K. Sivadas v. Hari Kumar and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934 CRL.A.No. 20 of 2009 -------------------[AGAINST THE JUDGMENT DATED 4.11.2008 IN CC.638/2007 of J.M.F.C.-VII, TRIVANDRUM] APPELLANT(S)/PETITIONER/COMPLAINANT: ----------------------------------- K.SIVADAS, DAKSHAYANI NIVAS, VENPALAVATTOM, ANAYARA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.GOPAN RESPONDENTS(S)/ACCUSED AND STATE: --------------------------------- 1. HARI KUMAR, HARI NIVAS, TC 11/310, NANTHANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02-04- 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 20 of 2009** **----------------------------------------** Dated this the 2[nd] day of April, 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 borrowed Rs.1 lakh from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 8.1.2007 for Rs.1 lakh and the said cheque when presented for encashment, dishonoured due to the funds insufficient in the account maintained by the accused and the accused has not paid the amount in spite of statutory notice issued. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P5. After considering the entire evidence and materials, the learned Magistrate CRL.A.NO.20 of 2009 :-2-: of the trial court has found that the prosecution has failed to prove the execution of Ext.P1 cheque and the case at hand is not a fit case to draw the presumption under Section 139 of the N.I.Act and there is no clinching positive evidence to prove the case of the complainant. It was also found that the accused is having a reasonably probable case to outweigh the prosecution case and thus, it was concluded that it cannot be said that the accused issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt. Based upon the above finding, the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri.R.Gopan, learned counsel appearing for the appellant. I have perused the judgment of the trial court also. 4. Learned counsel for the appellant vehemently submitted that the complainant has succeeded in establishing the transaction and issuance of the cheque and the learned Magistrate overlooked the above facts and came to a wrong conclusion and held that the CRL.A.NO.20 of 2009 :-3-: complainant has miserably failed to prove the execution and issuance of the cheque. In support of the above submission, learned counsel placed reliance upon the decisions reported in **Devan** v. **Krishna Menon** [2010(2) KLT 397], **Rangappa** v. **Mohan** [2010(2) KLT 682] and **Mallavarapu Kasivisweswara Rao** v. **Thadikonda Ramulu Firm & Others** [2008(7) SCC 655]. 5. In the light of the arguments advanced by the learned counsel for the appellant and in the light of the evidence and materials which are referred to by the learned Magistrate in the impugned judgment, the question to be considered is whether the appellant succeeded in making out a prima facie case so as to interfere with the finding and acquitting the accused, recorded by the trial court. 6. The specific case of the complainant is that the accused borrowed an amount of Rs.1 lakh and towards the discharge of the above liability, the accused issued Ext.P1 cheque. Thus, according to the complainant, it is a loan transaction whereas the case that put up by the defence through the cross-examination of PW1 is that there was CRL.A.NO.20 of 2009 :-4-: an agreement for sale between the accused and his father on one side and the complainant on the other side in respect of property jointly owned by them. As part of such agreement, they received Rs.10 lakhs in cash from the complainant, towards the advance and at the time of receiving that amount, the accused issued Ext.P1 cheque in blank form to the complainant. According to the accused, though the advance amount was repaid, the complainant did not return the cheque, but misusing the same, he filed the present complaint. On the basis of the available materials and evidence and the rival contentions, the trial court formulated three points for its consideration among which the first point is whether the accused issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt. While considering the first question, the learned Magistrate has referred to the evidence and materials on record, either in the complaint or in the proof affidavit filed in lieu of chief examination, the complainant has no case with respect to the sale of the property. The trial court has found that initially, the complainant, who was examined as PW1, was CRL.A.NO.20 of 2009 :-5-: not prepared to admit the case of accused with respect to the execution of the agreement connected with the sale of property. The learned Magistrate has specifically found that in fact PW1 denied at one stage about any agreement in respect of 48 cents of property for a sale consideration of `74 lakhs. But, he had subsequently admitted and deposed that the accused and his father borrowed `20 lakhs by instalments after executing an agreement for sale, on receipt of the first instalment of `10 lakhs. During further cross-examination, he had deposed that the said agreement was destroyed on receipt of the entire amount back. On such denial, the accused has produced Ext.D1 and marked the same through PW1. The learned Magistrate after close scrutiny of Ext.D1, found that an agreement was executed in respect of 48 cents of property belonging to the accused and his father for a total consideration of `74 lakhs and the complainant paid `10 lakhs in advance. Ext.D1 was executed on 21.5.2005 and its tenure was fixed as six months from the date of execution. According to the accused, the property in question was sold to another person as the CRL.A.NO.20 of 2009 :-6-: complainant did not turn up to get the sale deed executed after making the balance payment. PW1 has also admitted through crossexamination that he received `18 lakhs, a day after disposal of the property and out of the balance, `1 lakh was paid in December 2006 and towards the payment of the remaining `1 lakh, Ext.P1 cheque was issued with instruction to present the same after 5.1.2007. PW1 has also admitted that the cheque was undated and hence he himself put the date on Ext.P1 and presented the same for encashment. Thus, it can be seen that during the trial of the case, the complainant gave a go by to his case that put forward in the complaint and in the proof affidavit. Thus, it can be seen that the allegation in the complaint is that the accused issued a dated cheque in discharge of the liability of `1 lakh. The evidence on record is no way helpful for the complainant to prove the case put forward in the complaint. More over, from the available materials, it can be seen that the date in Ext.P1 cheque was put by PW1, the complainant himself. That fact itself goes against the very pleading of the complainant in the CRL.A.NO.20 of 2009 :-7-: complaint that the accused issued a dated cheque. Thus, it can be seen that Ext.P1 is not drawn by the accused as alleged by the complainant. It is also found by the learned Magistrate that Ext.P1 cheque is not issued in the name of the complainant since it is a cash cheque. The learned Magistrate has also found that from Ext.P1, it is manifest that the signature, date and other entires in the cheque are recorded by using three different inks. The above facts itself would be sufficient to hold that the cheque was not executed and issued by the accused as claimed by the complainant in the complaint. The facts and circumstances involved in the present case are entirely different from the facts involved in the case reported and cited by the learned counsel for the appellant. In **Krishna Janardhan Bhat** v. **Dattatraya Hegde** [2008(1) KLT 425 (SC)], the Honourable Apex Court has held as follows:- “.......... _Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of_ CRL.A.NO.20 of 2009 :-8-: _probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. Once the accused is found to discharge his initial burden, it shifts to the complainant.”_ It is held in the above decision that an accused, for discharging burden to rebut the presumption, need not examine himself and he may discharge such burden on the basis of materials already brought on record. In the present case, the defence has succeeded in bringing out a case to the effect that Ext.P1 cheque reached in the hands of the complainant connected with a property deal and the complainant has deliberately suppressed the property deal in his complaint. He had also gone to the extent to depose before the court that the agreement connected with the property deal is destroyed when the amount was repaid. But the accused produced Ext.D1 on the basis of which the court could arrive into its own conclusion regarding the falsity of the case of the complainant. Thus, in the present case, the accused has succeeded in making out probable case based upon the materials brought on record through the admission of PW1 and thus, the dictum CRL.A.NO.20 of 2009 :-9-: laid down by the Apex Court in the decision reported in **Krishna ' Janardhan Bhat s** case is squarely applicable in the present case. In the light of the facts and circumstances of the case and in view of the settled position of law, according to me, the appellant has miserably failed to make out a prima facie case to entertain the appeal any further so as to interfere with the finding of the court below. The reasoning given by the learned Magistrate is based upon the materials and evidence on record and therefore, it cannot be said that the finding of the court below is perverse or illegal. If that be so, there is not even a remote scope for any interference with the order of acquittal recorded by the trial court in favour of the accused. Therefore, the appeal is devoid of any merit and accordingly, the same is **V.K.MOHANAN, Judge** MBS/ CRL.A.NO.20 of 2009 :-10-: ## **V.K.MOHANAN, J** . CRL.A.No. OF 2003 **JUDGMENT** Dated:.2012 ## CRL.A.NO.20 of 2009 :-11-: