P.K. Chithralekha v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 CRL.A.No. 1114 of 2001(C) ------------------------ST.89/1995 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... APPELLANT(S): -------------- P.K. CHITHRALEKHA, D/O. EDAKANDATHIL BALAKRISHNAN NAIR, C.P. HOUSE, NARUKARA, MANJERI. BY ADV. SRI.T.K.AJITH KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. P.C. SOBHANA, W/O. RAJ., LINE COLONY, KALATHINPADI, PULPATTA AMSOM, MANJERI. R1 BY PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI. SRI. K.M.SATHYANATHAMENON (R2) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ---------------------------------------------CRL.A.. No.1114 of 2001 ---------------------------------------------Dated, 12[th] February, 2009. ## JUDGMENT This is an appeal at the instance of the complainant in a prosecution for the offence under Section 138 of the N.I. Act as she is aggrieved by the order passed by court below under Section 255(1) of Cr.P.C. acquitting the accused. 2. The case of the complainant/appellant is that accused borrowed some amount and towards the said liability she issued cheque dated 12.2.1993 on 11.3.1993. According to the complainant, when the cheque presented for encashment, the same was dishonoured for want of sufficient funds and thereafter she caused to send a lawyer notice on 24.2.1993 to the accused. Though she received the same on 25.2.1993 she had neither sent a reply nor paid the amount. Thus she approached the court below with the complaint. Based upon the sworn statement of the complainant, S.T.No.89/1993 was instituted in the court of the Chief Judicial Magistrate, Manjeri. When the accused appeared, particulars of offence contained in the complaint were read over and explained to the accused and she denied the same. Consequently, the further trial taken place and during which Pws 1 to 3 were examined and Ext.P1 to P5 were produced and marked on the side of the complainant. When the accused was questioned CRL.A. 1114/01 **:-2-:** under Section 313 of Cr.P.C., she denied all the incriminating circumstances which emerged during the evidence of complainant and she has stated she did not receive notice from the complainant. It is specifically stated that she did not sign any acknowledgment card also. No evidence was adduced from the side of the defence either oral or documentary. On the basis of the rival pleadings and materials on record, trial court framed two issues for its consideration and finally found that the complainant has miserably failed to establish that a formal notice was sent to the accused demanding her to pay the amount covered by the dishonoured cheque and the complaint was filed within the time so as to attract Section 138(b) of the N.I.Act. It is the above finding and order of acquittal challenged in this appeal. 3. Heard the counsel for the appellant as well as the counsel for the 2[nd] respondent. 4. Challenging the above finding of the trial court, the learned counsel for the appellant submitted that the available materials on record would show that the appellant/complainant had served notice on the accused and the claim of the accused is that she had not received the notice and the denial of her signature is only a lame excuse to evade from the liability. It is also the case of CRL.A. 1114/01 ## **:-3-:** the counsel for the appellant that notice contemplated under section 138(b) of the N.I.Act need not be a registered one. Therefore, according to the learned counsel, the finding of the court below is perverse and illegal. 5. On the other hand, the learned counsel for the 2[nd] respondent submitted that the complainant has miserably failed to show that a valid notice was served on the accused and also failed to prove that the accused failed to pay the amount within the time stipulated by the statute and therefore, the finding of the court below is absolutely correct and no interference is warranted. The counsel for the appellant submitted that the appeal deserves no consideration and the same is liable to be dismissed. 6. I have heard the arguments of both the counsels and also perused the records. 7. Going by the case of the complainant, it can be seen that the allegation is that the accused had borrowed as sum of Rs.7500/- and towards the part payment of the said amount, a cheque for Rs.2000/- was issued which was dishonoured when presented for encashment. As observed by the court below, regarding the date of issue of the cheque, the evidence of the complainant is not free from doubt. In the complaint it is stated that CRL.A. 1114/01 ## **:-4-:** cheque dated 12.2.93 was issued on 11.1.93. The trial court found that when PW1 was examined, she stated that the cheque was issued on 12.2.93 showing the date as 12.2.93 itself. The main defence set up by the accused is that apart from the denial of the transaction, she did not get any notice and she did not sign in the acknowledgment card also. In order to substantiate the above contention, the defence placed reliance upon Ext.P5. As per Ext.P5, there is no signature of the accused. According to the accused, the present case was filed only due to sheer animosity between the complainant and the accused who are working in the postal department. The trial court has observed that in the complaint, the complainant has deliberately suppressed the relationship. After examining the Ext.P5 postal acknowledgment, the trial court is satisfied that there is no signature of the addressee and therefore, it cannot be held that the accused received the notice. When PW2 was examined he has deposed that in the absence of registration receipt, he cannot say whether Ext.P5 is genuine or not. He has also stated that he cannot say whether the seal of the post office, Pulpatta seen on Ext.P5 is the seal of that post office. PW3 was examined to show that notice was served on the accused. PW3 stated that it was in front of him that the addressee signed on Ext.P5 CRL.A. 1114/01 ## **:-5-:** postal acknowledgment. In fact there is no signature of accused in Ext.P5. On the other hand, instead of the signature , what is seen in the bottom of Ext.P5 is the writing as “sd/- P.C.Sobhana”. Thus it is clear that in Ext.P5 there is no signature acknowledging the receipt of the postal article by the addressee. Merely because there is an endorsement to the effect ‘sd/- P.C.Sohbana’, it cannot be held that actually the postal article was received or given to the addressee. The trial court has found that the complainant has suppressed the postal receipt for registration and no plausible explanation is offered for the same. Thus, the trial court, after considering the evidence of PW1, the averments in the complaint and the amount shown in Ext.P1 cheque, came into the conclusion that the complainant has no specific case regarding the transaction which led to the issuance of the cheque for Rs.2000/-. 8. Thus going by the impugned judgment and the materials on record, it can be seen that the trial court has correctly found that the complainant has miserably failed to establish a case based upon Ext.P1 cheque for Rs.2000/- so as to attract Section 138 of the N.I.Act. The complainant has suppressed the relationship between the accused as well as the complainant and PW1 has put the date regarding the issuance of the cheque and there is no explanation CRL.A. 1114/01 ## **:-6-:** for the amount shown in Ext.P1 cheque. On the other hand, the case of the complainant is that the accused had borrowed Rs.7,500/-. On the basis of Ext.P5 and other documents, the trial court has also found that the complainant has miserably failed to show that a formal demand notice was served on the accused and the complaint was filed in terms of the period fixed by Section 138 (b) of the Act. Accordingly, the trial court came into the finding that the complainant has failed to establish the allegation so as to attract the offence under section 138 of the N.I Act including the transaction which led to the issuance of Ext.P1 cheque for Rs.2000/- and also the service of demand notice on the accused. The above findings are purely based on the evidence and materials on record and based upon judicial discretion exercised by the trial court. Therefore, the above findings cannot be disturbed in appeal as the appellant has miserably failed to point out any illegality or irregularity committed by the court below. Therefore, I have to approve the finding and the order of the court below. 9. By preferring this appeal, the appellant/complainant seeks to reverse the order of acquittal passed by the court below. In the light of the foregone discussions, it can be seen that the findings and conclusions arrived on by the court below is purely based on CRL.A. 1114/01 ## **:-7-:** evidence and materials. Nothing pointed out that the trial court has overlooked any material or evidence on record. In the decision reported in **Ghurey Lal v. State of U.P** . (2008(4) KLT SN17 (C.No.17)(SC), the Apex Court has laid down certain circumstances under which the appellate court can interfere with the order of acquittal. In the said decision, the Apex Court has held that unless certain compelling and substantial reasons are made out, the appellate court, while exercising its jurisdiction, shall not interfere with the order of acquittal passed by the trial court. In the present case, the appellant has miserably failed to point out any such compelling or substantial reason so as to interfere with the order acquittal. In the result, there is no merit in the appeal and accordingly, the same is dismissed. ## **V.K.MOHANAN, JUDGE.** kvm/- CRL.A. 1114/01 **:-8-:** V.K.MOHANAN, J. CRL.A. No.1114/2001 Judgment Dated:12.2.2009