P.K. Mohammedkutty v. Chenakkal Cheria Mohammed and State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 CRL.A.No. 1111 of 2004() ------------------------ CC.76/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... APPELLANT: COMPLAINANT ------------------------- P.K.MOHAMMEDKUTTY, S/O.VEERANKUTTY, PALAKKAL HOUSE, KARIPUR.P.O., MALAPPURAM DISTRICT. BY ADV. SRI.K.SHIBILI NAHA RESPONDENTS: ACCUSED & STATE ------------------------------ 1. CHENAKKAL CHERIA MOHAMMED, S/O.ABDURAHIMAN, CHENAKKAL HOUSE, PARAMBIL PEEDIKA.P.O., THENJIPALAM, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.N.MANOJ KUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SRI K.S. SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **-----------------------------------------Crl.A No.1111 of 2004 ----------------------------------------** Dated the 30th Day of September, 2011 ## **JUDGMENT** The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is appellant as he is aggrieved by the judgment dated 5.3.2004 of the court of Judicial First Class Magistrate-II, (Forest Offences), Manjeri 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 an amount of Rs.40,800/- from the complainant for his business purpose and towards the discharge of the said liability, the accused issued a cheque dated 20.2.2003 for an amount of Rs.40800/-. Ext.P1 is the said cheque. According to the complainant, when the said cheque presented for encashment, the same was dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has not repaid the cheque amount in spite of the statutory notice sent by the complainant and therefore the accused has committed the offence punishable under section 138 of the NI Act. With the above allegation, the complainant approached the court of Chief Judicial Magistrate, Manjeri by filing a formal complaint CRL.A 1111/04 ## **-:2:-** upon which cognizance was taken for the offence under Section 138 of the N.I.Act and the case was made over to the present trial Court for disposal wherein the case was received as C.C.No.76/2003. During the course of trial, from the side of the complainant, Pws 1 and 2 were examined and produced Exts.P1 to P5. Whereas from the side of the defence, no Exhibit is produced but one witness was examined as DW1. After considering the entire evidence and materials and the facts and circumstances involved in the case, the trial court found that the complainant has not proved the case against the accused beyond the shadow of doubt with cogent and reliable evidence . Accordingly, the accused is found not guilty and he is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3 I have heard Sri K.Shibili Naha, the counsel appearing for the appellant and also Sri N.Manoj Kumar, the learned counsel appearing for the Ist respondent. 4. Counsel for the appellant vehemently submitted that the Ist respondent/accused put the signature, in various documents referred to by the learned Magistrate, differently and therefore, the findings of the learned Magistrate that the CRL.A 1111/04 ## **-:3:-** signature contained in Ext.P1 is not the real signature of the accused, cannot be correct. It is also the submission of the learned counsel that when the accused disputes the signature, it is for the accused to take steps to substantiate the dispute that the signature is not that of the accused. The learned counsel made the above submission on the strength of the decision of this Court in **Ajithkumar v. Rejinkumar** (2009 (3) KHC 221). It is also the submission of the learned counsel that except the dispute regarding the signature, the accused has not challenged the transaction claimed by the complainant and no other evidence is adduced to show as to how Ext.P1 cheque which pertained to the accused reached in the hands of the complainant. Thus according to the learned counsel, the trial court has committed wrong in acquitting the accused simply on the basis of an observation that the signature contained in Ext.P1 is not that of the accused particularly in the absence of any solid evidence in support of such observation and finding. Therefore the judgment of the trial court is liable to be set aside and the accused/Ist respondent is liable to be punished for the offence under section 138 of the NI Act. 5. On the other hand, the counsel for the Ist CRL.A 1111/04 **-:4:-** respondent/accused strenuously submitted that the accused has made out a case on the basis of the materials available on record to the effect that the cheque in question was the one which entrusted with the complainant in blank form, when he obtained gold ornaments from the complainant connected with a gold kuri . It is also the submission of the learned counsel that on a comparison of the admitted signature of the accused particularly in Ext.P4 application for opening an SB account and in the 313 statement as well as in the plea recorded by the Magistrate, it can be seen that those signatures and the signature in Ext.P1 are entirely different and therefore, the findings of the learned Magistrate is fully correct. It is also the submission of the learned counsel that the complainant has miserably failed to prove the transactions which he claimed, especially in the absence of any positive and independent evidence in support of such claim. Further, the learned counsel submitted that, from the plea of the accused that recorded under section 313 Cr.P.C and in view of the admissions obtained during the cross examination of PW1, the complainant, it can be seen that the accused has made out a probable case and therefore, it was for the complainant to prove the CRL.A 1111/04 **-:5:-** transaction as well as the execution and issuance of the cheque as claimed by him. But in the present case, the complainant has miserably failed to discharge the above burden and therefore, the trial court is fully justified in its finding that the complainant has miserably failed to prove the case beyond reasonable doubt. In order to substantiate the above submission, the learned counsel heavily relied upon the Division Bench decision of this court in **Devan v. Krishna Menon** (2010 (2) KLT 379). 6. The specific case of the appellant/complainant is that the accused borrowed an amount of Rs.40,800/- for the business purpose of the accused, with an undertaking that the same would be repaid within one month and thereafter on failure of the accused in paying the amount as undertaken by him, the complainant approached the accused and demanded for the repayment, but no payment was made on such demand, but thereafter the accused came to the house of the complainant and after due execution of Ext.P1, issued the same to the complainant, which was subsequently dishonoured on presentation for encashment. While denying the above allegation and claim, the specific case raised by the accused is CRL.A 1111/04 **-:6:-** to the effect that the cheque in question was one which handed over to the complainant when the accused obtained gold ornaments from the complaint connected with a gold kuri transaction and according to the accused, Ext.P1 cheque when entrusted with the complainant, the same was a blank one and he never put his signature on Ext.P1 cheque. The only evidence adduced by the complainant, to prove the transaction, which he claimed is that of the deposition of the complainant himself who was examined as PW1 and Exts.P1 to P5 documents. PW2 is the Manager attached to the Areakode Service Co-Operative Bank , through whom, Ext.P4 application for opening an account in his bank submitted by the accused as well as Ext.P5 certificate, copy of the extract of the SB account of the accused in the above bank, are proved. Ext.P1 is the cheque in question and Ext.P2 series are connected with the dishonour of Ext.P1 cheque. Ext.P3 is the lawyer notice. In the light of the rival arguments advanced by the counsel for the appellant as well as the respondent and in view of the materials and evidence referred to above, the question to be considered is whether the learned Magistrate of the trial court is correct in his finding that the issuance and execution of the cheque is not CRL.A 1111/04 **-:7:-** proved by the complainant and the complainant has not proved his case against the accused beyond the shadow of reasonable doubt with cogent and reliable evidence. 7. On a careful scrutiny of the deposition of PW1, it can be seen that , according to PW1, the accused borrowed an amount of Rs.40800/-. Except the interested version of PW1, no independent evidence is adduced by PW1 to corroborate his claim. The claim of PW1 that the accused borrowed Rs.40800/is quite doubtful because, normally, while borrowing an amount , the amount would be specific and would be reasonable. In the present case, there is no explanation as to why the loan amount is not fixed as either Rs.40,000/- or it as Rs.41,000/-. Thus, the figure of the loan amount itself creates doubt regarding the veracity of the complainant's allegation. Though in the complaint and in the proof affidavit, and in the evidence of PW1, he had stated that the amount was demanded and paid out of acquaintance between the complainant and the accused, no particulars are given in support of the claim of friendship. But during the cross examination, PW1 has admitted that he is conducting a jewellery. The complainant has also claimed that the accused failed to repay the amount in terms of CRL.A 1111/04 **-:8:-** the undertaking made by him and not repaid the amount at the time when the acused was insisted by the complainant and further claimed that the accused came to his house and after execution of Ext.P1 cheque, issued the same to the complainant. In support of the above facts, no evidence is forthcoming from the side of the complainant, except the claim of PW1 that he putforward while he was examined as PW1. 8. According to me, the correctness and legality of the findings of the trial court has to be examined , after due consideration of specific plea of the defence under the above backdrops of the complainant's case and evidence. In the present case, the specific defence taken by the accused is to the effect that he never executed and issued Ext.P1 cheque to the complainant as claimed by the complainant and there was no transaction and he never borrowed money from the complainant. According to the accused, the signature contained in Ext.P1 cheque is not his signature. Now , let us examine the evidence on record connected with the execution and issuance of the cheque. As I indicated earlier, from the side of the complainant, there is no independent evidence in support CRL.A 1111/04 **-:9:-** of the transaction claimed by the complainant as well as for the execution and issuance of the cheque. When PW1 was examined, he had deposed that Ext.P1 cheque was signed by the person namely, K. Muhammed, but he affirmed that the name of the accused is Chenakkal Cheria Muhammed and he does not know as to whether Chenakkal is the house name of the accused, in spite of the fact that PW1 claimed prior acquaintance with the accused. Though the complainant has claimed that he had acquaintance with the accused, his failure to depose regarding the house name etc of the accused again casts doubt on the veracity of the deposition of PW1 . During cross examination of PW1, he had further stated that in Ext.P1 cheque, the accused himself has written the amount and put his signature, but the remaining entries were made by another person who came along with the accused. It is also relevant to note that PW1 failed to mention the name of the person who allegedly accompanied the accused at the time of the execution of the cheque. Therefore the above evidence of PW1 is not sufficient to hold that the accused has executed and issued the cheque in favour of the complainant. 9. It is further relevant to note that when PW2 was CRL.A 1111/04 ## **-:10:-** examined, the account opening application in the name of Konari Chenakal Cheriya Muhammed, s/o. Abdulrahiman is proved as Ext.P4. Though PW2 has stated that the cheque in question was dishonoured for want of sufficient fund in the account, during cross examination, he admitted that there is difference in the signatures that seen in Ext.P1 and P4. He had also deposed that the signature that contained in Ext.P1 was not verified since there was no sufficient fund in the account of the account holder. PW2 has further deposed that : ''പണമ�ണ�യ�ര�ന�ങ�ല signature differs എ�� ക�ണ�ച� മടക�മ�യ�ര���. '' After analyzing the above evidence of PW1 and PW2 and on verification of documents including Exts.P1 and P4 and after comparison of the signature of the drawer of Ext.P1 cheque with those contained in Ext.P4 and also in the plea of the accused recorded by the learned Magistrate, the learned Magistrate came into the conclusion that there is similarity in the signatures seen in all the documents except in Ext.P1 which is totally dissimilar to others, and the learned Magistrate concluded that, Ext.P1 does not contain the real signature of the accused. I have also personally verified and compared the signature that contained in Ext.P4 application for CRL.A 1111/04 **-:11:-** opening the account, signature that put by the accused when his plea was recorded by the learned Magistrate, and also the signature of the accused which put by the him on the statement under section 313 of Cr.P.C. On such verification and comparison, I am of the view that the learned Magistrate is perfectly correct and justified in his finding that Ext.P1 does not contain the real signature of the accused. That being the position, according to me, I need not further consider the other entries contained in Ext.P1 cheque including the way in which the name of the account holder written in Ext.P1 cheque. 10. The learned counsel for the appellant vehemently submitted that, in view of the decision of this court in **Ajith Kumar's case** cited supra, the burden is on the accused to prove that the signature contained in Ext.P1 is not that of the accused. I am unable to sustain the above contention. As rightly pointed out by the learned counsel for the respondent, the dictum laid down by this court in **Ajith Kumar's case** is not applicable in the present case because of the factual difference between the above case and the case on hand. In the above reported case, the disputed cheque was the one among several cheque leaves which allegedly lost from the possession of the CRL.A 1111/04 ## **-:12:-** accused therein, but in that case, the complainant has successfully established that, another cheque leaf among the cheque leaves which alleged to have lost from the possession of the accused was presented and honoured. It was under the above particular facts and circumstances of that case, this court has held that, it is for the accused to substantiate the contention of the accused therein that the signature was not that of the accused. But in the present case, the factual situation is entirely different. As I indicated earlier, there is no independent evidence to show the execution and issuance of the cheque. The complainant himself has admitted that the name shown in Ext.P1 is not that of the accused but the same is of one “K.Mohammed”. The complainant's own witness, namely PW2 had categorically stated during his deposition that the signature contained in Ext.P1 cheque is entirely different from the specimen signature of the account holder that contained in Ext.P4 application. It is also relevant to note that during the cross examination of PW1, the accused has disputed the signature that contained in Ext.P1 cheque. But the complainant did not take any step to get examined Ext.P1 cheque by an expert. It is under the above situation, the learned Magistrate CRL.A 1111/04 ## **-:13:-** of the trial court himself compared and verified the signature that contained in Ext.P1 with the admitted signature of the accused that contained in Ext.P4 and other documents which form part of the court's record and came into a conclusion in favour of the accused. Thus according to me, the decision cited by the learned counsel for the appellant is not applicable in the light of the particular facts and circumstances involved in the case. 11. According to me, though the present appeal is preferred challenging the acquittal of the accused, regarding the finding of the learned Magistrate, on the reason that the signature that contained in Ext.P1 is not that of the accused, this court can consider the other aspects of the case of the complainant to find out whether the complainant has succeeded in establishing the essential ingredients of Section 138 of the NI Act. Thus on a total consideration of the entire evidence and materials, particularly in view of the claim raised by the complainant, it can be seen that the complainant has miserably failed to establish the transaction and passing of consideration connected with the claim raised by him by adducing sufficient and acceptable evidence. Whereas it can be safely concluded CRL.A 1111/04 **-:14:-** that the defence had succeeded in making out a probable case on the basis of the materials available on record especially in the light of the admission made by the complainant during his cross examination. Thus it can be seen that in the absence of any positive evidence from the side of the complainant in support of his claim that the accused availed a loan of Rs.40800/- from the complainant, which claimed to have given out of acquaintance with the accused, the accused has succeeded in bringing out the fact that the complainant is conducting a jewellery. The above admission of the complainant, to certain extent, is par with the case of the defence that the accused has obtained gold ornaments from the complainant connected with the gold kuri conducted by the complainant. So the plea of the defence that the cheque in question was entrusted with the complainant connected with the gold kuri transaction appears to be more probable, which would go against the complainant. Therefore, the finding arrived on by the court below that, the complainant failed to prove its case against the accused beyond reasonable doubt, is perfectly correct and justified in the light of the facts and circumstances involved in the case, particularly in view of the evidence and materials on record. CRL.A 1111/04 ## **-:15:-** In the light of the above discussions and the facts and circumstances referred to above, I am of the view that the trial court is fully justified in its finding and acquitting the accused under section 255(1) Cr.P.C, especially, when the reason assigned by the learned Magistrate after appreciating the evidence, are justifiable and convincing. Therefore, the appeal is devoid of any merit and accordingly, the same is dismissed. **V.K.MOHANAN,** JUDGE kvm/-