IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934
CRL.A.No. 2513 of 2009
----------------------[AGAINST THE JUDGMENT DTD.27.1.2009 IN CC.1283/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,ERNAKULAM]
APPELLANT(S):
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M/S CAPITAL CREDIT SYNDICATE, COLLEGE ROAD, KOTHAMANGALAM, HAVING IT BRANCH OFFICE AT PONOTH ROAD, DESABIMANI JUNCTION, KALOOR COCHIN 682 017, REPRESENTED BY ITS MANAGER MANOJ KUMAR, AGED 31 YEARS, S/O. GOPALAKRISHNAN.
BY ADV. SRI.PEEYUS A.KOTTAM
RESPONDENTS(S):
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1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM COCHIN -03. 2. MAYA RAMACHANDRAN, PAVANAKOPARAMPU HOUSE, VALLUVALLY CENTRE, KOTTUVALLY KOORAMAVU P.O., NORTH PARAVOOR.
R1 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
14-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **V.K.MOHANAN, J.**
## **---------------------------------------Crl.A.No. 2513 of 2009**
**----------------------------------------** Dated this the 14[th] day of December, 2012
## **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 since it is aggrieved by the judgment dated 27.1.2009 in C.C.No.1283 of 2004 of the court of Judicial First Class Magistrate-I, Ernakulam by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
2. Heard the counsel for the appellant. I have perused the
judgment of the trial court impugned in this appeal.
3. The case of the complainant is that towards the amount due to the complainant from the accused, the accused issued Ext.P1 cheque dated 22.4.2004, which when presented for encashment, dishonoured for want of sufficient fund in the account of the accused and the accused has not paid the amount in spite of statutory notice and thus, the accused has committed the offence punishable under Section 138
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of the N.I.Act. During the trial, PW1 was examined from the side of the complainant and produced Exts.P1 to P6. The accused herself got examined as DW1. The trial court, after considering the entire facts and evidence on record, came to a conclusion that the complainant has failed to prove that an amount of `45,610/- was due from the accused to the complainant and the accused issued Ext.P1 cheque for discharge of the said liability. Based upon the above finding, the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged in this appeal.
4. I have heard Sri.Peeyus.A.Kottam, learned counsel for the
appellant and I have gone through the judgment of the trial court.
5. Learned counsel for the appellant submitted that in fact the accused has availed of a loan from the complainant and the said fact can be proved by producing the hire purchase agreement for which the counsel seeks an opportunity to produce the same before this Court or remand the matter to the trial court granting opportunity to produce
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such document. It is also the submission of the learned counsel that the accused has admitted the signature in Ext.P1 cheque and therefore, the execution is proved. Therefore, the counsel submitted that the trial court, overlooking the above facts and evidence, came to an erroneous conclusion and found the accused not guilty and acquitted her. Therefore, the judgment of the trial court is liable to be set aside and the accused is liable to be convicted.
6. I have carefully considered the arguments advanced by the learned counsel for the appellant and I have perused the judgment sought to be challenged.
7. In the light of the submission made by the counsel for the appellant and in the light of the findings of the court below, on the basis of the available evidence and materials, the question to be considered is whether the appellant has succeeded in making out any prima facie case in support of their challenge against the finding of the court below and whether the appellant has succeeded in making out any compelling or substantial reason to interfere with the order of
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acquittal recorded in favour of the accused.
8. The learned Magistrate has found that in the complaint and in the proof affidavit in lieu of chief examination, the complainant has not stated about the transaction in which the amounts are due from the accused to the complainant and there is only a vague statement that towards the due discharge of the legally enforceable debt of `45,610/-, the accused issued the cheque. The learned Magistrate has specifically found that during the cross-examination, PW1 has admitted that the accused and her husband jointly availed of a hire purchase facility of `1,71,000/- for a vehicle bearing Regn.No.KL7AE-3400, and the said hire purchase agreement and other documents of the hire purchase transaction are available in the office of the complainant, but the same are not produced. In the absence of any contemporary document or legal evidence to substantiate the case of the complainant, the trial court considered the case set up by the defence. According to the accused, who is a lady, she has no transaction with the complainant and she has not issued any cheque
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for discharging any liability. According to the accused, she has not issued any cheque and Ext.P1 is the signed blank cheque, obtained by her husband from her. When the accused denied the execution and issuance of the cheque, it is for the complainant to prove those facts beyond reasonable doubts. Thus, on examination of the evidence connected with the execution of cheque, it can be seen that as specifically found by the learned Magistrate, PW1 admitted during cross examination that he had not seen the accused issuing the cheque. The specific case of PW1, as found by the learned Magistrate, is that the cheque was entrusted by the accused with the field boy of the complainant. Suffice to say, the said boy is not examined as well. So, absolutely there is no evidence to prove the execution and issuance of the cheque by the accused. On a total consideration of the evidence and materials, it can be seen that the complainant has miserably failed to prove the actual transaction between the complainant and the accused and also failed to prove the execution and issuance of the cheque. The learned counsel for the appellant sought time to produce
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the hire purchase agreement and other connected documents or in the alternative, submitted that the matter may be remanded back to the trial court to enable the appellant to produce the same. It is relevant to note that in the impugned judgment, the learned Magistrate has already found that PW1 has admitted before the trial court that all those documents are available with the complainant. But, no reason is deposed for the non-production of such documents and nothing brought on record to show that the complainant was prevented or unable to produce those documents in time and at appropriate stage. If that be so, the appellant cannot be permitted to produce the same either in the appellate court or in the trial court so as to fill up the lacuna occurred in the prosecution case. Therefore, the said prayer of the appellant cannot be entertained.
9. From the above discussion and in the light of the evidence and materials referred to in the impugned judgment, it can be seen that the finding of the court below is supported by the evidence and materials on record and the findings cannot be treated as perverse or
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illegal so as to interfere with the appeal.
10. In a recent decision of the Apex Court reported in **State** v. **of Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme
72), the Hon'ble Apex Court has held as follows:-
“ _In cases where there are exceptional 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 appellant has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question.
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Therefore, I find no ground to allow the appeal, especially when the appellant miserably failed to make out a prima facie case in support of its challenge against the findings and order of acquittal recorded by the trial court.
In the result, this Criminal Appeal is dismissed.
**V.K.MOHANAN, Judge**
MBS/
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