IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 23RD DAY OF JULY 2012/1ST SRAVANA 1934
CRL.A.No. 208 of 2008 ( ) -------------------------
(ST.1918/2005 of J.M.F.C.,KUNNAMANGALAM)
APPELLANT/COMPLAINANT:
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M.P.ABDULLAKUTTY, S/O.ABDURAHIMAN, AGED 38 YEARS, MADATHIL PARAMBA, P.O.MAVOOR KOZHIKODE DISTRICT.
BY ADV. DR.K.B.MUHAMED KUTTY (SR.)
RESPONDENTS/RESPONDENTS/ACCUSED/STATE:
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1. AJAY KUMAR, S/O.BHASKARA PILLA, AGED 36 YEARS, KALLARA VEEDU, BHAGAVATHIPURAM KUTHIRAKKULAM P.O., VELLANAD, THIRUVANANTHAPURAM.
2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA.
R1 BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR R2 BY PUBLIC PROSECUTOR SRI P.M. SANEER
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **V.K.MOHANAN, J.**
**---------------------------------------Crl.A No. 208 of 2008 ----------------------------------------** Dated the 23[rd] day of July, 2012
## **JUDGMENT**
The complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act is the appellant herein as he is aggrieved by the judgment dated 27.9.2006 in S.T.No.1918 of 2005 of the court of Judicial First Class Magistrate, Kunnamangalm, by which the learned Magistrate acquitted the accused under section 255(1) Cr.P.C.
2. Heard the counsel for the appellant. Though notice was served on the Ist respondent, no body has turned up.
3. The case of the complainant is that the accused borrowed Rs.70,000/- on 10.2.2005, from the complainant and it was agreed to repay the amount within two months . According to the complainant, though the accused has not kept his promise in time, subsequently issued four cheques for a total sum of Rs.70,000/-, which are marked as Ext.P1 series, and when the said cheques presented for encashment, the same were
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dishonoured for want of sufficient funds in the account and though notice was served on the respondent, demanding payment of the amount covered by the dishonoured cheques, no payment was made and thus , according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, the complainant himself was examined as PW1 and marked Exts.P1 to P5. No evidence is adduced from the side of the defence. The learned Magistrate, after an elaborate consideration of the entire evidence and materials, came into a conclusion that the complainant has failed to prove the pre-requisites to draw a presumption as provided under section 139 of the NI Act. It was further held that the complainant has failed to prove that Ext.P1 series cheques were issued by the accused to the complainant in discharge of a legally enforceable debt or liability. On the basis of the above finding, the accused is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.
4. The learned counsel for the appellant vehemently submitted that the accused has admitted the transaction and the
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issuance of the cheques, but the learned Magistrate on flimsy grounds refused to accept the case of the complainant stating that the execution is not proved. According to the learned counsel, since Ext.P1 series cheques contained signature of the accused, and especially the accused has admitted the issuance of the cheque, the finding of the court below is incorrect and therefore the order of acquittal is liable to be set aside.
5. I have carefully considered the submissions of the learned counsel for the appellant and I have perused the judgment of the trial court as well as the evidence and materials produced. In the light of the arguments advanced by the counsel for the appellant and in the light of the evidence and materials on record, the question to considered is whether the trial court is justified in its finding and acquitting the accused and the further question to be considered is whether the appellant has succeeded in making out any case so as to interfere with the order of acquittal recorded in favour of the accused. It is relevant to note that the specific case advanced by the defence is to the effect that Ext.P1 series of cheques were issued as security connected with the transaction
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between the complainant and the accused and, liability connected therewith on such transaction is cleared off. It is the further case of the accused that, when the accused was not prepared to consider the demand of the complainant for interest, the complainant misusing the cheques which are given as security, filed the present complaint. The entire case of the complainant and the evidence on record has to be scrutinized in the backdrop of the above defence of the accused. It is relevant to note that the case of the complainant, particularly, in the complaint and in the chief affidavit is that , on 10.2.2005 the accused, who is hailing from Bhagavathipuram, Kuthirakkulam P.O, Vellanad, Thiruvananthapuram, approached the complainant at Calicut on 10.2.2005 and borrowed a sum of Rs.70,000/-. It is the further case of the complainant that, after two months, when the complainant demanded the amount, again the accused approached the shop of the complainant at Calicut and issued Ext.P1 series cheques. The learned Magistrate has specifically found that, during the cross examination of PW1, he had changed his version and deposed that the accused issued Ext.P1 series cheques during the month
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of September 2005. It is also stated that the accused issued all the four cheques at a time and that too at the time of borrowal of the money itself. Thus, the trial court has found that, regarding the borrowal of the amount and the issuance of the cheques, the complainant has no consistent case, but three versions. Among the above three versions, one version of the complainant is partly supporting the case of the defence to the effect that the cheques were given as security. It is also relevant to note that , besides the divergent and inconsistent versions of the complainant regarding the borrowal and issuance of the cheques, it is to be noted that the complainant has miserably failed to explain as to why he had received four cheques with different dates for an amount of Rs.70,000/-. No explanation is forthcoming in this regard. If the transaction claimed by the complainant is true, nothing prevented him, unless a specific explanation is forthcoming, in receiving one cheque from the accused, towards the so called debt, either at the time of the alleged borrowal of the amount or on the date or at the place which the cheques allegedly given. So regarding the transaction and the liability and the execution of the cheques
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in question, there is no believable and acceptable evidence. Thus, according to me, the finding of the court below that, the complainant has miserably failed to prove the requisites to draw presumption under section 139 NI Act and to prove that Ext.P1 cheques were sustained by the accused to discharge a legally enforceable debt or liability, according to me , is correct and those findings are based upon evidence and materials on record. The appellant has miserably failed to make out a case that the trial court has overlooked any materials or evidence which is in favour of the complainant. The Apex court, in the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The Apex court has held:
“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.”
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Thus, on an examination of the facts and circumstances and the evidence involved in the present case, in the light of the dictum laid down by the Apex court in the above decision, I am of the view that the appellant has miserably failed to make out any exceptional case or compelling reasons to interfere with the order of acquittal or to show that the judgment of the trial court is perverse. Therefore, this appeal fails as the same is devoid of any merit.
In the result, this appeal is dismissed.
**V.K.MOHANAN, JUDGE**
**kvm/-**
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