K.K. Manilal v. Suresh

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** **CRL.A NO. 88 OF 2006** **AGAINST THE JUDGMENT DATED 03.09.2005 IN ST NO.5012 OF 2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THRISSUR APPELLANT/COMPLAINANT :** **K.K.MANILAL, S/O KOZHIPARAMBIL KUNHANDI, MANAGING PARTNER, ELITE FABRICS, MUNICIPAL OFFICE ROAD, THRISSUR, REPRESENTED BY POWER OF ATTORNEY HOLDER UNNIKRISHNAN, S/O.GOPI, KANIMANGALAM, THRISSUR. BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN** ## **RESPONDENT/ACCUSED:** **SURESH, INICKAL HOUSE, THANISSERY DESOM, KARALAM VILLAGE, MUKUNDAPURAM TALUK. SRI.SANAL P.RAJ -P.P.** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON** **17.07.2024, THE COURT ON 22.07.2024 DELIVERED THE FOLLOWING:** 2 **Crl.Appeal No.88 of 2006** ## **C.S.SUDHA, J.** **--------------------------------------------Crl.Appeal No.88 of 2006 --------------------------------------------Dated this the 22nd day of July 2024** ## **J U D G M E N T** This appeal under Section 378(4) Cr.P.C. has been filed by the complainant against the judgment dated 03/09/2005 in S.T.No.5102/2002 on the file of the Judicial First Class Magistrate Court-II, Thrissur acquitting the accused under Section 255(1) Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act (the N.I. Act). 2. The allegation is that for the textile goods purchased by the accused from the complainant, the former issued Ext.P2 cheque dated 30/12/2001 for an amount of ₹32,000/-, which cheque was drawn on the Central Bank of India, Irinjalakuda Branch. The accused had assured the complainant that there was sufficient funds in his account to honour the cheque. However, 3 ## **Crl.Appeal No.88 of 2006** when the complainant presented the cheque for collection through the Indian Bank, Municipal Office Road, Thrissur, the cheque was dishonoured for the reason that the account had been closed. Hence, the complainant caused to issue a statutory notice through his lawyer on 22/01/2002 demanding the cheque amount. The notice was returned unclaimed on 08/02/2002. The cheque amount has not been cleared so far and hence the complaint. 3. When the accused appeared before the trial court, he was furnished with the copies of all the relevant records. The particulars of the offence was read over and explained to the accused to which he pleaded not guilty. PW1 and PW2 were examined and Exts.P1 to P10 were marked on the side of the complainant. 3.1. After the close of the evidence of the complainant, the accused was questioned under Section 313(1)(b) Cr.P.C. He denied having committed any offence as alleged by the complainant. The accused also disputed his signature in Ext.P2 cheque. According to the accused, he was running a hotel and 4 ## **Crl.Appeal No.88 of 2006** one Antony had supplied textile items to his employees. Antony had obtained a blank cheque leaf from the accused. Antony later started working with Elite Fabrics. In support of the defence case, the accused examined DW1 and marked Ext.D1 and D2 series which are his account opening form and specimen signature cards. 3.2. The trial court on a consideration of the oral and documentary evidence and after hearing both sides, acquitted the accused finding that the complainant had failed to establish the transaction alleged in the complaint. Hence, the complainant has come up in appeal. 4. The only point that arises for consideration in this appeal is whether impugned judgment of acquittal requires any interference by this Court. 5. Heard the learned counsel for the complainant/appellant. Though notice was served on the respondent/accused, he never turned up. Hence, I proceed to 5 ## **Crl.Appeal No.88 of 2006** consider the case on merits relying on the decisions in **Bani Singh v. State of U.P., AIR 1996 SC 2439** and **Ramesan v. State of Kerala, (2020) 3 SCC 45** . 6. I perused all the records in the case including the oral and documentary evidence adduced by both sides. The complainant relies on the testimony of PW1 and PW2 and the exhibits marked on his side. The complainant is K.K. Manilal, the Managing Partner of Elite Fabrics, Thrissur. The complainant did not examine himself in support of his case. On the other hand, his power of attorney, namely, PW1 was examined on his behalf. The testimony of PW1 makes it clear that he has no personal knowledge about the transaction alleged in the complaint and he was never present when the transaction took place. In the light of the unsatisfactory testimony of PW1, the complainant examined PW2 who is stated to be his cashier. PW2 in his chief examination deposed that he had seen the accused handing over the cheque to the complainant. Then a leading question was put to him thus - “ _Did not the accused put his signature and_ 6 ## **Crl.Appeal No.88 of 2006** _handover the cheque_ ” to which he answered in the affirmative. Leading questions cannot be asked in the chief examination except with the permission of the court. It is well settled that answers elicited by asking leading questions are liable to be eschewed. It is true that in the cross-examination, PW2 deposed that the signature in Ext.P2 cheque is that of the accused. 7. PW1 in his cross-examination deposed that the daybooks maintained in the establishment of the complainant would prove the transaction and when PW2 was examined the day-book was produced and marked as Ext.P9. Ext.P9 is described as ' _Elite Fabrics, Thrissur-1 Subsidiary Ledger Trade Debtor's'._ Ext.A9 states that an amount of ₹32,000/- is due from Keerthy's, Irinjalakuda as on 31/12/2001. What is the connection between Keerthy's, Irinjalakuda and the accused? There is no evidence on record. Neither in the complaint nor in Ext.P5 lawyer notice the accused is described as the proprietor or described as a person having some connection with the said establishment. No evidence has been brought in to connect the accused with 7 ## **Crl.Appeal No.88 of 2006** Keerthy's Irinjalakuda. Therefore the transaction leading to the issuance of Ext.P2 cheque has not been established. 8. The accused also denied his signature in Ext.P2 cheque. In order to substantiate his contention, he examined DW1, the Manager, Central Bank of India where he is holding an account. Ext.D1 is his account opening form and Ext.D2 series, his specimen signature cards given at the time of opening the account. DW1 deposed that there is a slight difference in the handwriting and signature seen in Ext.P2 and in Ext.D1 and D2 series. The trial court invoking Section 73 of the Evidence Act, 1872 compared the disputed signature with the admitted signatures of the accused and concluded that they are different. It is true that it is not an ideal situation for the court to examine and arrive at a finding when the signature is disputed. It is always better that expert evidence is obtained in such matters. 9. Even in the absence of expert evidence, the evidence let in by the complainant does not prove his case at all. It is true 8 **Crl.Appeal No.88 of 2006** that the explanation given by the accused as to how the complainant came in possession of the cheque is also not quite satisfactory. But the complainant cannot win on weaknesses/loop holes in the case set up by the accused. The attempt of the complainant was to prove the transaction pleaded in the complaint through Ext.P9, in which attempt also he has not succeeded. So as long as the transaction pleaded in the complaint and the execution of the cheque for the discharge of the debt referred to in the complaint is not established, the onus would not shift to the accused to rebut the presumption contained in 118 and 139 of the N.I.Act. In these circumstances, I find no infirmity in the impugned judgment calling for an interference. Hence the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms