Mathen K.M. v. Saramma Jacob and C.C. Thomas and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 18TH OCTOBER, 2011 / 26TH ASWINA, 1933 CRL.A.No. 1815 of 2004 ------------------------------- - [ LEAVE GRANTED AS PER ORDER IN CRLP.465/2004 Dated 05/10/2004 AGAINST THE ORDER IN C.C.NO.365/2001 DATED 7.5.2004] .................... APPELLANT(S): PETITIONER/COMLPLAINANT: --------------------- MATHEN K.M., S/O. MATHEW, VADAKKEMURIYIL BUNGLOW, KARIMPALOOR, PATHANAPURAM. BY ADV. SRI.S.RAJEEV SRI.K.V.VINODKUMAR RESPONDENTS(S): ACCUSED 1 & 2 AND STATE: -------------------------- 1. SARAMMA JACOB, W/O. JACOB, PUTHENVILA VEEDU, KARIMBALOOR, PATHANAPURAM. 2. C.C. THOMAS, S/O CHACKO, GRACE COTTAGE, KARIMBALLOOR, PATHANAPURAM. 3. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.V.ANIL KUMAR FOR R2 BY PUBLIC PROSECUTOR SMT.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1815 of 2004** **----------------------------------------** Dated this the 18[th] day of October, 2011 ## **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 as he is aggrieved by the judgment dated 7.5.2004 in C.C.No.365 of 2001 of the court of the Judicial First Class Magistrate-III, Punalur by which the learned Magistrate acquitted the accused under Section 255(1) of the Code of Criminal Procedure (for short 'the Cr.P.C.'). 2. The case of the complainant is that the accused borrowed a sum of Rs.50,000/- for the construction of a retaining wall by name 'anannavellam kulirnnavellam' bridge and when the said amount was demanded, the accused issued the cheque in question, which when presented for encashment, dishonoured and the cheque amount was not paid in spite of the lawyer notice. During the trial, in C.C.No.365 of 2001, the complainant himself was examined as PW1 and CRL.A.NO.1815 OF 2004 :-2-: produced Exts.P1 to P11. From the side of the defence, DW1 was examined and Exts.D1 and D2 were marked. The trial court, on the basis Ext.D2 judgment, found that there was absolutely no borrowal of Rs.50,000/- from the complainant by the accused and they did not issue Ext.P1 cheque in discharge of a legally enforceable debt. Thus, consequently, the accused are acquitted under Section 255(1) of the Cr.P.C. It is the above finding and acquittal challenged in this appeal. 3. I have heard Sri.S.Rajeev, learned counsel appearing for the appellant and Sri.K.V.Anilkumar, learned counsel appearing for respondents 1 and 2. 4. Counsel for the appellant vehemently submitted that the accused has admitted the signature and therefore, the offence under Section 138 of the N.I.Act is attracted and the appellant is entitled to get presumption under Section 139 of the N.I.Act, but, the learned Magistrate miserably failed to consider the above aspect. According to the learned counsel, the learned Magistrate committed wrong in CRL.A.NO.1815 OF 2004 **==> picture [21 x 9] intentionally omitted <==** relying on a civil court judgment and acquitting the accused based upon such judgment. Learned counsel submitted that the learned Magistrate has not considered that civil proceedings and criminal proceedings are separate and distinct and in the present case, all basic statutory formalities are complied with and the accused have admitted the signature and therefor, there is no necessity to consider the civil court judgment. But, the learned Magistrate, without considering the evidence and materials, which are relevant for the purpose of Section 138 of the N.I.Act on the basis of Ext.D2 judgment, erroneously found that the accused is not guilty. Counsel for the respondents/accused submitted that the facts and circumstances involved and the evidence on record would show the falsity of the case of the complainant and the trial court is fully justified in its finding that the evidence shows that there was absolutely no borrowal of Rs.50,000/- from the complainant. 5. I have carefully considered the arguments advanced by CRL.A.NO.1815 OF 2004 :-4-: the counsel for the appellant and the respondents and the question to be considered is whether the trial court is justified in his finding on the basis of Exts.D1 and D2 documents connected with the civil case. 6. In this juncture, it is relevant to note that during the crossexamination of PW1, he had admitted that he had filed OS No.137/2001 and Ext.D2 judgment thereon. Ext.D1 is the copy of the deposition given by PW1 before the Munsiff Court in O.S.No.137 of 2001. The trial court has specifically found that as per Ext.D2 judgment, the civil court has found that the allegation that the respondents therein/the accused herein borrowed Rs.50,000/-, is absolutely false and the 'anannavellam kulirnnavellam' bridge was in fact executed by the complainant himself. When DW1 was examined, he has deposed that the accused is the convenor and chairman of the beneficiary Committee for the execution of the retaining wall and the complainant was the convenor of the work of construction of a culvert. It is also brought out in the evidence of DW1 that the work CRL.A.NO.1815 OF 2004 :-5-: was in fact executed by the complainant himself and when he tried to construct a retaining wall violating the estimate and including his property, the members of the beneficiary committee objected the same and consequently, the complainant had stopped the work. The above evidence of DW1 and Ext.D2 judgment and the finding in Ext.D2 judgment would show that the case of the complainant that the accused borrowed Rs.50,000/-, is absolutely false and incorrect. The trial court, in the light of the decision of the Apex Court reported in **Prem Shanker** v. **I.G.of Police** [2002(3) KLT 389 (SC)], admitted Ext.D2 judgment since the same is sufficient to satisfy the conditions stipulated in Sections 40 to 42 of the Indian Evidence Act and found against the appellant/the complainant. 7. In the light of the above facts and circumstances and discussions and according to me, the trial court is fully justified in acting upon and accepting Ext.D2 judgment of the civil court in which the cause of action and the parties are same in both the civil case as CRL.A.NO.1815 OF 2004 :-6-: well as the present case. Therefore, I find no reason to interfere with the above findings of the trial court and acquitting the accused. In the result, there is no merit in the appeal and the appeal is dismissed. **V.K.MOHANAN, Judge.** MBS/ CRL.A.NO.1815 OF 2004 :-7-: **V.K.MOHANAN, J** . CRL.A.No. 796 OF 2003 **JUDGMENT** ## CRL.A.NO.1815 OF 2004 **==> picture [21 x 9] intentionally omitted <==** Dated:4.10.2011