന�കറ�യ�7 . ന�ങള വ�ദ�യ�ട� വ.ട�ല തലസമയ� ഇ7�തത�ന�ലട7 അക�ര�� �റയ�ന കഴ�യ�തത� (Q) ശര�യ7(A) ” “ The next answer was that; വ�ദ�യ�ട� കയ�ല ഒര � ലകത� മ�പത�ന�യ�ര� ര�� എങടന വര�� എടനന�കറ�യ�7. ''- No other evidence is adduced by the complainant. 9. The learned Magistrate after considering the above Crl. Appeal No.1989 of 2005 9 evidence of the complainant and after considering the version given by the defence found that the cheque was originally issued for Rs.30,000/- but it was converted to Rs.1,30,000/- and according to the learned Magistrate thus Ext.P1 cheque was not issued by the accused to PW1 for making payment of such amount. In the light of the above facts and circumstances and evidence and in view of the contentions raised by the learned counsel the question to be considered is whether the complainant has succeeded in establishing that, Ext.P1 cheque was executed and issued by the accused towards the discharge of any legally enforcible debt due to the complainant and whether the findings of the learned Magistrate against the complainant and in favour of the complainant requires any interference. 10. A learned judge of this court in the decision **Santhi v. Mery Sherly reported in (2011 (3) KLT 273)** has held that the absence of word “execution” in Section 138 is of no consequence and not an excuse for the complainant not to prove execution/drawing, in a prosecution for the offence u/s. 138. It is also held that mere production of a cheque or marking the same Crl. Appeal No.1989 of 2005 10 as an exhibit will not prove that the cheque is drawn by the accused. It is further held that mere fact that the cheque produced in court came from possession of complainant alone will not sufficient to prove the execution. The above conclusion was arrived based upon several decisions of the Apex court and after having referred to various legal provisions. In the present case also the submission of the learned counsel is that the accused has not denied the signature and execution of the cheque and therefore, the learned Magistrate of the trial court is in correct in acquitting the accused. I am unable to endorse the above contention particularly in the light of the facts and circumstances involved in this case. As I indicated earlier, the specific defence taken by the accused is to the effect that the accused who is a lady has no acquaintance with the complainant and the cheque in question is one among two cheques entrusted with certain other persons mentioned earlier and those cheques entrusted with them after writing the figure and Ext.P1 cheque is the one entrusted with the said persons wherein the amount is specifically written as 30,000/-. According to the accused, it is the said cheque after prefixing the figure '1' in the written Crl. Appeal No.1989 of 2005 11 figure misused by the complainant to launch the present compliant on behalf of the person with whom the cheque was originally entrusted. It is true, beside the examination of Dws 1 and 2 the accused has not adduced any evidence to prove to substantiate her version. But it is brought on record that the accused had already approached the Police against the misuse of Ext.P1 cheque consequently, Balaramapuram Police had already registered a crime. The accused has also given an account particularly during the 313 statement as to how Ext.P1 cheque reached the possession of the complainant. In the light of the above defence the question to be considered is whether the complainant has succeeded in establishing the case including the execution and issuance of the cheque and the liability, as claimed by him. In the light of the evidence of PW1 which I indicated earlier there is no details regarding the transaction. It is under the above circumstances the above cited decision of this court become relevant and merely for the fact that the complainant has produced the cheque in the court from his possession is not sufficient to hold that the said cheque was executed or drawn by the accused and issued in favour of the Crl. Appeal No.1989 of 2005 12 complainant. The learned Magistrate who got the opportunity to assess the demeanor of the witnesses and accused and after evaluating the evidence came into the conclusion that it cannot be said that Ext.P1 cheque was executed and issued by the accused in favour of the complainant. Though the complainant has examined PW2 to prove the transaction, his evidence is not helpful for the compliant to advance his case because he is not aware of the entire transaction, he did not depose anything about the amount which allegedly given to the accused by the complainant and he is also not aware regarding the issuance of the cheque by the accused to the complainant, though he is an interested witness. Thus, according to me, the accused has succeeded in making out a probable case, out of the evidence and materials of the complainant. 11. The learned counsel for the complainant heavily relied upon the decision of the Apex court reported in ( **2010(2) KLT 682(SC)) Rangappa v Mohan** and submitted that in the light of the facts and circumstances involved in the present case, especially when the accused does not dispute the signature that contained in Ext.P1, the appellant/complainant is entitled to get Crl. Appeal No.1989 of 2005 13 the presumption as contemplated by Section 139 of the NI Act. It is relevant to note that the facts and circumstances involved in the above reported cases is entirely different from the present one. In that case the accused has already issued the 'stop memo' and during the cross examination of the complainant in that case, the suggestion was that the complainant had the custody of the cheque right from 1998. On the basis of the said fact the Hon'ble Apex court has held the said suggestion indicates that accused was aware of the fact that the complainant was in possession of cheque, thereby weakening his claim having loss a blank cheque. In the present case, defence taken by the accused is in a different footing and the available materials according to me, probablise the defence version. 12. In the absence of any cogent and convincing evidence on the basis of which court of law can safely concluded that the accused has issued a cheque after its due execution to discharge the liability, it cannot be said offence u/s.138 is attracted. Though I have repeatedly gone through the judgment of the trial court as well as the evidence, I find no compelling reason and justification to interfere with the order of acquittal and to Crl. Appeal No.1989 of 2005 14 reverse the same into a conviction. Hence, I find no any illegality with the findings of the learned Magistrate and the order of acquittal recorded by the trial court and accordingly the same are confirmed. In the result, there is no merit in the appeal and accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE.** pm/