Kurian Abraham v. K. Ramakrishnan Nair and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934 CRL.A.No. 1751 of 2009 ------------------------------------ (CC.324/2007 of J.M.F.C.-IV,KOZHIKODE) ## APPELLANT/PETITIONER/COMPLAINANT: ------------------------------------------------------ KURIAN ABRAHAM AGED 46 YEARS, 33/6176 A, THEKKUMURIYIL HOUSE P.O.CHEVAYUR, KOZHIKODE DISTRICT. BY ADV. SRI.K.M.FIROZ RESPONDENTS/ACCUSED AND STATE: --------------------------------------------------- 1. K.RAMAKRISHNAN NAIR, “SAROVARAM”, - 28/118-A, CHEVARAMBALAM P.O., CALICUT - 7. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. LALIZA T.Y. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A No.1751 of 2009 ----------------------------------------** Dated the 2nd day of July, 2012 ## **JUDGMENT** The complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act is the appellant herein as he is aggrieved by the judgment dated 9.2.2009 in C.C.No.324 of 2007 of the court of Judicial First Class Magistrate-IV, Kozhikode, by which the learned Magistrate acquitted the accused under section 255(1) Cr.P.C. 2. The case of the complainant is that the accused borrowed an amount of Rs.2,15,000/- during the period 20042005 and, towards the discharge of the said liability including the interest, the accused issued Ext.P1 cheque dated 26.9.2006 for an amount of Rs.2,30,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account of the accused and the accused did not repay the amount in spite of a statutory notice served on him and CRL.A.NO.1751/09 ## **:-2-:** therefore the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P9 documents. Though no evidence, either oral or documentary was produced from the side of the defence, Ext.D1 was marked. The trial court, after considering the entire evidence and materials on record, has categorically found that the complainant has not proved that Ext.P1 cheque is duly executed by the accused for the discharge of a legally enforceable debt and consequently the accused is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri Firoz K.M., the learned counsel appearing for the appellant and I have perused the judgment of the trial court. 4. The learned counsel for the appellant vehemently submitted that, Ext.P1 cheque was executed by the accused since the same contained his signature, but the learned CRL.A.NO.1751/09 **:-3-:** Magistrate has taken a factually incorrect stand and came to the conclusion that the complainant failed to prove the execution of the cheque. It is also the submission of the learned counsel that the accused has not produced any evidence to substantiate the defence. Thus the counsel submitted that the findings and order of acquittal recorded by the trial court is liable to be reversed and the accused is to be convicted. 5. I am unable to sustain the above contention. The learned Magistrate, in paragraph 11 of his judgment, has specifically found that the entire chief examination would show that, according to PW1 the accused handed over the cheque to the complainant. There is no case for the complainant, either in the complaint or during chief examination, that the cheque was handed over to the complainant by another person. But during the cross examination, PW1 has stated that the cheque was handed over by one Sureshkumar. So regarding the execution and issuance of the cheque, the complainant has no consistent case and there is no proper pleadings and CRL.A.NO.1751/09 **:-4-:** evidence. Moreover, in paragraph 12 of the impugned judgment, the learned Magistrate has also observed that, when specific question was put to PW1 that the signature as well as the other entries in the cheque are not made by the accused, PW1 deposed that signature is that of the accused. According to PW1, cheque was not executed in the presence of the complainant. The learned Magistrate has also found that the evidence of the complainant further shows that the complainant had compared the signature that contained in the receipt issued to him by the accused with the signature found in the cheque and thus he deposed that he came to know that the cheque contained the signature of the accused. In the result, absolutely there is no evidence to prove that the cheque in question was executed and issued by the accused. 6. PW1 has also admitted that the cheque was handed over to him by one Sureshkumar and the receipt issued by the accused returned to Sureshkumar. The learned Magistrate refused to believe the above version of PW1 holding that, in the CRL.A.NO.1751/09 **:-5-:** normal course, when a person issues a receipt in respect of the amount and subsequently issues a cheque for the said amount, the receipt will not be returned unless the cheque is encashed. The above opinion and observation of the learned Magistrate appears to be correct. It is also relevant to note that in the absence of any specific plea in the complaint, and though stated during the cross examination that the cheque was handed over to the complainant by another person namely Sureshkumar, the complainant did not take any step to examine the said Sureshkumar to substantiate his claim, regarding the issuance of the cheque, though the same does not find a place in the complaint. Thus absolutely there is no evidence to prove that the cheque in question is executed and issued by the accused in favour of the complainant. Therefore, I find no illegality with the findings of the learned Magistrate. Therefore, even if this appeal is entertained, according to me, there is not even a little scope to interfere with the above finding and the order of acquittal. The learned Magistrate, after assigning CRL.A.NO.1751/09 ## **:-6-:** convincing reasons, refused to believe the case of the complainant. Such finding cannot be treated as perverse. In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: “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.” The appellant in the present case has miserably failed to make out exceptional cases or compelling reasons to interfere with the order of acquittal recorded by the trial court. Therefore, I find no merit in this appeal. Accordingly, the same is dismissed. ## CRL.A.NO.1751/09 ## **:-7-:** **V.K.MOHANAN,** **JUDGE** kvm/- kvm/-