IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
## THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 24TH DAY OF SEPTEMBER 2012/2ND ASWINA 1934
## CRL.A.No. 1858 of 2004 (E)
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CRLP.675/2004 DATED 03-11-2004
AGAINST THE ORDER/JUDGMENT IN CC.473/2000 of J.M.F.C.,NEDUMKANDOM
## APPELLANT/COMPLAINANT::
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JOSEPH, S/O. JOSEPH,
MOOTHEDATHU VEEDU, PUTTADI KARA, ANAKKARA VILLAGE, UDUMBANCHOLA TALUK.
BY ADV. SRI.PAULY MATHEW MURICKEN
## RESPONDENTS/ACCUSED:
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1. K.C. MATHEW @ MATHAI, PEON,
- SERVICE CO-OPERATIVE BANK, KATTAPANA BRANCH.
2. STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
- BY ADV. SRI.GRASHIOUS KURIAKOSE - FOR R1
PUBLIC PROSECUTOR SMT.S.HYMA- FOR R2
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No.1858 of 2004**
## **---------------------------------------------Dated this the 24[th] day of September, 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 22/12/2003 in C.C.No.473 of 2000 of the court of the Judicial Magistrate of the First Class, Nedumkandom 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, on demand of the accused, on 01/05/2000 the complainant paid an amount of `1,50,000/- to the accused from the house of the complainant and in discharge of that liability the accused issued a cheque for `1,50,000/- putting date thereon as 28/07/2000 and when the said cheque presented for encashment, dishonoured for the reason
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'not arranged for' and accused has not paid the amount in spite of the statutory notice served on him 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 himself was mounted to the box and adduced evidence as PW.1 and also produced Exts.P1 to P6. From the side of the defence besides the accused DW.1 was also examined and produced Exts.D1 to D4. The trial court after considering the entire evidence and materials on record found that Ext.P1 cheque was not issued by the accused in favour of the complainant to discharge of a legally enforceable debt of `1,50,000/- and accordingly the accused is acquitted under Section 255 (1) of Cr.P.C. It is the above finding and order of acquittal are challenged in this appeal.
3. I have heard Sri.Pauly Mathew Muricken, learned counsel for the appellant and Sri.Grashious Kuriakose, learned Senior counsel for the first respondent.
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4. The learned counsel for the appellant vehemently submits that the accused has admitted his signature and execution of Ext.P1 cheque and also the transaction and therefore the trial court is wrong in its finding and acquitting the accused. It is the further submission of the learned counsel that as the transaction is admitted especially the signature and execution of the cheque, the complainant is entitled to get presumption as envisaged under Sections 118(a) and 139 of the N.I. Act. According to the learned counsel, the Magistrate of the trial court without considering the above legal aspect and the factual input came into an erroneous conclusion and accordingly acquitted the accused and therefore the findings and order of acquittal are liable to be set aside.
5. I have carefully considered the above contention of the learned counsel for the appellant and also perused the judgment and the evidence and materials on record.
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6. In the light of the contention advanced by the learned counsel for the appellant and the evidence and materials on record, the question that emerges for consideration is whether the trial court is justified in its finding and acquitting the accused and whether the appellant had succeeded in making out a case so as to interfere with the order of acquittal recorded by the trial court. The crux of the case of the complainant is that the accused borrowed an amount of `1,50,000/- from the complainant on 01/05/2000 from his house and at that time itself the accused issued Ext.P1 cheque dated 28/07/2000. Whereas the case of the defence is that he had availed a loan of `50,000/- from the complainant and at the time of availing the loan as insisted by the complainant he had entrusted two blank signed cheques and also signed a stamp paper in favour of the complainant. According to the defence two other cheques of one K.M.Scaria and Molly Joseph were also entrusted with the complainant. It is the further case of
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the defence that out of `50,000/- so borrowed an amount of `40,000/- was paid by the accused to the complainant. Thereafter an amount of `25,000/- was due to the complainant and accordingly the complainant had presented the cheque entrusted by the said Molly Joseph and encashed the same and thereafter the complainant has also presented the cheque which was entrusted by K.M.Scaria and the said cheque dishonoured and hence the complainant filed a case against K.M.Scaria as C.C.No.144 of 2000. The defence case, supported by the evidence further shows that the accused has received only `50,000/- from the complainant by way of demand draft and the same credited to the account of the accused.
7. The learned Magistrate after considering the entire evidence and materials preferred to accept the case of the defence and came to a conclusion that Ext.P1 cheque was not issued as claimed by the complainant towards the discharge of any legally enforceable debt due
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to the complainant. From the complaint itself it is crystal clear that the complainant is a person who is conducting finance institution. According to the complainant no other security or record has been obtained from the accused. But his claim is that, towards the discharge of the liability the accused issued Ext.P1 cheque on the date of the borrowal of the amount itself. Though it is stated in the complaint and in the evidence of PW.1 that he knows the accused, no reason is forthcoming for not obtaining any records or security or getting Ext.P1 cheque only for an amount of `1,50,000/-, though such a huge amount was given as loan for two months. The complainant has not produced any evidence, other than Ext.P1 and the interested version of the complainant, to prove the transaction and granting of loan of `1,50,000/-. It is in the above factual background the case of the defence becomes relevant and therefore the case of the complainant has to be examined in the light of the evidence and materials of the defence as well. It is
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beyond dispute that the complainant has encashed the cheque entrusted with him which belongs to one Molly Joseph. It is also beyond dispute that the very same complainant has filed C.C.No.144 of 2000 in the very same court against K.M.Scaria. The said Scaria examined in the present case as DW.1 and had also deposed that the circumstances under which he was implicated in the C.C.No.144 of 2000 and also deposed the circumstances under which he issued his cheque connected with loan affairs between the complainant and the accused. There is no serious challenge against the above evidence of DW.1. To prove the case of the defence he had produced Ext.D1 the judgment in C.C.No.144 of 2000 and Exts.D2 to D4. The learned Magistrate has specifically found that, though the accused sent a reply notice to the complainant denying the claim and allegation of the complainant with respect to the alleged borrowal of `1,50,000/-, the complainant has suppressed the said fact. Even though the accused
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conveyed his defence in advance through his reply, no evidence is adduced by the complainant to prove the transaction as claimed by him. It is in the terms of the defence the accused tried to substantiate his defence which found recognized by the learned Magistrate. Exts.D2 to D4 show that the accused borrowed an amount of `50,000/- from the complainant by way of demand draft which was encashed by him on 01/06/1998. The complainant has no case that the accused borrowed such an amount during the year 1998. Therefore the said fact and the evidence positively proves that there was only one transaction between the complainant and the accused and the accused has borrowed only an amount of `50,000/- and no other amount received or obtained from the complainant. In this respect it is relevant to note that either in the complaint or in the evidence of the complainant, he has no case that he had other transaction with the accused. The accused offered an explanation as to how Ext.P1 cheque reached in the hands of the
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complainant which appears to be correct and probable in the light of the evidence adduced by the defence. Therefore, even if the contention of the learned counsel for the appellant is taken for granted, without any hesitation, it can be safely concluded that the accused has succeeded in rebutting the presumption available in favour of the complainant under Section 118(a) and 139 of the N.I. Act. Thus going by the judgment it can be seen that the trial court refused to act upon the evidence and averments of the complainant and opted the case of the defence by assigning appropriate and cogent reasons. Therefore it cannot be said that the finding of the court below is illegal and the judgment challenged in this appeal is a perverse one.
8. In a 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,
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“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 dictum laid down by the Apex Court in the decision cited supra, I find no ground to interfere with the order of acquittal recorded by the trial court. Therefore, the appeal fails. In the result, this appeal is dismissed accordingly.
## **V.K.MOHANAN, JUDGE**
skj
