Lalikumar v. Raju & State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934 CRL.A.No. 1189 of 2009 ----------------------[AGAINST THE JUDGMENT DTD.27.3.2009 IN CC.305/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM] APPELLANT(S)/COMPLAINANT:: ------------------------- LALIKUMAR, AGED 36, S/O.RAGHAVAN, KANNATHERIL KANDATHIL, KANDALLOOR THEKKUM MURI KANDALLOOR VILLAGE, KARTHIKAPPALLI TALUK. BY ADV. SRI.S.MOHANAN RESPONDENTS(S)/ACCUSED & STATE: ------------------------------- 1. RAJU, AGED 33, S/O.SADANANDAN, ANJUTHENGILKUNNEL VEEDU, KANDALLOOR THEKKUM MURI KANDALLOOR VILLAGE, KARTHIKAPPALLI TALUK. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.C.V.MANUVILSAN BY ADV. SRI.G.SUDHEER (THURAVOOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07-09- 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1189 of 2009** **----------------------------------------** Dated this the 7[th] day of September, 2012 ## **J U D G M E N T** The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 27.3.2009 in C.C.No.305 of 2007 of the court of Judicial First Class Magistrate, Kayamkulam 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 accused on 15.4.2007 borrowed an amount of `1,30,000/- from the complainant and to discharge the said debt, the accused issued Ext.P1 cheque dated 15.5.2007 on the date of the borrowal of the amount itself. It is the further case of the complainant that when the above cheque was presented for encashment, the same was dishonoured due to insufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of formal demand and Crl.A.No.1189 of 2009 :-2-: therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. To substantiate the above claim, during the trial of the case, Pws.1 and 2 were examined and Exts.P1 to P6 were marked. The case set up by the accused is to the effect that he has not borrowed any amount from the complainant, but on his intervention, the complainant had lent `1,10,000/- to one Mr.Thomas and the said person absconded. The complainant met the accused to hand over his blank cheque to him. The accused has not adduced any evidence either oral or documentary. The trial court, after considering the entire evidence and materials, found that the execution of cheque is not proved and hence, the complainant cannot claim the benefit of statutory presumption under Sections 139 and 118 of the N.I.Act and it is also held that the testimony of the complainant is doubtful as he is not aware of the details regarding the accused, the nature of his employment and his financial capacity. Accordingly, the learned Magistrate found that the complainant failed to prove his case and Crl.A.No.1189 of 2009 **==> picture [21 x 9] intentionally omitted <==** accordingly, the accused is found not guilty and consequently, he is acquitted 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.S.Mohanan, learned counsel for the appellant and Sri.C.V.Manuvilsan, learned counsel for the first respondent. I have also perused the judgment impugned in this appeal. 4. Counsel for the appellant submitted that the accused has admitted the issuance of cheque and also the acquaintance with the complainant and therefore, the finding of the court below is incorrect and liable to be set aside. It is also the submission of the learned counsel that PW2, whose name was shown in the list attached to the complaint, has also stated about the borrowal of the amount and the execution of the cheque and therefore, the findings of the court below is against the evidence and materials on record. On the other hand, counsel for the respondent submitted that the complainant has Crl.A.No.1189 of 2009 :-4-: miserably failed to prove the transaction and execution and issuance of the cheque and therefore, the findings of the court below in this regard are absolutely correct and no interference is warranted. 5. I have carefully considered the arguments advanced by the counsel for the appellant and the counsel for the respondent. I have perused the judgment of the trial court. 6. In the light of the rival contentions and in view of the findings of the court below, based upon the materials and evidence referred to in the impugned judgment, 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 impugned judgment. The trial court in paragraph 6 of its judgment has categorically found that the complainant has not seen the accused executing the cheque. It was also observed that to a specific question put by the learned defence counsel, the complainant admitted that he has not seen the accused signing the cheque. Besides the above, the learned Magistrate has Crl.A.No.1189 of 2009 :-5-: also observed that in the deposition of the complainant, he had stated that he does not know any details regarding the accused and he is unaware of the nature of the employment of the accused. Thus, on the basis of the above observation, according to the learned Magistrate, it can be safely concluded that regarding the execution of the cheque, absolutely there is no evidence or material. During the hearing of the case, the counsel for the appellant submitted that the cheque in question was handed over by the accused to the complainant on 15.4.2007 itself, the date on which Rs.1,30,000/- was received by the accused though Ext.P1 cheque is dated 15.5.2007. No explanation or submission is there from the part of counsel for the appellant as to how the complainant has paid Rs.1,30,000/- on 15.4.2007 and how the accused brought a filled up cheque for such an amount. It is in this juncture, the defence set up by the accused became relevant. According to the accused, his case as borne out from the time of cross-examination of PW1 is that the complainant forceably obtained Crl.A.No.1189 of 2009 :-6-: a blank cheque from him, connected with a transaction between the complainant and one Mr.Thomas, since the said amount was given at the intervention of the accused. The appellant has no case that the relationship between the appellant and the accused is so thick so as to hand over a sum of Rs.1,30,000/- to the accused without any security or any document. In this connection, counsel for the appellant submitted that the amount was given when the accused handed over the cheque. Still then, the question arises as to whether there was any previous contact or transaction between the complainant and the accused, as I indicated earlier, with the complainant to keep Rs.1,30,000/- so as to hand over to the accused on 15.4.2007. There is absolutely no evidence or whisper to that effect. If that be so, the transaction claimed by the complainant cannot be believed. It is also relevant to note that the learned Magistrate has already found from the deposition of PW1 that the complainant has not seen execution of the cheque including putting the signature by the accused in the cheque in Crl.A.No.1189 of 2009 :-7-: question. The lapse on the part of the complainant and the lack of evidence in this regard, according to me, is very pertinent in the light of the defence taken by the accused. 7. Learned counsel for the appellant submitted that when PW2 was examined, he had stated about the transaction including the execution and issuance of cheque. Learned Magistrate has already found that neither in the complaint nor in the affidavit, the complainant had stated that PW2 is a person cited to prove the execution of the cheque and he knows more facts regarding the transaction than the complainant. It is also relevant to note that the evidence of PW2 has been referred to by the learned magistrate in the impugned order which would show that in the affidavit filed by PW2, it is stated that on 15.4.2007, the accused had come over to his house and in his presence, he filled up the cheque putting the date as 15.5.2007 and executed in favour of the complainant for Rs.1,30,000/-. The above fact is not tallying with the case of the Crl.A.No.1189 of 2009 :-8-: complainant. When the complainant fails to prove the entire transaction including the borrowal of the amount and the execution and issuance of the cheque, the evidence of PW2, who was not cited to prove the execution of the cheque is not helpful for the complainant to prove the transaction and execution of the cheque. 8. From the above discussion, it is crystal clear that the finding of the learned Magistrate that the complainant has failed to prove the execution of the cheque is absolutely correct and is not sufficient to take a contra view. In the recent decision of the Apex v. Court reported in **State of Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “ _In cases where there are exceptional 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.”_ Crl.A.No.1189 of 2009 :-9-: Thus, on examination of the facts and circumstances involved in the present case, which is referred to by the learned Magistrate in the impugned judgment, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the appellant has miserably failed to show that the judgment impugned is a perverse one. If that be so, according to me, the appellant has failed to make out a prima facie case in support of his challenge against the impugned judgment and to interfere with the order of acquittal recorded by the trial court. Therefore, the appeal fails and the same is dismissed accordingly. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.1189 of 2009 :-10-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 Crl.A.No.1189 of 2009 :-11-: ## **JUDGMENT** Dated:11.11.2011