N. Rajendran Nair v. Lekha & Another

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934 ## CRL.A.No. 280 of 2008 ------------------------------------- (ST.1819/2005 of J.M.F.C.-III, NEDUMANGAD) APPELLANT/COMPLAINANT:: ------------------------------------ N. RAJENDRAN NAIR AGED 40 YEARS, ESWARA VILASOM, CHEERANIKKARA CHEERANIKKARA P.O., NEDUMANGAD. BY ADV. SRI.R.S.KALKURA ## RESPONDENTS/RESPONDENTS/ACCUSED:: ----------------------------------- 1. LEKHA& ANOTHER MUKKOLAKKAL VEEDU, MELETHEKKADA, POOVATHOOR P.O. NEDUMANGAD. 2. STATE OF KERALA, REPRESENTED BY - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.SREEKANTH S.NAIR` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A No.280 of 2008 ----------------------------------------** Dated the 9th 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 25.6.2007 in S.T.No. 1819 of 2005 of the court of Judicial First Class Magistrate-III, Nedumangad, by which the learned Magistrate acquitted the accused under section 255(1) Cr.P.C. 2. The case of the complainant is that , the accused borrowed a sum of Rs. 1,34,116/- from the complainant agreeing to repay the same within one month, and when the amount was demanded back, the accused issued Ext.P1 cheque dated 10.1.2005, which when presented for encashment, dishonoured as there was no sufficient fund in the account of the accused and though the accused was demanded by issuing a statutory notice to pay off the amount covered by the dishonoured cheque, no payment was effected and therefore, the accused has committed the offence punishable under section 138 of the NI CRL.A.280/08 ## **:-2-:** Act. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P12 documents. The accused and her brother were examined respectively as DW1 and DW2. The accused has also produced Exts.D1 to D6 documents. Exts.C1 and C2 are the court exhibits marked. The trial court, after considering the entire evidence and materials , found that the complainant failed to establish that the accused has committed the offence punishable under section 138 of the NI Act. In support of the above finding, the learned Magistrate has specifically found that, the basic case of the complainant is that, the accused has borrowed Rs.1,34,116/-, is unbelievable and the accused has succeeded in creating a doubt in the complainant's case. It is also found that the evidence of DWs 1 and 2 that it was DW2 who had given the signed blank cheques to the complainant, when the accused was in hospital, appears to be more probable. It was also found that the complainant has miserably failed to prove that the complainant has complied with the service of notice as contemplated under section 138 (b) of the NI Act. It is on the basis of the above specific finding, the trial court acquitted the accused under section 255(1) Cr.P.C. CRL.A.280/08 **:-3-:** 3. I have heard Sri M.S.Kalesh, the learned counsel appearing for the appellant. 4. The learned counsel for the appellant vehemently submitted that the learned Magistrate overlooking the evidence and materials available on record, including Ext.P1 cheque which executed and issued by the accused, came into a wrong conclusion that Ext.P1 cheque was not issued by the accused to the complainant towards the discharge of any liability. It is also the specific submission of the learned counsel that, the available evidence including documentary evidence proved that the accused was residing in the address shown in Ext.P6 to which address, the statutory notice was sent. But the learned Magistrate held that the complainant failed to prove the compliance as required under Section 138(b) of the NI Act. 5. I have carefully considered the submission of the learned counsel for the appellant. I have also gone through the judgment impugned, and the evidence and materials on record. 6. The crux of the allegation in the complaint is that, the accused who is a lady, borrowed an amount of Rs.1,34,116/from the complainant and on demand towards the discharge of CRL.A.280/08 **:-4-:** the said liability, the accused issued Ext.P1 cheque. Whereas the defence advanced by the accused is to the effect that, absolutely, there was no transaction between the complainant and the accused and she never executed and issued Ext.P1 cheque in favour of the complainant as claimed by him. According to the defence, the brother of the accused had transactions with various persons and he was indebted to them and while the accused was hospitalised connected with her delivery, certain persons had trespassed into her parental house and taken away valuable goods, materials, gold and cheque book etc., and Ext.P1 cheque is one among such cheque leaves. The matter was hotely contested in the trial court. In the light of the contentions advanced by the counsel for the appellant/complainant and the accused, and in the light of the materials and evidence on record, the question to be considered is whether the appellant has succeeded in making out a case so as to interfere with the findings of the learned Magistrate and the order of acquittal recorded by the learned Magistrate in favour of the accused. 7. In the complaint, the case of the complainant is that the complainant and the accused are known each other and the CRL.A.280/08 ## **:-5-:** accused borrowed an amount of Rs.1,34,116/- and when demanded back the said amount, the accused issued a cheque dated 10.1.2005. No other details are given with respect to the transaction. But when the appellant was cross examined, it can be seen that his version and claim is that , though he knows the accused, but in an unequivocal terms , PW1 has stated that, his acquaintance with the accused is through the brother of the accused. He had also stated that the brother of the accused has no particular job and the complainant does not know the brother's work. But interestingly, PW1 has also stated that he knows the brother of the accused for the last 7 - 8 years. In this juncture, it is relevant to note that the accused is a married woman and thus her husband and the brother were available but still then the evidence of PW1 is not satisfactory and the same is not explained as to why the accused, who is a lady, obtained money from the complainant. Further it is stated that, the money was given from his house. He was told that the money was borrowed for depositing in the bank towards the repayment of bank loan and he did not ask in which bank she deposited the amount. He does not know about the rubber business of the brother of the accused. The CRL.A.280/08 **:-6-:** complainant has also deposed that he does not know the name of the husband of the accused and he is also not aware of the children of the accused. He has also admitted that he does not know the name of the father of the accused. It is also admitted by the complainant that he does not know when was the marriage of the accused. In this juncture it is relevant to note that, if the claim of the complainant is admitted, I have to hold that the complainant released an amount of Rs.1, 34,116/- to a person with whom he has no close acquaintance, without any security. Though the complainant has also admitted that the acquaintance with the accused is through the brother of the accused, he does not know any details with respect to the brother of the accused as well. Even though no details are given in the complaint, during cross examination, he had deposed that the money was demanded on 18.11.2004 and gave on 21.11.2004. It is also relevant to note that, no document or security was obtained by the complainant from the accused with whom the complainant has not much acquaintance. He had also admitted that the money was accepted by the accused and her brother. According to the complainant, cheque was given on 9.1.2005. During cross CRL.A.280/08 ## **:-7-:** examination, he made an attempt to explain as to how the amount that contained in Ext.P1 cheque was due from the accused, i.e., Rs.1,34,000/- was borrowed by the accused and Rs.116/- was given as taxi fare. But no such averment and details are given either in the complaint or in the demand notice. The complainant denied several questions suggested by the accused as part of their defence. During the cross examination, of the complainant, he has admitted: “ എന�യ�� പ�ത�യ�ന� സഹ��ദരന�യ�� പ�ത�യ�ക� ഈ ഹ�സ�ന� പ�ത� police station ല �ര�ത� ന����തത�ന� ത��ര�� police station ല വ�ള�പ�ച�ര���.” He had also denied the suggestion of the defence that he had agreed to withdraw the case on condition of repayment of the amount by the brother of the accused. So regarding the transaction and execution of the cheque, there is no independent evidence or documentary evidence on record. On a careful analysis of the evidence of PW1, according to me, his version and claim regrading the alleged loan availed by the accused cannot be believed. The complainant miserably failed to prove the transaction and the liability thereon on the accused who is a lady. The acquaintance claimed by the CRL.A.280/08 ## **:-8-:** complainant with the accused appears to be unbelievable and his evidence in this regard is unsatisfactory and unacceptable. Though the complainant has stated that the acquaintance with the accused is through the brother of the accused, the acquaintance claimed by the complainant with the accused, in the light of the given facts and circumstances , according me , is not so deep so as to release the amount of Rs.1,34,116/- to the accused without any security or document. So the complainant has miserably failed to prove the transaction and the liability. 8. It is also relevant to consider the defence set up by the accused at this juncture. I have also stated the defence of the accused and her explanation as to how Ext.P1 cheque reached in the hands of the complainant. The complainant during his cross examination, though tried to improve his case, which is not stated in the complaint, he had admitted that, on the basis of the complaint preferred by the accused, he was summoned to Vattapara police station. So considering the entire facts and circumstances involved in this case, especially in the light of the specific defence taken by the accused, I am of the view that the learned Magistrate is correct CRL.A.280/08 **:-9-:** in his finding and observation that the accused has succeeded in creating doubt regarding the veracity of the complainant's case. The facts and circumstances involved in this case, according to me, positively establishes the probability of the case of the defence. 9. It is also relevant to note that the trial court has also found that the complainant miserably failed to prove that statutory notice was served on the accused. The specific contention raised by the accused in this regard is that, after the delivery , the accused had been residing at her permanent address at Vithura. She came to Saji Vilasam and resided there connected with the delivery. The defence exhibits justifies the version of the accused. Exts.D4 and D5 shows that she was permanently resided at Vithura and Ext.P6 would show that she had given a complaint before the Distrait Collector and the other authorities with the address Saji Vilasam house where she had resided temporarily. It is also relevant to note that Ext.D4 ration card and D5 copy of the receipt of LIC premium which would show that she was residing at Vithura address. Ext.D6 is the postal cover addressed to the accused that sent from the collectorate of Thiruvananthapuram. These CRL.A.280/08 ## **:-10-:** documents shows that the accused was ordinarily residing at some other address than what is shown in Ext.P6. The learned counsel for the appellant vehemently submitted that, especially, in the light of the summons issued to the accused from the court, who appeared in pursuance to that, would show that she was residing in the address shown in Ext.P6 cover, since both are in the same address. But the accused has got an explanation as to how she received summons from the court. According to the accused, the post man of Vembayam post office said that there was registered letter from the court in the Mukkolakkal address. It was then she obtained summons. But that does not mean that, unless it is proved that when Ext.P6 was sent, she was residing in the address shown there, the accused was residing in the very same address. As rightly observed by the learned Magistrate, the complainant did not examine the postman to prove that the accused was residing at Mukkolakkal house, when he tried to serve Ext.P6 to the addressee. So absolutely there is no evidence to show that the accused was residing in the address shown in Ext.P6 when the same was sent to the accused. The receipt of other postal articles, even though in the same CRL.A.280/08 ## **:-11-:** address, are not sufficient to discharge the burden of the complainant that the statutory notice was served on the accused in her correct address, especially when the defence exhibits produced showing different address where she ordinarily residing. Hence it was incumbent upon the complainant to examine the concerned postman to prove his claim of service of notice on the accused. Therefore, according to me, the findings of the court below, that the complainant failed to establish that notice was sent in the address of the accused also is correct and no interference is warranted. Thus, on a close scrutiny of the evidence and materials on record, I am of the view that the learned Magistrate is fully justified in his finding and acquitting the accused since the findings of the court below are supported by materials and evidence on record. Therefore such findings cannot be treated as perverse or illegal. In a recent decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the 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: CRL.A.280/08 **:-12-:** “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.” On an 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 am of the view that the appellant in the present case has miserably failed to make out exceptional cases or compelling reasons to interfere with the order of acquittal or any ground to hold that the judgment of the trial court is perverse. Therefore, there is no merit in this appeal. In the result, this appeal is dismissed. **kvm/-** **V.K.MOHANAN, JUDGE** ## CRL.A.280/08 **:-13-:**