N.V. Nalinkshan v. E.N. Vivek and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934 CRL.A.No. 2744 of 2009 ----------------------[AGAINST THE ORDER/JUDGMENT IN STC.499/2008 of J.M.F.C.-II, KANNUR DATED 05-11-2009] APPELLANT(S)/PETITIONER/COMPLAINANT:- ------------------------------------- N.V.NALINAKSHAN, S/O.KRISHNAN, AGED 48 YEARS, SANTHI NILAYAM, AZHEEKKAL KANNUR. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENTS(S)/ACCUSED & STATE: ------------------------------- 1. E.N.VIVEK, S/O.BALAKRISHNAN, AGED 43 YEARS, AISWARYA JEWELLERY AND DYE WORKS NEAR SUPPLYCO, THALASSERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.SHEEBA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15-02- 2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 2744 of 2009** **----------------------------------------** Dated this the 15[th] day of February, 2013 ## **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 he is aggrieved by the judgment dated 5.11.2009 in S.T.C.No. 499 of 2008 of the court of Judicial First Class Magistrate-II, Kannur 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 complainant and accused are known each other and during the third week of January,2008, the accused approached and borrowed a sum of `3 lakhs from the complainant with a promise to repay the amount within one month and towards the discharge of the said liability, the accused issued a post-dated cheque bearing date as 25.8.2008 which when presented for encashment, dishonoured for the reason of ## _**Crl.A.No. 2744 of 2009**_ ## _**:-2-:**_ insufficiency of fund in the account maintained by the accused and the accused has not repaid the amount in spite of statutory notice served on him and therefore, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P6. From the side of the defence, no evidence either oral or documentary was adduced. The trial court finally found that the evidence of PW1 is not convincing enough to prove the execution of the cheque by the accused. On the other hand, the accused has succeeded in creating doubt to the mind of the court regarding the genuineness of the transaction as alleged by the complainant and the court below further found that uncorroborated evidence of PW1 alone is not sufficient to hold that the accused issued Ext.P1 cheque to him for discharge of the liability. Thus, the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal under challenge in this appeal. _**Crl.A.No. 2744 of 2009**_ ## _**:-3-:**_ 3. Heard Sri.C.P.Peethambaran, learned counsel for the appellant. 4. Counsel for the appellant vehemently submitted that the accused had admitted his signature in Ext.P1 cheque and therefore, the execution is proved. Consequently, the complainant is entitled to get the benefit under Section 138 of the N.I.Act, especially when though the accused took a contention to the effect that the cheque in question is given to one Ibrahim, no evidence is produced from the side of the defence. Hence, according to the counsel, the findings of the court below are liable to be set aside and the accused is liable to be convicted after reversing the order of acquittal. 5. I have carefully considered the submission made by the counsel for the appellant and I have gone through the judgment impugned in this appeal. 6. In the light of the contentions advanced by counsel for the appellant and in the light of the findings of the court below, on the ## _**Crl.A.No. 2744 of 2009**_ ## _**:-4-:**_ basis of the evidence and materials referred to therein, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the finding of the court below. Or else, whether the judgment impugned is perverse or illegal so as to interfere with the order of acquittal. 7. It is beyond dispute that in the complaint, there is no specific averment about the date on which the amount was demanded and the same borrowed to the accused. The only case of the complainant is that the accused demanded a loan of `3 lakhs and the same was given to him during the third week of January,2008 and the accused issued a post dated cheque Ext.P1. Suffice to say, to prove the above transaction except the interested version of the complainant, no other independent witness is examined or any documentary evidence is produced. So, according to me, with respect to the exact transaction and to prove the same, there is no evidence other than the version of PW1/the complainant. Though there is no specific allegation in the ## _**Crl.A.No. 2744 of 2009**_ ## _**:-5-:**_ complaint regarding the mode of payment of the amount, the complainant, when examined as PW1, stated that the amount was given in cash to the accused after drawing the same from his NRI account. To prove the said fact also, no evidence is available. So regarding the transaction, absolutely there is no evidence and materials. The next question is whether the appellant/complainant has succeeded in proving the execution of the cheque. The learned counsel for the appellant vehemently submitted that as the signature that contained in Ext.P1 is not disputed, which is admitted by the accused, the complainant is entitled to get a presumption under Section 139 of the N.I.Act. It is now well settled especially in the decision reported in **Rangappa** v. **Sri Mohan** [2010 KHC 4325] that presumption can be extended in favour of the complainant or the holder of the cheque in a legal action only when the execution is proved or the same is admitted by the accused. In the present case, the accused denied the execution of the cheque and according to him, ## _**Crl.A.No. 2744 of 2009**_ ## _**:-6-:**_ the cheque in question was given to one Ibrahnim and not to the complainant. In paragraph 8 of the trial court judgment, particularly in page 5 towards the middle, the trial court has found that on a bare perusal of Ext.P1 cheque, it can be seen that the signature in Ext.P1 cheque is made with one pen and other entries are dealt with another pen and the hand writings in both the entries also appear to be different and the learned Magistrate has further found that the name and signature on the bottom of the cheque are made neatly in English. If that be the case, there is no defect for the accused to fill the entire entries in the cheque at the same time with the same pen. Thus, the learned Magistrate has held that PW1 has not offered any explanation as to how the different writing occurred in the cheque. In this juncture, it is relevant to note that the case of the complainant is that the accused executed and issued the cheque from the house of the sister of the complainant. But, the said sister or any other person was examined to prove the case of the complainant. If the case of the ## _**Crl.A.No. 2744 of 2009**_ ## _**:-7-:**_ complainant is that Ext.P1 cheque is executed by the accused, as rightly pointed out by the learned Magistrate, there need not be any difference in the ink with respect to the entries in the cheque. The said facts itself would be sufficient to show that the cheque was not executed and issued by the accused as claimed by the complainant and the said facts further probabilise the case of the accused that the same was given by some other person. From the above discussion, the evidence and materials referred to above, it can be seen that the learned Magistrate, after assigning acceptable and cogent reasons, refused to believe the case of the complainant and acquitted the accused. Thus, the findings of the court below are supported by the materials and evidence on record. Hence, it cannot be said that the findings are perverse or illegal. The Apex Court, in the decision reported in **Pudhu Raja** v. **State** [(2013) 1 SCC (Cri) 430], has held that the appellate court can interfere with the order of acquittal only in exceptional cases where there are compelling circumstances and ## _**Crl.A.No. 2744 of 2009**_ ## _**:-8-:**_ the judgment in appeal is found to be perverse. It is further held that the appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence. On examination of the facts and circumstances involved in the case, in the light of the dictum laid down by the Honourable Apex Court, I am of the view that the appellant has miserably failed to show that the judgment impugned in this appeal is perverse or illegal. If that be so, even if an appeal is entertained, there is no scope for any interference. In the result, the appeal fails and the same is dismissed. ( **V.K.MOHANAN** ) Judge. MBS/ - _true copy-_ _P.S.TO JUDGE_