## IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 7TH DAY OF AUGUST 2012/16TH SRAVANA 1934
## CRL.A.No. 360 of 2009 (D)
------------------------AGAINST THE ORDER/JUDGMENT IN CRLP.123/2009 DATED 11-02-2009
ST.1861/2006 of J.M.F.C.-I,KOTTAYAM
## APPELLANTS/PETITIONER/COMPLAINANT:
-----------------------------------
M/S.MALANKARA PLANTATIONS LIMITED, MALANKARA BUILDINGS, KODIMATHA, KOTTAYAM -686001. REPRESENTED BY SRI.PUNOOSE P.GEORGE
BY ADVS.SRI.JOSEPH KODIANTHARA
SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH
## RESPONDENTS:
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1. S.ABDUL SAMAD, PROPRIETOR, SAS ENTERPRISES, CHARTHOOR PANAYIL VEEDU, TRIPPILAZHIKOM.P.O., KUNDARA, KOLLAM DISTRICT.
## CRL.A.No. 360 of 2009 (D)
2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
## BY ADV. SRI.GEORGE SEBASTIAN – FOR R1
PUBLIC PROSECUTOR SRI.P.M.SANEER- FOR R2
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **V.K.MOHANAN, J. ------------------------------------Crl.A.No.360 of 2009 --------------------------------------Dated this the 07[th] day of August, 2012**
## **JUDGMENT**
The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as it is aggrieved by the order dated 31/10/2008 in S.T.No.1861 of 2006 of the court of the Judicial Magistrate of the First Class-I, Kottayam by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
2. The case of the complainant is that the accused is a distributor of packeted tea, a product of the complainant company, from its plantation and an amount of Rs.56,341/- was due to the company from the accused connected with the above transaction and towards the discharge of the said liability the accused issued Ext.P2 cheque dated 03/01/2006 for Rs.56,341/- which when
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presented for encashment dishonoured due to “insufficiency of fund” in the account maintained by the accused and though a notice was served on the accused demanding the dishonoured cheque amount, no payment was made and therefore the accused has committed offences punishable under Section 138 of the N.I. Act. During the trial of the case PW.1 was examined at the side of the complainant and Exts.P1 to P10 were marked. Though no witness was examined, D1 was marked from the side of the defence. The trial court finally found that the complainant could not prove the case against the accused beyond reasonable doubt and accordingly found that the accused is not guilty and thus he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.
3. Heard Adv.Sri.Joseph Kodianthara, learned counsel for the appellant and Sri.George Sebastian, learned counsel for the first respondent. I have also perused the judgment of the trial court.
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4. The learned counsel for the appellant vehemently submitted that the trial court is wrong in its finding and accepting the case of the defence that cheque was given as a security. It is the submission of the learned counsel for the appellant that the accused volunteered to contact the office of the complainant by bringing a filled up cheque and signed on it before PW.1 and handed over the same towards the discharge of the liability. But the learned Magistrate, though there is no evidence to show that Ext.P2 cheque was given as a security, proceeded to accept the case of defence and erroneously held the complainant could not prove the case against the accused beyond reasonable doubt. On the other hand the counsel for the respondent submitted that the complainant has miserably failed to prove the due execution of Ext.P2 cheque and therefore the learned Magistrate is correct in its finding and therefore no interference is warranted.
5. I have carefully considered the submission of the learned counsel for the appellant and the learned
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counsel for the respondent and I have perused the judgment of the trial court.
6. In the light of the rival contentions advanced by the counsel for the appellant as well as the counsel for the respondent and in the light of the findings of the court below on the basis of the evidence and materials referred to in the impugned judgment, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of its challenge against the judgment impugned in this appeal and whether the appellant has succeeded in making out any exceptional or substantial reason so as to interfere with the order of acquittal recorded in favour of the accused. It is beyond dispute that the accused was a distributor of the complainant company and they had frequent transactions. As per the evidence of PW.1 the last transaction was on 31/05/2005. According to the complainant an amount of Rs.56,341/- was due from the accused to the complainant and therefore towards the discharge of the liability the accused issued Ext.P2
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cheque. But the case of the defence is that Ext.P2 cheque is the one which handed over to the complainant as security in blank form, when he was appointed as the distributor for the complainant company. According to him he never executed and issued the cheque to the complainant as claimed by it. The learned Magistrate after going through the evidence of materials on record has found that it is unbelievable that the accused brought a filled up cheque and the complainant has received the same since no ordinary person is expected to receive a cheque which not filled up before him unless there are some circumstances warrant such a transaction. According to me, the above approach or finding of the learned Magistrate cannot be treated as perverse.
7. In the present case it can be seen that even according to the complainant the last transaction as per Bill No.243 was on 31/05/2005. Ext.P2 cheque is dated 03/01/2006. There is a long gap of six months between the date of last transaction and date of Ext.P2 cheque. There is no material or evidence to show that after the
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last transaction the complainant approached or demanded the accused to clear the liability of Rs.56,341/-. If that be so it is quite unbelievable that the accused approached the complainant on the fine morning of 03/01/2006 and brought a filled up cheque showing the amount as Rs.56,341/-. In this juncture, it is also relevant to note the complainant has no case that the accused is an illiterate man to bring a filled up cheque. It is to be noted that the learned Magistrate has found that PW.1 during the cross-examination has stated that the cheque had been given after the accused got convinced about the outstanding balance from the office of the complainant. The above claim of PW.1 worsened the case of the complainant. As I stated earlier no material or evidence to show that the accused was demanded to discharge the liability, if any, and there is also no evidence to show that the accused contacted the office and verified the records so as to ascertain the outstanding balance amount. It is also relevant to note that if the accused has ascertained the amount from the office of the complainant, there is no
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question of bringing a filled up cheque and signing it in front of PW.1 or any other officials of complainant company. With respect to these aspects there is no convincing explanation supported by any evidence. Therefore it appears that the learned Magistrate refused to accept the case of the complainant on the basis of the available evidence and materials and assigning proper reasons.
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 the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The 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.”
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Thus, on examination of the facts and circumstances involved in the present case, in the light of the dictum laid down by the Apex Court in the decision cited supra, I find no ground to interfere with the order of acquittal recorded by the trial court. From the foregone discussions it can be seen that the impugned judgment cannot be treated as a perverse one. Therefore according to me the complainant has miserably failed to make out a prima facie case in support of its challenge against the judgment impugned. Hence there is no merit in this appeal.
In the result, this appeal is dismissed.
## **V.K.MOHANAN, JUDGE**
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