Sibi Mathew v. K.V. KuriaKose and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934 CRL.A.No. 2426 of 2007 (C) -------------------------- (CC.347/2003 of J.M.F.C. ETTUMANUR) APPELLANT/COMPLAINANT: --------------------- SIBI MATHEW, PULPARAYIL HOUSE, MANJOOR P.O. BY ADV. SRI.C.RAJENDRAN RESPONDENTS/ACCUSED & STATE: ---------------------------- 1. K.V. KURIAKOSE, KAKKAPPARA HOUSE, KARIKKATTOOR P.O., MANIMALA KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULA,M. BY ADV. SRI.KOSHY GEORGE BY ADV. SRI.ALEX GEORGE BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A No. 2426 of 2007 ----------------------------------------** Dated the 2nd day of July, 2012 ## **JUDGMENT** The complainant, in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, is the appellant herein as he is aggrieved by the judgment dated 17.9.2007 in C.C.No.347 of 2003 of the court of Judicial First Class Magistrate, Ettumanoor, by which the learned Magistrate acquitted the accused under section 255(1) Cr.P.C. 2. The case of the complainant is that he is engaged in Joint stock business and the accused having business transaction with him and a total sum of Rs.3,06,707/- was due from the accused to the complainant and towards the part payment, the accused issued Ext.P1 cheque dated 16.6.2002 which when presented for encashment, returned unpaid for the reason payment stopped by drawer and according to the complainant, though a statutory notice was sent and served on the accused, no amount is paid and therefore, the accused has committed the offence punishable under section 138 of the NI CRL.A. 2426/07 ## **:-2-:** Act. To prove the case of the complainant , he himself mounted to the box and deposed as PW1. Exts.P1 to P9 documents were also produced. From the side of the defence, the accused himself was examined as DW1 and produced Exts. D1 to D6 documents. The trial court, after considering the entire evidence and materials, found that Ext.P1 cheque produced is not issued by the accused for any legally enforceable liability from the accused due to the complainant and moreover, the cheque in question produced is materially altered and therefore, the provisions of Section 138 of the NI Act is not attracted. On the basis of the above finding, the accused is acquitted under section 255(1) Cr.P.C and it is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri C.Rajendran, the learned Counsel for the appellant and Sri Koshy George, the learned counsel appearing for the Ist respondent. 4. The learned counsel for the appellant submitted that the trial court is wrong in finding that the complainant failed to prove that he was a stock exchange broker. The documents, i.e., Ext.P1 to P9 shows otherwise. It is also the submission of the CRL.A. 2426/07 ## **:-3-:** learned counsel that the finding of the learned Magistrate that the complainant failed to prove the liability of the accused is incorrect and against the facts. It is also the submission of the counsel that it was for the accused to prove that the cheque in question was given as security. But the learned Magistrate failed to consider the above aspect. It is also the submission of the learned counsel that the accused manipulated the documents in the bank to the effect that he had already issued stop memo and he was having sufficient amount in the account to honour the cheque. Challenging the finding of the learned Magistrate regarding the material alteration of Ext.P1 cheque, it is the submission of the learned counsel that , had there been any material alteration in Ext.P1 cheque, the same would have been returned on that reason itself. But the court below failed to understand the above position. According to the counsel, the accused did not deny the transaction with the complainant and therefore, the burden on the accused is heavy to prove that the cheque was issued on an earlier occasion as a security and not for discharging any liability. Thus according to the learned counsel, the finding of the court below is not sustainable either CRL.A. 2426/07 ## **:-4-:** legally or factually. On the other hand, the counsel for the Ist respondent submitted that on the basis of the available materials, the defence had succeeded in making out a probable case. Therefore, even Ext.P1 cheque contained the signature, the same is not sufficient to show that the accused had executed and issued the cheque connected with any liability due to the complainant. It is also the submission of the learned counsel that there is material alteration in the cheque and therefore Ext.P1 has lost its sanctity as a cheque as contemplated by the provisions of the NI Act. Thus according to the learned counsel for the Ist respondent the trial court is fully correct in its finding and no interference is warranted especially when the appellant has miserably failed to make out any exceptional circumstance to interfere with the order of acquittal. 5. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the first respondent. I have also perused the judgment and the evidence and the materials on record. The specific case of the complainant is that there was business transaction between the complainant and the accused and towards the part payment of CRL.A. 2426/07 ## **:-5-:** the total amount due to the complainant , the accused issued Ext.P1 cheque for an amount of Rs.50,000/- and when the said cheque presented for encashment , the same was dishonoured for he reason that payment stopped by the drawer. Whereas the case of the defence is that he had given 4 cheques including the cheque in question and thus the cheques were given as security putting the signature of the accused. According to the accused, for selling the shares of the accused, the complainant was entrusted with some shares and the cheque. But the complainant by selling the shares purchased new shares in the name of the accused. According to the accused, for the purpose of purchasing the shares on credit, Ext.P1 was also given as security. It is the specific case of the defence that the complainant misused the same by filling the cheque without any authority and produced at his convenience and filed the present case. Therefore, according to the accused, the cheque is not supported with consideration. The specific case taken by the defence from the very beginning of the proceedings is discernible from the reply notice itself. According to the accused, the cheque in question was given as security on CRL.A. 2426/07 ## **:-6-:** 7.6.2000 and thereafter, when the accused demanded for the settlement of the account in the share transaction, the complainant made false statement of account and therefore the accused gave a stop memo with respect to the cheques given by the accused. In this juncture, it is relevant to note that Ext.P4 notice is dated 7.9.2002 whereas Ext.D4 copy of the request for the stop payment would show that such a request was made as early as on 10.9.2001. It is also relevant to note that in Ext.D4 letter, it is specifically requested the bank authorities to stop the payment of cheque Nos. 18230, 18753, 19236 and 19475. Among the above four cheque numbers, Cheque No.18230 is with respect to Ext.P1. From the above documents itself, it is clear that Ext.P1 was not given towards the discharge of any liability due to the complainant as claimed by him. Thus the complainant has miserably failed to prove that Ext.P1 cheque was issued after its due execution, towards the discharge of any liability due to the complainant. 6. It is also relevant to note that the learned Magistrate after physical verification of Ext.P1 has found that the cheque itself is materially altered for the year 2002. According to the CRL.A. 2426/07 ## **:-7-:** learned Magistrate, the last '2' having over writing to the effect that '1' as well as '2'. Therefore, there is material alteration in Ext.P1. It is also relevant to note that in Ext.P1 cheque, nobody had approved the correction or overwriting and those facts were established. Hence, in view of Section 87 of the NI Act, Ext.P1 is rendered as void due to material alteration. Therefore Ext.P1 cannot be treated as a valid cheque for the purpose of Section 138 of the NI Act and to fix penal liability thereon. Therefore, the learned Magistrate is fully justified in his finding that Ext.P1 cheque is a materially altered one. In the light of the above discussions and the evidence and materials referred to above, it can be seen that the learned Magistrate refused to accept the case of the complainant regarding the transaction and the liability and execution and issuance of the cheque as claimed by the complainant. The learned Magistrate has assigned several reasons on the basis of the materials and evidence and therefore, it cannot be said that those findings are perverse or illegal. While reiterating the appellate jurisdiction and the powers of the appellate court, the Apex Court has held in **State of Rajasthan v. Darshan** CRL.A. 2426/07 **:-8-:** **Singh @ Darshan Lal** (2012 (4) Supreme 72), that, unless there are compelling reason or exceptional cases, or where the impugned judgment is a perverse one, the appellate court shall not interfere with the order of acquittal recorded by the trial court since the order of acquittal bolsters the presumption of innocence. In the present case, the appellant has miserably failed to make out any exceptional case or compelling circumstances to interfere with the order of acquittal recorded by the trial court. In the result, there is no merit in the appeal and accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE** **kvm/-** ## CRL.A. 2426/07 **:-9-:** kvm/-