K.M. Sidharthan v. N.V. Thilakan and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 16TH DAY OF JANUARY 2013/26TH POUSHA 1934 CRL.A.No.2389 of 2009 ( ) -------------------------AGAINST THE JUDGMENT IN CC.46/2009 DATED 17-09-2009 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, CHALAKUDY APPELLANT(S)/COMPLAINANT: ------------------------ K.M.SIDHARTHAN, S/O. KATTILAN MADHAVAN, VELLIKULANGARA VILLAGE & DESOM, MUKUNDAPURAM TALUK THRISSUR DISTRICT. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S):ACCUSED & STATE ----------------------------- 1. N.V.THILAKAN, S/O. NJATTUVETTIL VASU, HOUSE NO.414/A,ANNANADA P.O.,NEAR KAIPPILLY TEMPLE,MANDIKUNNU,KALLUR VADAKKUMMURI VILLAGE MUKUNDAPURAM TALUK,THRISSUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SMT.S.HIMA-R2 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR, J. ========================== CRL.APPEAL. No.2389 OF 2009 ==========================** Dated this the 16[th ] day of January, 2013 ## **JUDGMENT** This appeal is directed against the judgment dated 17.9.2009 passed by the Court of the Judicial First Class Magistrate-II, Chalakudy in C.C.No.46 of 2009. The appellant was the complainant and the first respondent herein was the accused therein. The appellant filed a private complaint alleging commission of offence under section 138 of the Negotiable Instruments Act against the first respondent. His case was that the first respondent borrowed an amount of Rs.20,000/- from him and in discharge of the said legally enforceable debt, issued Ext.P1 cheque dated 8.5.2008. On presentation for encashment, Ext.P1 cheque got dishonoured on the ground 'account closed'. The appellant thereafter issued demand notice within the **Crl.A.2389/09** 2 statutorily prescribed period. Despite the receipt of the said notice, first respondent failed to reply and also to pay back the amount covered by the said cheque within the statutorily prescribed period. It was in the said circumstances that the said complaint was filed with the allegation of commission of offence under section 138 of the NI Act. 2 **.** To prove the charge against the first respondent/accused, the appellant got himself examined as PW1 and got marked Exts.P1 to P6. On closing the complainant's evidence, the first respondent/accused was questioned under section 313 of the Code of Criminal Procedure. As it was not a fit case for acquittal, the appellant was called upon to enter on his evidence. No evidence was adduced on the part of the appellant either oral or documentary. The trial court evaluated the evidence on record and upon such evaluation found that the issuance of Ext.P1 cheque as also the consideration were not proved. Consequently, the first respondent was found not **Crl.A.2389/09** 3 guilty and was acquitted under section 255(1) of the Cr.P.C. This appeal with leave was filed against the said judgment of acquittal. 3. Before adverting to the contentions it is only worthwhile to take note of the admitted factual position as also the settled legal position in respect of the issues involved. There is no dispute with respect to the fact that the first respondent had not admitted the execution of Ext.P1 cheque. The question as to how the execution of cheque to be proved was considered by this Court in the decision reported in **Santhi v. Mary Sherly [2011 (3) KHC 22]** . The trial court found that the appellant had not stated the exact date of borrowal of the amount either in the complaint or in the affidavit filed in lieu of the chief examination. He deposed that the accused had borrowed Rs.5,000/- and Rs.10,000/- prior to the present transaction. Though he has not stated in the complaint the date on which Ext.P1 cheque was handed over to him, on being examined he deposed that it was on 8.5.2008 that the said cheque was issued. There is no case for **Crl.A.2389/09** 4 the appellant that the first respondent had not denied the execution of Ext.P1 cheque and upon such denial he had not proved its execution resorting to any of the known methods especially in the light of the decision in **Santhi's** case (supra). 4. The question when execution is not proved whether the complainant is entitled to seek the benefit of the presumption available under section 138 of the NI Act, was considered by this Court in the decision of this Court in **Gopan v. Tonny Varghese (2008 (1) KLT 257)** . Going by the said decision, when the execution is disputed and it is not proved, the complainant has to let in evidence to prove the original transaction. It is in the said circumstances that a specific averment with respect to the date on which he lent money to the accused assumes relevance. Necessarily, the original transaction has to commence from that date. In fact, there is no case for the appellant that the accused is his relative. True that he deposed that he got acquaintance with the accused. The case of the first respondent is **Crl.A.2389/09** 5 also to be looked into in this context. According to him, he issued Ext.P1 cheque as a security to one C.D. Paulson and that, complainant is the benami of the said Sri.C.D. Paulson. It is his further case that he had repaid the amount borrowed from the said Paulson and it is only on account of the dispute regarding the payment of interest that the present case has been filed though the appellant. It is also stated by him during his examination under section 313 Cr.P.C that the account was closed years prior to the filing of the present case. Be that as it may, the question is when the execution of a cheque is disputed and the appellant/complainant failed to prove its execution by resorting to any of the known methods recognized under law and while discharging his burden to let in evidence regarding the original transaction whether he is bound to disclose the date on which the amount was borrowed. There is no case for the appellant that he had stated in the complaint regarding the date on which the amount was borrowed by the first respondent. In the said circumstances, the question whether the appellant had the source to raise the fund to lend **Crl.A.2389/09** 6 money has also to be considered. Appreciating the oral testimony of PW1 with respect to his income it was found that he had miserably failed to show that he had income to lend money. In such circumstances, I could not find any illegality or perverseness in the finding of the learned Magistrate that the appellant had failed to prove the issuance of Ext.P1 cheque and its consideration. Necessarily, the failure on the part of the appellant to give the exact date on which the amount was borrowed in the complaint or during the evidence is sufficient to cast suspicion with respect to the alleged transaction. It is the settled position of law that on the same set of evidence if two views are possible and the view of the trial court is one which is possible and plausible appellate interference is not called for. In view of the evidence explained above, it could be held that the view taken by the trial court after evaluation of the evidence on record cannot be said to be a view which is not possible or plausible. In such circumstances, I have no hesitation to hold that the appellant has failed to make out a prima facie case warranting appellate **Crl.A.2389/09** 7 interference. This appeal has to fail and accordingly, it is dismissed. Sd/- **C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.A.2389/09** 8 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **Crl.A.2389/09** 9