M.K. Thankappan v. K.S. Raveendran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934** **Crl.L.P..No. 709 of 2012 ()** **--------------------------AGAINST THE ORDER IN ST.1267/2009 of J.M.F.C., NEDUMKANDOM** **PETITIONER/COMPLAINANT:** **------------------------** **M.K.THANKAPPAN, AGED 69 YEARS S/O. KUTTY, NOORAMMAKKAL HOUSE, KALKOONTHAL VILLAGE NEDUMKANDOM KARA.** **BY ADV. SRI.LATHEESH SEBASTIAN** **RESPONDENT (S)/ACCUSED AND STATE: ---------------------------------** **1. K.S.RAVEENDRAN, AGED 35 YEARS PUTTUMANPURATHU VEEDU, PALAR KARA, ANAKKALU BHAGOM PARATHODU VILLAGE, UDUMBANCHOLA TALUK IDUKKI DT-685584.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 12-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.709 of 2012 ------------------------------Dated this the 12[th] day of December, 2012.** ## **O R D E R** The complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 27.9.2012 in S.T.No.1267 of 2009 of the court of the Judicial First Class Magistrate-Nedumkandom, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the complainant is that the accused borrowed an amount of `1,50,000/- from him and towards the discharge of the said liability, the accused executed and issued Ext.P1 cheque, which when presented for encashment, dishonoured for want of sufficient fund. During the trial of the case, the complainant himself was 2 ## **Crl.L.P.No.709 of 2012** got examined as PW1 and produced Exts.P1 to P6. From the side of the defence, DW1 was examined and Exts.D1 and D2 were marked. The learned Magistrate of the trial court, after having considered the entire evidence and materials, came into a conclusion that the complainant has failed to prove the execution of Ext.P1 cheque for a valid discharge. Thus, the presumption under section 139 of the NI Act is not available in favour of the complainant and consequently held that the prosecution has failed to prove that the accused has committed the offence under section 138 of the NI Act and accordingly the accused is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which leave of this Court is sought for. 3. I have heard Adv.Latheesh Sebastian, learned counsel for the petitioner and I have gone through the judgment sought to be impugned. 4. Learned counsel for the petitioner strenuously submitted that the sole reason for the acquittal recorded by 3 ## **Crl.L.P.No.709 of 2012** the learned Magistrate is that though the complainant has taken a contention to the effect that the amount was paid to the accused after withdrawing the amount from his account, the said fact found as incorrect as per the evidence of DW1 and Ext.D2, as there was no withdrawal on 15.7.2009, 16.7.2009 and on 20.7.2009. According to the learned counsel, the said finding of the court below is incorrect, since when the complainant was examined as PW1, he was at the age of 69 and during his deposition, he mistakenly said the date of withdrawal of the amount as 20.7.2009. Thus, according to the learned counsel, when the accused has admitted the signature in Ext.P1, the learned Magistrate ought to have convicted the accused by availing the presumption under section 139 of the NI Act, in favour of the complainant. Thus, according to the learned counsel, in case an appeal is entertained, there is every possibility to interfere with the findings of the court below and the order of acquittal recorded in favour of the accused. Therefore, according to the counsel, the petitioner is entitled to get the 4 ## **Crl.L.P.No.709 of 2012** leave as prayed for. 5. I am unable to sustain the above contention. The case of the complainant is that, the accused borrowed a sum of `1,50,000/- and towards the discharge of the said liability, the accused issued Ext.P1 cheque. Whereas, the case of the accused is that he had transaction with his brother, by which he borrowed a sum of `50,000/- and towards the said transaction, he had issued a cheque in blank form to him and though he had repaid an amount of `1,10,000/-, his brother did not return the documents due to difference of opinion and it is the said cheque, which misused by the complainant in filing the present complaint. 6. The trial court after considering the evidence and materials has found that, regarding the transaction, there is serious doubt, especially on two aspects. The trial court has found that, according to the complainant, he has advanced money to the accused by withdrawing the same from his bank account but the said claim is proved to be false in the light of Ext.D2 documents and the evidence of DW1 . The 5 ## **Crl.L.P.No.709 of 2012** trial court has further found that, to prove the case of the complainant as false, the accused examined DW1-the Manager of Federal Bank, Nedumkandom branch and produced Ext.D2, and thus as per the evidence of DW1 supported by Ext.D2, PW1 has not withdrawn the money from his bank on the dates, viz.,15.7.2009, 16.7.2009 and 20.7.2009. So the claim of the complainant that he had withdrawn the money from his account and paid the same to the accused appears to be false and contrary to the evidence on record. According to me, the falsity of the case of the complainant regarding the transaction has to be examined in the backdrop of the defence taken by the accused as to how Ext.P1 cheque reached in the hands of the complainant. According to the accused, the complainant become familiar to him only when he appeared before the court. Though the complainant has claimed that the accused was his friend, no evidence has been adduced to show that the friendship was so thick between the complainant and the accused so as to gave such a huge 6 ## **Crl.L.P.No.709 of 2012** amount to the accused without any security or record. Further it is also relevant to note that Ext.P1 cheque is a type written one. Admittedly, the complainant and the accused were persons engaged in business and no explanation has been given by the complainant to receive a type written cheque. According to me, the absence of any convincing explanation from the part of the complainant in receiving a type written cheque, in the afore said background is very relevant and the same are sufficient to probabilise the case of the defence that the cheque in question was the one which given in blank form to the brother of the accused connected with the transaction between them. It is under the above factual background, the learned Magistrate refused to accept the case of the complainant and according to me, the learned Magistrate is fully justified especially in the light of the decision reported in **Bhaskaran Nair V. Mohan (2009(2) KLT 897)** . The facts and circumstances involved in the case created reasonable doubt with respect to the transaction and the 7 ## **Crl.L.P.No.709 of 2012** execution of the cheque, which are not clarified by the complainant. Thus the findings of the court below, according to me, are supported by the evidence and materials on record and therefore it cannot be said that those findings are perverse or illegal. 7. 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 as follows:- “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 present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. 8 ## **Crl.L.P.No.709 of 2012** No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the presumption of innocence bolstered as per the judgment in question. 8. Therefore, I find no reason to grant special leave as prayed for, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge