S. Murali Padmavilasom v. State of Kerala and M. Subramaniyan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **CRL.A.No.448 OF 2005** **AGAINST THE JUDGMENT IN CC NO.664/1999 DATED 04-12-2004 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-1,NEYYATINKARA** **[ Crl.L.P. 147/2005 DATED 18-02-2005 OF HIGH COURT OF KERALA ]** ## **APPELLANT/COMPLAINANT:** **S.MURALI PADMAVILASOM, POZHUKONAM, THALAYAL DESOM, ATHIYANNOOR VILLAGE.** ## **BY ADV. SRI.R.T.PRADEEP** ## **RESPONDENTS/STATE & ACCUSED:** **1 STATE OF KERALA REP. BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2 M.SUBRAMANIYAN, AGED 60 T.C.24/606TH NUMBER VEEDU, LAYAM ROAD, THIRUVANANTHAPURAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA R2 BY ADV. SRI.M.RAMESH CHANDER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.448 of 2005 2** ## **JUDGMENT** ## **Dated this the 2[nd] day of July, 2020** **...** The above appeal is filed by the complainant in C.C.No.664 of 1999 on the file of the Judicial First Class Magistrate-1, Neyyattinkara. The complaint was filed by the appellant against the 2[nd] respondent for prosecuting him under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code. 2. The case of the complainant as narrated by the trial in the impugned judgment court is extracted hereunder: _“2. The accused borrowed Rs.60,000/- (Rs.Sixty thousand only) from the complainant on 7.3.1999. The accused issued a cheque dated 30.5.1999 drawn on Bharath Overseas Bank Ltd., Thiruvananthapuram branch to the complainant towards discharge of the debt. The complainant sent the cheque for collection through his bank Syndicate Bank, Amaravila. The cheque was returned unpaid for the reason that account closed. The complainant received the dishonour_ ## **CRL.APPEAL No.448 of 2005 3** _memo on 14.7.1999. He issued a demand notice to the accused on 15.7.99. The accused received the notice and sent a reply. He failed to repay the cheque amount within fifteen days from the date of receipt of demand notice. The accused issued the cheque with deliberate intention to deceive the complainant and thereby to induce him to deliver money to the accused. The act of the accused amounts to cheating. Hence this complaint.”_ 3. To substantiate the case, the complainant was examined as PW1. Exhibits P1 to P6 are the documents marked on the side of the prosecution. Exhibits D1 to D8 are the documents marked on the side of the defence. The witness examined on the side of the defence is DW1. **==> picture [412 x 12] intentionally omitted <==** documents, the trial court found that, the accused has not committed the offence and hence he was acquitted. Aggrieved by the acquittal order, this Crl.Appeal is filed. 5. Heard the learned counsel for the appellant and the learned counsel for the second respondent. **CRL.APPEAL No.448 of 2005 4** Heard the learned Public Prosecutor also for the first respondent. 6. It is an appeal against acquittal. The case of the complainant is that, the accused borrowed an amount of Rs.60,000/- from the complainant on 7.3.1999. The accused issued a cheque on 30.5.1999 drawn on Bharath Overseas Bank Ltd., Thiruvananthapuram to the complainant towards the discharge of the debt. The complainant sent the cheque for collection through his bank Syndicate Bank, Amaravila. The cheque was returned unpaid for the reason ‘account closed’. The complainant received the dishonour memo on 14.7.1999. He issued a demand notice to the accused on 15.7.1999. The accused received the notice and sent reply. But, the accused failed to repay the amount. Hence, the complaint was filed. 7. The learned Magistrate took cognizance under Section 138 of the Negotiable Instruments Act and under Section 420 of the Indian Penal Code. 8. The accused denied the case of the ## **CRL.APPEAL No.448 of 2005 5** complainant. According to him, he has no acquaintance with the complainant and has not issued Ext.P1 cheque to the complainant. He admitted the signature in Ext.P1 cheque. The case of the defence is that, there was an agreement for sale of property executed on 22.6.1996 between the accused and one K.P.Padmakumar. It was agreed to sell a property owned by the accused to the said Padmakumar. The accused received some amount in advance at the time of execution of the agreement. He issued some cheques to Padmakumar as a security for the receipt of the same. The agreement could not materialise due to the non performance of the terms of the agreement on the part of K.P.Padmakumar. The complainant herein is a benamy of K.P.Padmakumar. According to the accused, he has no transaction with the complainant. The accused himself was examined as DW1. He deposed in terms of the case as advanced by the defence. The very same case was advanced by the accused during his examination under Section 313 of the Cr.PC also. An attested copy of the so called agreement stated to **CRL.APPEAL No.448 of 2005 6** have been executed between the accused and K.P. Padmakumar is produced and marked as Ext.D1. 9. Of course, the complainant disputed the veracity of Ext.D1 agreement, especially on the ground that, it is a mere photocopy. But, the accused said that the original of Ext.D1 was produced in C.C.No.724 of 1999 in which the accused faces prosecution. The trial court after perusing Ext.D1 and considering the contention of the defence discarded the same. The trial court observed that in the absence of examination of Mr.Padmakumar, the contents in the documents cannot be given much reliance. Therefore, the trial court found that, the case of the complainant is proved. But, the trial court found that, the complaint is filed beyond the period mentioned under Section 138 of the Negotiable Instruments Act. Hence, the court below found that, the complainant failed to comply with the legal requirements before filing the complaint. The finding of the trial court is extracted hereunder: _“13. According to PW1, he received the dishonour_ ## **CRL.APPEAL No.448 of 2005 7** _memo on 14-7-99. He issued the demand notice on 15-7-99. The copy of the said notice is marked as Ext.P4. Ext.P5 is the postal receipt. The accused received the notice on 16-7-99. Ext.p6 is the postal acknowledgement card. The accused failed to repay the cheque amount within fifteen days from the date of receipt of the notice. Hence the cause of action arose on 1-8-99,ie after the expiry of fifteen days from the date of receipt of the notice. The complaint ought to have been filed within one month from the date on which the cause of action arose. To be more specific, the complaint must be filed on or before 1-9-99, The complaint herein is filed only on 17-9-99. It is filed beyond the period permissible under the statute. Hence the complaint filed u/s 142 of the Negotiable Instrument Act is not maintainable. From the above it is evident that the complainant failed to comply with all the legal requirements prior to filing this complaint. Hence point is found against the prosecution.”_ I see no reason to disagree with this finding of the trial court. 10. As far as Section 420 IPC is concerned, the trial court considered the entire aspects and found that, no offence under Section 420 IPC is made out. _“15. There is only the oral testimony of PW1_ **CRL.APPEAL No.448 of 2005 8** _that the accused borrowed Rs.60,000/- from him on 7-3-99. He would further say that the transaction took place in the house of one of his friends, by name Thrideep Kumar. But the complainant did not summon the said Thrideep Kumar to adduce evidence before court. When the transaction itself is seriously disputed by the accused the interested testimony of PW1 and production of Ext.P1 cheque alone are not sufficient to establish the transaction. There must be independent corroborative evidence to substantiate the case of the prosecution. The evidence for the prosecution lacks in this regard._ _16. Another important element to be proved by the prosecution is that the accused acted with deliberate intention to deceive the complainant and thereby to induce him to deliver money. The dishonest intention must be evident from the very inception of the alleged transaction. In the given case the cheque was returned unpaid due to closure of account. But there is no evidence as to what point of time the account of the accused was closed. If the account was closed subsequent to the issuance of Ext.P1 cheque, it can not be said that the accused acted with malafide intention to deceive the complainant. Had it been closed prior to the drawal of the cheque, there would be an indication that the accused issued Ext.P1 cheque knowing fully well that the cheque would be returned unpaid. It is matter of_ ## **CRL.APPEAL No.448 of 2005 9** _evidence. There is absolutely no material placed before court to decide at what point of time the account was closed. The complaint did not take any step to call for the records from the bank concerned. From the above, it is clear that the prosecution failed to establish the constituting elements u/s 420 IPC. In such circumstances it can not be said that the accused issued Ext.P1 cheque with dishonest intention to deceive the complainant and to induce him to deliver money. The point is found against the prosecution.”_ 11. Moreover, this Court in **Chandran K. v. Ponnappa Moothan and Another** [2012(4) KLJ 373] observed like this: _“The cheating alleged in this case is regarding the issuing of Ext.P1 concealing the fact that it was drawn on a closed account. Since Ext.P1 cheque was issued in discharge of a so called existing debt, the concealing that the account was closed at the time when the cheque was issued would not satisfy the requirement of the definition of cheating under S.415 IPC because there is no deception following the concealing. No damage or harm to the 1[st] respondent in body, mind, reputation or property was caused due to the concealing of the fact that the account was closed. There is no evidence to show that the 1[st] respondent sustained any harm or_ ## **CRL.APPEAL No.448 of 2005 10** _loss other than the inability to recover the debt which was existing when Ext.P1 was issued.”_ 12. The above judgment is squarely applicable in this case. Moreover, in the light of the evidence adduced by the prosecution, the trial court is perfectly justified in acquitting the accused. I do not think that, there is anything to interfere with the acquittal order passed by the trial court in an appeal against acquittal. The jurisdiction of the appellant court in an appeal against acquittal is limited. Considering the entire facts and circumstances of this case, I think, there is nothing to interfere with the order passed by the trial court. Hence, this Criminal Appeal is dismissed confirming the judgment dated 4.12.2004 in C.C. No.664 of 1999 of the Court of the Judicial First Class Magistrate-1, Neyyattinkara. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** ## **JUDGE**