Radhamaniamma d/o Balakrishna Pillai v. Kittunni and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934 ## CRL.A.No. 1871 of 2010 (D) -------------------------CRLP.226/2010 DATED 12-03-2010 STC.2666/2007 of J.M.F.C.,CHITTUR APPELLANT/COMPLAINANT: ------------------------ RADHAMANIAMMA,D/O.BALAKRISHNA PILLA, AGED 56 YEARS,VANDITHALAVALAM, CHITTUUR. BY ADV. SRI.SURIN GEORGE IPE RESPONDENTS/ACCUSED AND STATE: -------------------------------- 1. KITTUNNI, AGED 40 YEARS, S/O.KUNJU, PEON, PERUMATTI SERVICE CO-OPERATIVE BANK, VANDITHAVALAM, CHITTUR. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.JACOB SEBASTIAN PUBLIC PROSECUTOR SMT.LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. -------------------------------Crl.A.No.1871 of 2010** ## **---------------------------------Dated this the 11[th] day of December, 2012** ## **JUDGMENT** 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 she is aggrieved by the order dated 24/01/2009 in S.T. Case No.2666 of 2007 of the court of the Judicial Magistrate of the First Class, Chittur 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 on 06/05/2007, the accused borrowed an amount of `1,50,000/- from the complainant and on that day itself the accused issued a post dated cheque dated 06/06/2007 for the said amount and the complainant was made to believe that the cheque would be honoured when presented for encashment. According to the complainant, Crl.A.No.1871/2010 : 2 : though the said cheque was presented for encashment, the same was dishonoured for want of sufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of a statutory notice served on him and thus, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial, the complainant herself was examined as PW.1 and produced Exts.P1 to P4(b) documents. No evidence, either oral or documentary, was produced from the side of the defence. The trial court after having considered the entire evidence and materials on record found that, the complainant has admitted that Ext.P2 cheque was issued as security and also found that the complainant has unambiguously admitted that the accused has not made an assurance that Ext.P1 cheque issued would be honoured, when it is to be presented for encashment. The trial court also found that, the evidence of PW.1 reveals that, she is a money lender without any valid licence. Thus, it is found that the accused has not given Ext.P1 cheque, for discharge of any liability or Crl.A.No.1871/2010 : 3 : other debts due to PW.1 and finally the accused is not found guilty and he is acquitted under Section 255(1) of Cr.P.C. It is against the above finding and order of acquittal, the present appeal is preferred. 3. Heard Sri.Surin George Ipe, the learned counsel for the appellant and Adv.Sri.Jacob Sebastian, the learned counsel appearing for the first respondent. 4. The learned counsel for the appellant vehemently submitted that Ext.P1 cheque contained the signature of the accused/first respondent and he has no explanation as to how the said cheque reached the hands of the complainant and further the evidence of PW.1- the complainant proves the due execution of the cheque and the transaction. Thus, according to the learned counsel, the trial court overlooking the above facts and circumstances and evidence, erroneously held that, the accused has not given Ext.P1 cheque to PW.1 for discharge of any debt or other liability due to PW.1. The learned counsel for the respondent strenuously submitted that, the finding of the court below is based upon the Crl.A.No.1871/2010 : 4 : available evidence and materials on record and by assigning appropriate reasons and therefore no interference is warranted. 5. I have considered the contentions advanced by the learned counsel for the appellant and the respondent and I have gone through the judgment, which is under challenge in this appeal. 6. In the light of the contentions advanced by the learned counsel for the appellant and the respondent, the question to be considered is, whether the appellant has succeeded in making out a prima facie in support of her challenge against the findings of the court below, and whether he has made out any substantial ground to interfere with the order of acquittal recorded in favour of the accused. 7. The learned counsel has read out to me the deposition of PW.1 the complainant in the present case. The specific case of the complainant is that, the accused borrowed a sum of `1,50,000/- on 06/05/2007 and on that day itself, the accused issued Ext.P1 cheque, which is a Crl.A.No.1871/2010 : 5 : post dated cheque bearing date as 06/06/2007. There is misspelt in the deposition of PW.1, why the accused brought a filled up cheque for an amount of `1,50,000/with putting a post date as 06/06/2007. In the evidence of PW.1 nothing has been stated about the prior understanding about the demand of `1,50,000/- or her consent for giving such an amount on 06/06/2007 and understanding to bring a cheque for `1,50,000/- with post dated cheque as 06/06/2007. The complainant has also deposed before the court, which is discernible from the deposition, that read out to me, that, the accused brought a filled up cheque and put the signature in the presence of the complainant. Admittedly, the accused is working as Peon in a Co-operative Bank and in the absence of any particular facts or circumstances to bring up a filled up cheque, it is quite unbelievable that an employee of a Co-operative Bank, though working as peon, brought up a filled up cheque. The complainant has no case that the accused is illiterate or unable to fill up the cheque. In the absence of any evidence with Crl.A.No.1871/2010 : 6 : respect to the prior demand and mutual understanding for release of `1,50,000/- and for bringing up a filled up cheque, according to me, the version of the complainant cannot be believed. So, the case of the complainant is that the accused issued post dated cheque on 06/05/2007 for an amount of `1,50,000/- cannot be believed, especially, when the complainant has admitted that she had received Ext.P1 cheque from the accused as a security. It is also on evidence that the complainant is a money lender, who is having no licence for the same. Under the above circumstances, according to me, particularly, in the light of the above evidence and materials on record, it cannot be said that, the finding of the court below is perverse or illegal so as to interfere with the same in appeal. 8. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that, Crl.A.No.1871/2010 : 7 : “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.” Thus, on examination of the facts and circumstances involved in the present case, in the light of the dictum laid down by the Apex Court in the decision cited supra, I find no prima facie ground to interfere with the order of acquittal recorded by the trial court. Therefore, the appeal fails. In the result, this appeal is dismissed accordingly. Sd/- **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge