K.S. Navas v Kalankerriyil Financial Enterprises and Others and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934 ## CRL.A.No. 1295 of 2009 -------------------------CC.975/2005 of J.M.F.C.-II, CHERTHALA CRLP.489/2009 DATED 01-07-2009 PETITIONER/COMPLAINANT: ------------------------- K.S.NAVAS, SHAHIDA MANZIL, KUTHIYATHODU.P.O., CHERTHALA, NOW RESIDING AT K.S.MANIZL, KUTHIYATHODU P.O. BY ADVS.SRI.V.P.MOHAMMED NIYAZ SRI.K.RONALD JOSE RESPONDENTS/ACCUSED 1 TO 3 & STATE: ------------------------------------- 1. KALANKERRIYIL FINANCIAL ENTERPRISES, KUTHIATHODU.P.O. 2. K.K.ANTONY, MANAGING PARTNER, KALANKERIYIL FINANCIAL ENTERPRISES, KUTHIATHODU.P.O. 3. K.K.KUNJUMON, MANAGING PARTNER, KALANKERIYIL FINANCIAL ENTERPRISES, KUTHIATHODU.P.O. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2,3BY ADV. SRI.SOORAJ T.ELENJICKAL R2,3BY ADV. SRI.M.A.JOSEPH MANAVALAN R4 - BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ------------------------------------Crl.A.No.1295 of 2009** ## **-------------------------------------Dated this the 10[th] day of December, 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 20/07/2007 in C.C.No.975 of 2005 of the court of the Judicial Magistrate of the First Class-II, Cherthala 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 the first accused is an institution dealing with chitty business and A2 and A3 are its managing partners, who issued Ext.P1 cheque for an amount of `50,000/- which, when presented for encashment, was dishonoured and the accused has not repaid the amount in spite of the statutory notice served on them. Thus, according to the complainant, the Crl.A.No.1295/2009 : 2 : accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, the complainant was examined as PW.1 and produced Exts.P1 to P6 documents. No evidence, either oral or documentary was produced from the side of the defence. The trial court, after considering the entire evidence and materials, has found that, the complainant has not established how the cheque came into his hand and further found that the nature of the transaction between the complainant and the accused is not proved and it is not clear whether the cheque was issued for a legally enforceable debt or liability. According to the learned Magistrate, the preponderance of probability is with the defence version. On the basis of the above finding, according to the learned Magistrate, the complainant has failed to prove the connection of accused Nos.2 and 3 with the first accused. Accordingly, it is held that the complainant has failed to prove the case under Section 138 of the N.I. Act. It is the above finding and order of Crl.A.No.1295/2009 : 3 : acquittal that are challenged in this appeal. 3. The learned counsel for the appellant vehemently submitted that the signature in Ext.P1 cheque is admitted and no evidence is adduced by the accused in terms of their defence. Thus, according to the learned counsel, the findings of the court below and the order of acquittal are liable to be set aside and the accused are liable to be convicted, after reversing the order of acquittal. 4. I have carefully considered the arguments advanced by the learned counsel for the appellant and the respondents and I have gone through the judgment of the trial court. 5. In the light of the arguments advanced by the learned counsel for the appellant and the findings of the court below based upon the evidence and materials on record, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the finding of the court Crl.A.No.1295/2009 : 4 : below and the order of acquittal recorded in favour of the accused. The peculiar facts involved in the case shows that, the complainant has miserably failed to prove the transaction between the complainant and the accused under which the complainant has released an amount of `50,000/- as loan to the accused. Absolutely there is no evidence with respect to the transaction. It appears that the first accused, company originally engaged in the chitty transaction but the complainant has no case that the cheque in question was executed and issued connected with any chitty transaction between the complainant and the first accused company. According to the complainant, it is a simple hand loan given by the complainant to the accused, but there is no evidence to substantiate the said facts and no document is produced. Whereas the specific defence taken by the accused is that there was a chitty firm and due to financial problem, the firm was closed and the subscribers including the complainant had rushed to the chitty firm and with force Crl.A.No.1295/2009 : 5 : and threat the complainant had taken away the alleged cheque from the chitty firm and forged and fabricated the same for the purpose of the present case and the present complaint was filed on the basis of such fabricated cheque. In the absence of any positive evidence from the side of the complainant regarding the transaction and the circumstances under which the cheque happened to reach the hands of the complainant, the learned Magistrate has found that the complainant has not established how the cheque came into his hand and also not proved the transaction between the complainant and the accused. The appellant has no case that the learned Magistrate has overlooked any evidence or materials which are in favour of the complainant to come into a different conclusion. Simply for the reason the cheque bears the signature of the accused, which produced from the possession of the complainant, no offence under Section 138 of the N.I. Act is attracted, unless the necessary ingredients of Section 138 of the N.I. Act are Crl.A.No.1295/2009 : 6 : established with the support of cogent evidence. Thus, it can be seen that, the learned Magistrate arrived at his own conclusion which are referred to above, on the basis of the available materials and evidence. Therefore, it cannot be said that the findings of the court below are perverse or illegal. 6. 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, “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, Crl.A.No.1295/2009 : 7 : I find no prima facie 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. Sd/- **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge