M.C. George v. K.C. Joseph and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 16TH DAY OF JANUARY 2013/26TH POUSHA 1934 CRL.A.No. 2345 of 2009 ( ) -------------------------- AGAINST THE JUDGMENT IN CC.209/2009 DATED 13-08-2009 OF THE COURT OF CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA ------------------------------------------ PETITIONER/COMPLAINANT ----------------------- M.C.GEORGE, S/O.CHACKO, "SRUTHY",KALARKODU WARD,AMBALAPUZHA TALUK ALAPPUZHA DISTRICT. BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW RESPONDENT(S)/ACCUSED AND STATE: ------------------------------- 1. K.C.JOSEPH, S/O.CHACKO, AGED 73,KALATHIL VEEDU,OPP. THE HOUSE OF THAIPARAMBIL THOMAS,CHETHIPUZHA,KURISUMUKKU P.O. CHANGANACHERY. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SMT.S.HIMA-R2 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR, J. ========================== CRL.APPEAL. No.2345 OF 2009 ==========================** Dated this the 16[th ] day of January, 2013 ## **JUDGMENT** This appeal is directed against the judgment of acquittal dated 13.8.2008 in C.C.No.209 of 2009 passed by the Court of the Chief Judicial Magistrate, Alappuzha on the complainant filed by the appellant against the first respondent herein alleging commission of offence under section 138 of the Negotiable Instruments Act. The trial court found that the appellant had failed to prove the offence against the accused and consequently held him not guilty and acquitted him under section 255(1) of the Code of Criminal Procedure. 2. The case of the appellant/complainant is as follows:The first respondent/accused borrowed an amount of **Crl.A.2345/09** 2 Rs.98,000/- from him and in discharge of the said legally enforceable debt, Ext.P1 cheque drawn on the Federal Bank Limited, Alappuzha was issued by the first respondent. On its presentation for encashment, the same got dishonoured on the ground of insufficiency of funds. A demand notice was issued to the first respondent within the statutorily prescribed period. However, the first respondent failed to pay the amount covered by the said cheque within the prescribed period. 3. the the first Obviously, to prove charge against respondent, the appellant got examined as PW1 and Exts.P1 to P5 were marked. On closing the complainant's evidence, the accused was examined under section 313 of the Code of Criminal Procedure. He denied all the incriminating circumstances put to him. Finding that it is not a fit case for acquittal, the appellant was called upon to enter his evidence and thereupon he examined one Ouseph as DW1 and got marked Ext.D1. After careful evaluation of the evidence on record, the **Crl.A.2345/09** 3 trial court found that the appellant had failed to prove conclusively the offence alleged against the first respondent/accused. Consequently, the first respondent was found not guilty and he was acquitted under section 255(1) Cr.P.C. 4. The contentions of the appellant is that the court below had blindly believed the version of the accused without any corroboration and that there was no reason to hold that the petitioner is not entitled to the presumption available under section 139 of the Act. The evidence of DW1 ought not to have been believed as he is an interesting witness besides being inimical to the appellant. It is also contended that the findings of the court below that the appellant herein had failed to prove the original transaction is not true to facts. The appellant who was examined as PW1 deposed that on 4.5.2007, the first respondent/accused borrowed Rs.98,000/- from him and Ext.P1 post dated cheque drawn on Federal Bank Limited, Alappuzha for the said amount was issued. He deposed in tune with the averments made in **Crl.A.2345/09** 4 the complaint. Evidently, the first respondent/accused denied the execution of Ext.P1 cheque. With respect to the source of fund, the case of the appellant revealed from his evidence, is that he had withdrawn an amount of Rs.50,000/- from his account on 31.8.2006. Admittedly, the said amount was withdrawn 9 months prior to the alleged date of lending. It cannot be presumed that in anticipation of a future requirement of the accused he had withdrawn an amount of Rs.50,000/- from his account and kept it with him. There is absolutely no explanation as to how the balance amount was raised. That apart, more importantly, the appellant did not have a case that he had actually seen the execution of Ext.P1 cheque. In such a case, the appellant had to prove the execution of Ext.P1 cheque by resorting to the recognized methods as provided under law in view of the denial of execution by the first respondent/accused. In the said circumstances, evidently, he attempted to let in evidence regarding the original transaction. **Crl.A.2345/09** 5 5. In the decision reported in **Krishna Janardhan Bhat v. Dattatraya G. Hegde [(2008) 2 SCC (Crl.) 166]** , the Hon'ble Supreme Court held that there can be no presumption as to execution of a cheque under section 139 of the NI Act and the presumption which is possible is only with respect to the consideration and that presumption could be raised only when due execution of the cheque is proved. As already held, the appellant had no case that he had seen the execution of Ext.P1 cheque. He had not examined any person who witnessed such execution and also had failed to bring in an expert opinion, in terms of the provisions under section 67 of the Evidence Act, to prove the execution. In such circumstances, the appellant had to let in evidence regarding the original transaction. I have already adverted to the case of the appellant regarding the transaction. The case of the appellant is that he had withdrawn an amount of Rs.50,000/- nine months prior to the date of alleged lending and kept it with him. The standard of proof required on the part of the accused and that of the prosecution have also been dealt with by the **Crl.A.2345/09** 6 Hon'ble Supreme Court in **Krishna Janardhan Bhat's** case (supra). It was held that prosecution must prove the guilt of an accused beyond all reasonable doubt and the standard of proof required on the part of an accused is “preponderance of probabilities”. Going by the said decision, inference of preponderance of probabilities could be drawn not only from the materials brought on record by the parties but also by referring to the circumstances upon which the accused relies. In regard to the aforesaid factual details elaborately discussed in the judgment of the court below, no dispute has been raised. In this case, considering the case put forth by the accused and the appellant and on a careful evaluation of the evidence on record, the court below found that the first respondent had made out a probable case and the appellant had failed to prove the original transaction as stated in the complaint as also the execution of Ext.P1 cheque. In view of the facts and circumstances and the indisputable and undisputed evidence obtained as above, the said finding of the court below cannot be said to be palpably wrong. The appellant has failed to make out a case so **Crl.A.2345/09** 7 as to invite an appellate interference. In the circumstances expatiated above, it cannot be said that the judgment of the trial court is perverse or against the weight of evidence. In such circumstances, it can only be held that the appellant has failed to make out a prima facie case for appellate interference. This appeal is, therefore, liable to fail and accordingly, it is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **Crl.A.2345/09** 8 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** # **Crl.A.2345/09** 9