Mathew K. Cherian v. Radhika Rani and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 16TH DAY OF AUGUST 2012/25TH SRAVANA 1934 CRL.A.No. 152 of 2009 (D) ------------------------- AGAINST THE ORDER/JUDGMENT IN CRLP.29/2009 DATED 14-01-2009 CC.602/2006 of J.M.F.C.-VI, TRIVANDRUM APPELLANT/PETITIONER/COMPLAINANT: ----------------------------------- MATHEW K.CHERIAN, KOSAMATTAM HOUSE, MANGANAM, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENTS/ACCUSED AND STATE: -------------------------------- 1. RADHIKA RANI, K.V.HOUSE, - KARAMANA POST, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.M.SANEER THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN,J.** ## **--------------------------------------------Crl.Appeal No.152 of 2009 ---------------------------------------------Dated this the 16[th] day of August, 2012** ## **JUDGMENT** The case of the complainant is that the accused borrowed a sum of Rupees Three lakhs from the complainant on 30/09/2005 and issued Ext.P2 cheque, towards the discharge of the said liability, which when presented for encashment, was dishonoured due to insufficient funds in the account of the accused and the accused has not repaid the amount in spite of a formal notice served on her. Therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. Whereas the defence taken by the accused is that she was a surety for one Sivakumar her son and Ext.P2 cheque was given as a security connected with the chitty transaction between the complainant and her son and thus she denied the transaction and the claim of the complainant. Crl.A.No.152/2009 2 2. During the trial of the case PW.1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence Exts.D1 and D2 were marked. DWs.1 and 2 were examined. The trial court after considering the entire materials and evidence came into a conclusion that Ext.P2 cheque is not supported by consideration and evidence of PW.1 is not sufficient to prove that Ext.P2 cheque is supported by consideration. Thus the learned Magistrate finally held that the evidences are insufficient to show that the accused borrowed Rs.3,00,000/- from the complainant or issued Ext.P2 cheque to discharge a legally enforceable debt. It is the above finding and order of acquittal sought to be challenged in this appeal. 3. I have heard Adv.Sri.M.J.Thomas, learned counsel for the appellant. 4. The learned counsel vehemently submitted that the evidence of PW.1 is sufficient to prove the transaction Crl.A.No.152/2009 3 and especially when the accused has admitted the transaction, the finding of the court below is incorrect. It is also the submission of the learned counsel that though the statutory notice was received by the accused, no reply was issued, denying the transaction or putting a case, as taken during the trial of the case. Thus according to the learned counsel on the basis of the available evidence on materials the trial court ought to have convicted the accused. But the trial court on an erroneous consideration of the evidence and materials, came into a wrong conclusion and acquitted the accused. 5. I have carefully considered the submission of the learned counsel for the appellant and I have gone through the judgment of the trial court. 6. In the light of the arguments advanced by the learned counsel for the appellant and in the light of the findings of the court below supported by the evidence and materials referred to in the judgment, the question to be Crl.A.No.152/2009 4 considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the judgment of the trial court and further the appellant succeeded in making out any exceptional or substantial reason so as to interfere with the order of acquittal recorded by the trial court. 7. Admittedly the complainant is a financier conducting chitty business. It is also beyond dispute that DW.2 the son of the accused is one of the subscribers of the chitty conducted by the appellant. The fact that the appellant is conducting chitty business and the fact that the son of the accused is one of the subscribers of the chitty conducted by the complainant brought to the notice of the court only when the accused put forward such a case and produced documents in support of such plea. Whereas the case of the complainant is that it was a simple transaction between the complainant and the accused. According to the complainant the accused is known to him for five years Crl.A.No.152/2009 5 and thus a sum of Rupees Three lakhs was given to the accused. Absolutely no document, other than Ext.P2 cheque, is produced by the complainant. The complainant being a financier and conducting chitty business, is expected to maintain records connected with the amount allegedly borrowed by the accused. But in the present case, except his claim that the accused is known to him for five years, no evidence or circumstances brought on record so as to convince the court that he had paid a sum of Rs.3,00,000/- to the accused without getting any security or document from the accused. Whereas the specific defence taken by the accused is that Ext.P2 cheque was given as a security to the complainant, connected with the chitty transaction between her son and the complainant. To substantiate the above facts the accused has adduced documentary evidence such as D1 and D2 and also examined Dws.1 and 2. In the light of the dictum laid down in the decision reported in **Narayana Menon** Vs. **State of** Crl.A.No.152/2009 6 **Kerala** [2006(3) KLT 404 (SC)] in order to discharge the burden of the accused under Section 139 of the N.I. Act, who faced prosecution under Section 138 of the Negotiable Instruments Act, the accused can press into service the evidence and circumstances even brought at the instance of the complainant. It is relevant to note that regarding the alleged transaction of giving loan of Rs.3,00,000/- to the accused, absolutely there is no reliable evidence from the part of the complainant and the evidence of PW.1 is not so convincing to hold that a sum of Rs.3,00,000/- was given to the accused without obtaining any security or document. But it can be seen that by adducing evidence from the side of the accused, the accused has succeeded in bringing out a probable case as to how Ext.P2 cheque reached in the hands of the complainant, whereas absolutely there is no evidence other than the interested version of PW.1 to prove the transaction. So according to me, the reasoning assigned by the learned Magistrate in support of his finding Crl.A.No.152/2009 7 that Ext.P1 cheque is not supported by consideration is correct. In the absence of any plea to the effect that the learned Magistrate has overlooked any evidence or material which available on record in favour of the complainant, according to me there is no scope for any interference with the finding of the court below. 8. 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 case and the evidence and materials which are referred to by the learned Magistrate in the judgment, Crl.A.No.152/2009 8 in the light of the above dictum laid down by the Apex Court, it can be seen that the appellant has failed to make out any exceptional or substantial reason to interfere with the order of acquittal and the appellant has also failed to show that the judgment of the trial court is perverse. If that be so, even if the appeal is entertained any further, there is no scope for any interference with the order of acquittal recorded in favour of the respondent. Therefore there is no merit in this appeal and accordingly the same is dismissed. ## **V.K.MOHANAN, JUDGE** skj