## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN**
**WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2012/21ST BHADRA 1934**
**CRL.A.No. 1392 of 2009 ( ) -------------------------AGAINST THE JUDGMENT IN CC.1023/2002 of J.M.F.C.,THIRUVALLA**
**APPELLANT(S)/APPELLANT/PETITIONER.: ----------------------------------**
**P.D.SUGUTHAN, PARAYIL VEEDU, KOTTOOR MURI, KAVIYOOR VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.MVS.NAMBOOTHIRY**
**RESPONDENT(S)/ACCUSED & STATE.:**
**-------------------------------**
**1. O.K.MURALEEDHARAN NAIR, THAZATHE UPPUNKARA VEEDU, NJALBHAGAM MURI KAVIYOOR VILLAGE, THIRUVALLA TALUK.**
**2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY ADV. SMT.MINI.R.MENON FOR R1 BY ADV. SMT.S.HYMA, PUBLIC PROSECUTOR FOR R2**
**THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**ami/**
## **V.K.MOHANAN, J. ------------------------------Crl.A.No.1392 of 2009**
**------------------------------Dated this the 12[th] day of September, 2012.**
## **J U D G M E N T**
The challenge in this appeal is against the judgment dated 31.5.2008 in C.C.No.1023 of 2002 of the court of Judicial First Class Magistrate-Thiruvalla, by which the learned Magistrate acquitted the accused under section 248 of Cr.P.C. who faced the prosecution for the offence punishable under section 420 of IPC at the instance of the appellant, who is the complainant thereunder.
2. The case of the complainant is that the accused borrowed a sum of `1,90,000/- from the complainant on 6.5.1998, agreeing that the said amount with interest will be repaid within 11 months and accordingly an agreement was executed to that effect. It is the further case of the complainant that as the amount was not paid in time, mediators were intervened at the instance of the
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complainant and accordingly on 29.7.1999, the accused issued Ext.P2 cheque for an amount of `2,38,450/- which when presented for encashment, dishonoured stating that the account was closed as early as on 20.1.1992. Thus according to the complainant, the accused has committed the offence under section 420 of IPC.
3. On receiving the complaint, the sworn statement of the complainant was recorded and the case was taken on file for the offence under section 420 of IPC and after the appearance of the accused, the complainant was examined as PW1 and marked Exts.P1 to P4 in terms of section 244(1) of Cr.P.C. Thereafter, a charge was framed against the accused for the offence under section 420 of IPC, which when read over and explained to him, he denied the charge and claimed to be tried. Thus PW1 was cross examined by the defence and PW2 was also examined on behalf of the complainant. The trial court finally found that the complainant has miserably failed to establish the essential
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ingredients of section 420 of IPC and consequently found that the complainant has failed to prove the case against the accused beyond doubt and accordingly he is acquitted under section 248(1) of Cr.P.C. It is the above findings and order of acquittal challenged in this appeal.
4. I have heard Sri.M.V.S.Nampoothiry, learned counsel appearing for the appellant and I have perused the judgment impugned in this appeal.
5. Learned counsel for the appellant vehemently submitted that the conclusion of the trial court, that the entire transaction is a civil one and no criminal offence committed, is totally erroneous and illegal. It is also the contention of the learned counsel that the trial court ought to have found that the accused has maintained a deceitful intention even at the time of issuance of the cheque, since the cheque in question belong to an account which was already closed years back. But the findings of the court below in this respect are against the facts and
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circumstances, and therefore the same is liable to be set aside. According to the learned counsel, the conclusion of the court below, that at the time of issuance of the cheque there was no delivery of property to any person by inducement, is also not correct. Thus according to the learned counsel, 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 of the learned counsel for the appellant and I have again perused the judgment of the trial court.
7. In the light of the contention advanced by the counsel for the appellant, 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 judgment of the trial court and also against the order of acquittal recorded in favour of the accused. Going by the arguments of the learned counsel and the findings of the court below, it can be seen that, the undisputed case of the complainant is
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that he had paid an amount of `1,90,000/- to the accused on 6.5.1998, on the assurance of the accused that the same will be returned with interest within 11 months. It is also the case of the complainant that, an agreement was also executed on 6.5.1998 stating the terms and conditions of the transaction. It is the further case of the complainant that, inspite of the written agreement and borrowal of the amount, and contrary to the terms of the agreement, the amount was not repaid within the stipulated time and therefore at the intervention of the mediators at the instance of the complainant, the accused issued a cheque on 29.7.1999 for an amount of `2,38,450/-. According to the complainant, when the said cheque was issued for the said amount, there was no account in the name of the accused, since the cheque in question pertains to an account which was closed as early as on 20.1.1992. Therefore, it is the further case of the complainant that at the time of issuing the cheque in question, the accused was fully aware of the
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fact that the cheque is not going to be honoured as there was no such account. On a reading of section 420 of IPC keeping in mind the evidence and materials in the present case, one can easily come into a conclusion that, the complainant has miserably failed to establish that, at the time of the alleged borrowal of the amount, the accused has dishonestly induced the complainant, as there is no materials and evidence to attribute fraudulent inducement and intention on the accused, at the time of entering into the transaction. The complainant has no case that he had parted that much amount on receiving Ext.P2 cheque. It is beyond dispute that Ext.P2 cheque was given on a later stage and therefore, it cannot be said that the complainant was induced to part a sum of `1,90,000/- to the accused. The learned Magistrate in para 9 of the impugned judgment, has specifically mentioned that there was no dishonest inducement or deception at the time of delivery of property so as to attract the offence under section 420 of
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IPC and the said position is legally settled and there is no contra evidence to come into different conclusion. In the light of the above facts and circumstances and the evidence and materials referred to by the learned Magistrate in the impugned judgment it can be seen that the available materials and evidence adduced by the complainant are not sufficient to attract the essential ingredients of section 420 of IPC. If that be so, even if this appeal is entertained any further, there is not even a remote scope to interfere with the findings of the court below and to disturb the order of acquittal recorded in favour of the accused.
In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that,
“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 examination of the facts and circumstances involved in
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the case in the light of the dictum cited supra, it can be seen that, the appellant in the present case has miserably failed to show that the judgment impugned is a perverse one. No compelling or substantial reasons are made out to disturb the double presumption bolsters as per the judgment of the trial court and to interfere with the order of acquittal recorded by the trial court.
Therefore, I find no merit in this appeal. Accordingly, the same is dismissed.
Sd/- **V.K.MOHANAN, Judge**
ami/
//True copy//
P.A. to Judge
