P.R.RAMAKRISHNA KARNAVER v. ABUBACKER & STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934 CRL.A.No. 1868 of 2009 ----------------------[AGAINST THE ORDER DTD.25.3.2009 IN CC.351/2007 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHENGANNUR] APPELLANT(S)/PETITIONER/COMPLAINANT: ----------------------------------- P.R.RAMAKRISHNA KARNAVER, AGED 60 YEARS, VALIYAPARAMBIL, PENNUKKARA P.O. ALA, CHENGANNUR. BY ADV. SRI.IYPE JOSEPH RESPONDENTS(S)/ACCUSED/STATE: ---------------------------- 1. ABUBACKER, THAZHAM VILA THEKKETHIL, KOLLAKADAVU P.O. CHERIYANAD, CHENGANNUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1868 of 2009** **----------------------------------------** Dated this the 21[st] day of November, 2012 ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 25.3.2009 in C.C.No. 351 of 2007 of the court of the Judicial First Class Magistrate, Chengannur 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 towards the discharge of the debt of `2 lakhs due to the complainant, the accused executed and issued Ext.P1 cheque for an amount of `2 lakhs, which when presented for encashment, dishonoured for want of sufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of statutory notice. Thus, the accused has committed the offence punishable under Section 138 of the N.I.Act. 3. During the trial, the complainant himself got examined as ## **Crl.A.No.1868 of 2009** ## **:-2-:** PW1 and produced Exts.P1 to P6. From the side of the defence, the accused mounted to the box and examined as DW1 and produced Ext.D1. The trial court, after considering the entire evidence and materials, found that the execution of Ext.P1 cheque and also the passing of consideration are not proved and the trial court is of the opinion that the defence case is more probable. Thus, the trial court concluded that the complainant has not succeeded in proving the offence under Section 138 of the N.I.Act and consequently, the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged in this Crl.A. 4. I have hard Sri.Iype Joseph, learned counsel for the appellant and I have perused the judgment of the trial court. 5. Learned counsel for the appellant vehemently submitted that the accused has admitted the signature that contained in Ext.P1 cheque, which was drawn by the accused, by making necessary entries through typewriting machine and therefore, the trial court ought to ## **Crl.A.No.1868 of 2009** ## **:-3-:** have found that the complainant has succeeded in proving the execution of the cheque. Thus, according to the counsel, the findings of the court below against the above facts require interference and the accused is liable to be convicted. 6. I have carefully considered the submission made by the learned counsel for the appellant and I have gone through the judgment of the trial court. 7. It is beyond dispute that the complainant has miserably failed to raise the plea in the complaint regarding the demand for loan and the date of handing over the loan to the accused. It is also relevant to note that the complainant has no case that he had obtained a security from the accused while granting such a pretty amount. It is beyond dispute that the accused is a fish merchant at Chengannoor and his case is that he had received a sum of `10,000/- from the complainant on 9.3.2007 and at the time of receiving the said amount, he had handed over a blank signed cheque as security for the receipt of `10,000/-. According to the accused, he had returned the said amount, ## **Crl.A.No.1868 of 2009** ## **:-4-:** but the said cheque was not returned and the said cheque is misused by the complainant for filing the present case against the accused. The learned Magistrate of the trial court had occasion to observe the demeanour of the parties and after considering the evidence and materials on record came to a conclusion that Ext.P1 was not supported by any consideration. No explanation is forthcoming on the part of the complainant as to how he accepted the typewritten cheque brought by the accused. It is also relevant to note that except the interested version of PW1, there is no independent evidence or document to support the case of the complainant that he had handed over `2 lakhs to the accused, who is a fish vendor. In the absence of any independent and positive evidence regarding the transaction as claimed by the complainant and in the absence of any explanation for the typewritten entries in the cheque, it cannot be said that the complainant has succeeded in proving the execution of cheque. It is under the above factual backdrops and the case of the defence, the trial court found that the execution of Ext.P1 cheque is not proved and ## **Crl.A.No.1868 of 2009** ## **:-5-:** the passing of consideration as well. According to me, the above findings of the court below are on the basis of the available materials and evidence on record and the said findings cannot be treated as perverse or illegal. 8. In a recent decision of the Apex Court reported in **State of** v. **Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “ _In cases where there are exceptional 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.”_ Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with ## **Crl.A.No.1868 of 2009** ## **:-6-:** the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question. Therefore, I find no ground to allow the appeal, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Appeal is dismissed. **V.K.MOHANAN,Judge.** MBS/ ## **Crl.A.No.1868 of 2009** **:-7-:** **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 **JUDGMENT** ## **Crl.A.No.1868 of 2009** ## **:-8-:** Dated:11.11.2011 -------------------------------------------------------------------------------------------------------