K. Binni v. K. Udayan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934 CRL.A.No. 967 of 2009 ( ) ------------------------[AGAINST THE JUDGMENT DTD.1.12.2008 IN C.C.538/2007 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOZHIKODE] APPELLANT(S)/PETITIONER/COMPLAINANT: ----------------------------------- K.BINNI,S/O.GOVINDAN NAIR, RESIDING AT 6/120,K.S.H.B.COLONY NEAR HOUSING BOARD FLATS, CHEVARAMBALAM,KOZHIKODE. BY ADVS.SRI.V.V.SURENDRAN SRI.P.M.PADMANABHAN SRI.P.A.HARISH SMT.SANIKA.V.S. RESPONDENTS(S)/ACCUSED/STATE: ---------------------------- 1. K.UDAYAN,PROPRIETOR, SURYA GAS,CHAKKORATHUKULAM, CALICUT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.JACOB ABRAHAM BY ADV. SMT.KOCHUMOL KODUVATH R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21-03- 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 967 of 2009** ## **----------------------------------------** Dated this the 21[st] day of March, 2012 ## **J U D G M E N T** 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 of acquittal recorded by the trial court under Section 255(1) of the Code of Criminal Procedure. 2. The case of the complainant is that the accused approached the complainant during the month of January 2007 and borrowed a sum of ` 2,50,000/- and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 8.6.2007 which when presented for encashment, dishonoured stating the reason that 'exceeds arrangement' and the accused has not paid back 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 Crl.A.No.967 of 2009 :-2-: mounted to the box and got examined as PW1 and he produced Exts.P1 to P4. No evidence either documentary or oral was adduced from the side of the defence. The trial court, after considering the entire facts and circumstances and the evidence, came to a conclusion that the complainant has failed to prove that the cheque is duly executed by the accused for the discharge of legally enforceable debt and accordingly, the accused is acquitted of the offence under Section 138 of the N.I.Act. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri.V.V.Surendran, learned counsel for the appellant and Sri.Jacob Abraham, learned counsel for the first respondent. I have perused the judgment of the trial court. 4. From the judgment of the trial court, it appears that the learned Magistrate has rejected the plea of the complainant mainly based upon the admission of PW1 during the cross-examination. In paragraph 15 of the judgment, the trial court has found that PW1, Crl.A.No.967 of 2009 :-3-: during the cross-examination, has categorically admitted that except the signature in the cheque, all other entries in the cheque are made by himself. The learned Magistrate has further found that the signature of the accused is seen put with blue ink and all other entries in the cheque are admittedly written by PW1 using black ink. Therefore, the learned Magistrate is of the opinion that when the entire entries in the cheque including the name of the payee and the amount are written by the complainant, it cannot be said that the cheque is duly executed by the accused. 5. Learned counsel for the appellant vehemently submitted that the cheque in question was issued by the accused and the complainant has established the transaction and therefore, the learned Magistrate is not correct in disbelieving the case of the complainant and acquitting the accused on the basis of the admission of PW1 during the cross-examination with respect to the entries that contained in Ext.P1 cheque. It is also pointed out by the learned counsel that the Crl.A.No.967 of 2009 :-4-: accused has no consistent case as to how Ext.P1 cheque reached in the hands of the complainant and to substantiate the above point, it is pointed out that during the cross-examination of PW1, the suggestion was to the effect that the cheque was given to one Suresh Babu, but during the 313 statement, the accused has stated that the cheque was given to one Satheesan from whom he obtained a sum of ` 25,000/-. Thus, according to the learned counsel, since the accused has no consistent case, the learned Magistrate is not correct in acquitting the accused based upon the above admission of the complainant which I indicated earlier. On the other hand, learned counsel for the respondent submitted that the complainant has no case that the accused authorised him to make endorsement or entries in Ext.P1 cheque and therefore, all entries made by the complainant in Ext.P1 are unauthorised and the same cannot be acted upon and therefore, the finding of the trial court is correct. 6. I have carefully considered the arguments of the learned Crl.A.No.967 of 2009 :-5-: counsel for the appellant and the respondents. 7. As rightly observed by the learned Magistrate, in the light v. of the decision of this Court reported in **Gopan Tonny Varghese** [2008(1) KLT 257], the mere fact that the signature of the accused is seen in Ext.P1 cheque, is not sufficient to hold that the accused has executed the cheque as contemplated by Section 138 of the N.I.Act. It is also relevant to note that while disbelieving the case of the complainant and in support of the finding, the learned Magistrate has considered the decisions of the Honourable Apex Court reported in **Narayana Menon** v. **State of Kerala** [2006(3) KLT 404 (SC)] and **Krishna Janardhan Bhat** v. **Dattatraya Hegde** [2008(1) KLT 425 (SC)]. In the present case, it can be seen that the accused has disputed the transaction claimed by the complainant and also denied the execution and issuance of the cheque in favour of the complainant. In the background of the above defence, according to me, it is incumbent upon the complainant to prove beyond reasonable doubt the entire Crl.A.No.967 of 2009 :-6-: transaction and particularly, the execution and issuance of Ext.P1 cheque by the accused in favour of the complainant. In the present case, the learned Magistrate has considered several aspects, which I do not propose to consider again, to disbelieve the case of the complainant regarding the transaction. But, the admitted case of the complainant is that the entries in Ext.P1 cheque, except the signature, were made by himself. If that be so, it cannot be held that Ext.P1 cheque was executed by the accused especially, when as rightly pointed out by the counsel for the respondents, that the complainant has no case that he was authorised by the accused to make those entries. It is also relevant to note that even though there are divergent versions for the accused that the cheque was given to different persons, the fact remained is that the signature that contained in Ext.P1 is seen to have put with blue ink, but all other entries in the cheque are used by using black ink. No explanation is forthcoming from the complainant for such discrepancies. Therefore, the said fact Crl.A.No.967 of 2009 :-7-: is also consistent with the probable case of the defence. As the complainant miserably failed to prove the execution of the cheque, according to me, the learned Magistrate is correct in not extending the benefit under Section 139 of the N.I.Act in favour of the complainant. In the light of the above facts and circumstances and the discussions, I am of the view that the appellant/complainant has miserably failed to make out a prima facie case so as to entertain this appeal any further. Therefore, this appeal is devoid of any merit and accordingly, the same is dismissed. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.967 of 2009 :-8-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 Crl.A.No.967 of 2009 :-9-: ## **JUDGMENT** Dated:11.11.2011