M/S SREE GOKULAM CHIT & FINANCE CO.PVT LTD. v. HUSSAIN O. and STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934 CRL.A.No. 2876 of 2008 ---------------------AGAINST THE JUDGMENT IN CC.121/2007 of CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA] APPELLANT(S)/PETITIONER/COMPLAINANT: ----------------------------------- M/S.SREE GOKULAM CHIT & FINANCE CO.PVT LTD. REPRESENTED BY ITS AUTHORIZED AGENT T.R.KRISHNAN KUNJU, S/O.THYAGARAJA PANICKER, AGED 38 YEARS, LEGAL CLERK, KOLLAM DIVISION, COMMERCIAL SHOPPING COMPLEX, BISHOP JEROME NAGAR, CHINNAKKADA, KOLLAM. BY ADV. SRI.K.N.VENUGOPALA PANICKER RESPONDENTS(S)/ACCUSED AND STATE: --------------------------------- 1. HUSSAIN.O., S/O.UMMERKUTTY, KALIYIKKAL PUTHAN VEEDU, CHERAVALLY, KAYAMKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02-04- 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 2876 of 2008** **----------------------------------------** Dated this the 2[nd] day of April, 2012 ## **J U D G M E N T** The complainant/company 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 he is aggrieved by the order of acquittal recorded by the trial court under Section 255 (1) of the Code of Criminal Procedure. 2. The case of the complainant is that the accused is a subscriber to the chitty conducted by the complainant and the chitty amount was Rs.2 lakhs and the accused participated in the auction and availed the amount and an amount of Rs.54,656/- was due to the complainant and the accused issued a cheque for the said amount and when the said cheque was presented for encashment, it was dishonoured for want of sufficient fund and the accused has not paid the dishonoured cheque amount in spite of statutory notice and thus, the accused has committed the offence punishable under Section 138 ## CRL.A.NO.2876 of 2008 :-2-: of the N.I.Act. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P7. The trial court, after considering the entire evidence and materials, came to a conclusion that the complainant has failed to produce sufficient evidence to prove the execution. In support of the above finding, the learned Chief Judicial Magistrate placed reliance upon the decision of v. this Court reported in **G.Gopan Tony Varghese** [2008(1) KLJ 152]. It is the above finding and order of acquittal challenged in this appeal. 3. Advocate Sri.K.N.Venugopala Panicker, learned counsel for the appellant submitted that the accused has not issued any reply to the notice issued by the complainant in terms of the proviso to Section 138 of the N.I.Act. It is also the submission of the learned counsel that when PW1 was examined, there was not even a suggestion from the side of the accused to the effect that the cheque in question was one given in blank form to the complainant and according to the learned counsel, the absence of any such suggestion is very material CRL.A.NO.2876 of 2008 :-3-: especially, the accused admitted the transaction including the fact that he had availed of the chitty amount from the complainant and he had also paid a sum of Rs.1500/- after the institution of the case. Thus, according to the learned counsel, the finding of the court below is not correct and it is illegal. 4. I am unable to sustain the above contentions in the light of the above facts and circumstances involved in the case and in view of the finding of the court below. In the impugned judgment, especially in paragraph 7, the learned Magistrate has found that in paragraph 2 of the complaint, it is the case of the complainant that the accused along with surety executed promissory note and agreement in favour of the complainant. But, the complainant did not produce those documents in spite of a direction issued in this regard. Further, in paragraph 9 of the judgment, the learned Magistrate has found that though the accused raised a contention that he did not execute Ext.P1 cheque to discharge the liability, it is the further case of the accused that he had executed a promissory note and agreement and also issued blank CRL.A.NO.2876 of 2008 :-4-: cheques in favour of the complainant. The trial court has also found that the complainant did not produce any document like the ledger, agreement and promissory note in spite of the time granted by the court below. Therefore, the learned Magistrate is of the opinion that it was doubtful whether the accused has executed Ext.P1 cheque as alleged in the complaint. After the scrutiny of the evidence on record, the trial court has found that there is no evidence to prove the contention of the complainant that the accused has executed and issued Ext.P1 cheque. The above findings of the court below are supported by the evidence and materials on record. The learned counsel for the appellant submitted that when the accused admitted the transaction and the liability and when Ext.P1 cheque is produced by the complainant, the learned Magistrate of the trial court is wrong in his finding. It is the admitted case of the accused that he is a chitty subscriber and according to him, during such transaction, the complainant has obtained blank cheques as well as promissory note and also an agreement which was entered into between the ## CRL.A.NO.2876 of 2008 :-5-: complainant and the accused. On the basis of the above documents, the specific contention of the accused is that the liability whatsoever is governed by the agreement and the pro-note and he had not executed Ext.P1 cheque as claimed by the complainant. In the light of the v. decision reported in **G.Gopan Tony Varghese** [2008(1) KLJ 152], the complainant has to prove with sufficient materials and evidence that the cheque in question was executed by the accused in a prosecution for the offence under Section 138 of the N.I.Act and then only, the complainant is entitled to get a presumption as envisaged by Section 139 of the N.I.Act. In **Krishna Janardhan Bhat** v. **Dettatraya Hegde** [2008(1) KLT 425], the Honourable Apex Court has held that to discharge the burden of rebutting the presumption and to make out a probable case in this regard, the accused need not mount to the box or need not produce any evidence, but he can discharge that duty on the basis of the evidence of the complainant and on the circumstances involved in the case. In the present case, it can be seen that the complainant has miserably failed to prove the execution and CRL.A.NO.2876 of 2008 :-6-: issuance of the cheque. The mere presence of the signature in Ext.P1 cheque is not sufficient to hold that the cheque in question was executed and issued by the accused. The specific case of the accused is that at the time of transaction, blank signed cheques were obtained by the complainant. If that be so, it is incumbent upon the complainant to prove the execution of the cheque in question by adducing convincing evidence. But, in the present case, there is no evidence to that effect. Further, the complainant has also failed to produce the document to prove the liability of the accused connected with the transaction. The specific case of the complainant is that when the accused defaulted in paying the chitty amount by instalments, the same was settled by issuing Ext.P1 cheque. But, no document is produced to show that the accused was informed that such and such amounts are due and demanded to pay such amount. In the absence of any such document, I am unable to understand as to how the accused came to know about the liability for the purpose of issuing Ext.P1 cheque as claimed by the complainant. The absence of CRL.A.NO.2876 of 2008 :-7-: any such document informing the accused about the total amount due and the failure of the complainant to produce the admitted documents like pro-note and agreement on the ledger probabilise the case of the accused that Ext.P1 is one among the blank signed cheques obtained by the complainant at the time of the transaction. In the light of the above facts and circumstances, according to me, the appellant has miserably failed to make out a prima facie case so as to interfere with the finding of the court below and the order of acquittal. Going by the impugned judgment, it can be seen that the learned Magistrate arrived into his findings on the basis of the materials and evidence referred to therein and thus, it cannot be said that the finding of the court below is perverse or illegal. If that be so, I find no reason to interfere with the finding, especially the order of acquittal. Accordingly, the appeal fails and is dismissed. **V.K.MOHANAN, Judge** MBS/ CRL.A.NO.2876 of 2008 :-8-: **V.K.MOHANAN, J** . CRL.A.No. OF 2003 CRL.A.NO.2876 of 2008 :-9-: ## **JUDGMENT** Dated:.2012