SIMI ANNIE v. VIJAYA VISWANATHA PAI @ GEETHA and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 3RD DAY OF DECEMBER 2014/12TH AGRAHAYANA, 1936** ## **Crl.L.P..No. 313 of 2014 ()** **----------------------------** ## **AGAINST THE ORDER/JUDGMENT IN CC 2133/2010 of JUDICIAL FIRST CLASS MAGISTRATE-V, ERNAKULAM DATED 30-06-2014** ## **PETITIONER(S)/COMPLAINANT:** **--------------------------------------------------** **SIMI ANNIE AGED 24 YEARS D/O.GEORGE, PUNJEPPADY HOUSE ST.FRANCIS XAVIER'S CHURCH ROAD, KALOOR, KOCHI.** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENT(S)/ACCUSED & STATE:** **------------------------------------------------------------** ## **1. VIJAYA VISWANATHA PAI @ GEETHA** **ALUNGAPPARAMBIL HOUSE, N.43/K 2812(1) SOUTH JANATHA ROAD, KARANAKKODAM, KOCHI-682025.** ## **2. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM-682031.** ## **R2 PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 4.11.2014 , THE COURT ON 3.12.2014 PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ================== ## Crl.L.P.313 of 2014 ================== Dated this the 3[rd] day of December, 2014 O R D E R This application has been filed before this Court to impugn the judgment of the Judicial First Class Magistrate's Court-V, Ernakulam, in Calendar Case, C.C.No. 2133/2010 whereby the accused has been acquitted under Sec. 255(1) of the Cr.P.C. The Calendar Case arose out of a private criminal complaint instituted by the petitioner/complainant alleging that the accused herein had committed the offence under Sec.138 of the Negotiable Instruments Act for the alleged dishonour of the cheque in question for an amount of Rs. 3 lakhs. On the vital point as to whether the accused had issued the cheque in question to the complainant for discharging a legally enforceable debt or liability, the court below concluded that the version projected by the complainant lacks credibility or believability as regards the very transaction in question between the parties and that accordingly, this crucial point was held against the complainant leading to the finding that the accused is CRL.L.P.313/14 - : 2 :- not guilty under Sec. 138 of Negotiable Instruments Act. It has come out in evidence that the accused is earning her livelihood by domestic household work, presumably as a maid. It is admitted by PW1 (complainant) that the accused had some transactions with one Smt.Laly, who is the complainant's mother's sister. It is the case of the accused, as brought out through the suggestions in the cross examination, that the accused had borrowed certain amounts from Smt.Laly and that towards the security of the said debt, the accused had given blank signed cheques to Smt.Laly and that the said cheques have been misused by the complainant and by her father in filing the present complaint by the complainant and another case as C.C.No.2132/2010 against the accused, by the complainant's father. It is also admitted by PW-1 that her father has initiated in criminal case against the accused for dishonour of another cheque, which has led to C.C.No. 2132/2010 on the file of the court below. It is the accused's specific case that no amount is actually due to be paid by the accused to the complainant and she has not executed and issued any cheque in favour of the complainant. In the cross examination PW-1 has further deposed that she has not seen the accused executing the cheque, but that she had handed over Ext.P-1 cheque to her. It CRL.L.P.313/14 - : 3 :- is also admitted by PW-1 in cross examination that the ink in which the signature in Ext.P-1 cheque is entered is different from the ink used in the other writings which are made in Ext.P-1 cheque and that Ext.P-1 cheque in the manner as it is now available was actually handed over by accused to her. As regards the source of the amount of Rs.3 lakhs, which is the subject matter of Ext.P-1 cheque, PW-1 (complainant) stated that the amount of Rs. 3 lakhs given by her to the accused was by cash and when pointedly the exact source of this money was queried, PW-1 has stated that the said amount of Rs. 3 lakhs was not withdrawn by her from any bank and that it was available in her hand in cash and that during 2004-2009 she employed in a bank and was earning Rs. 15,000/- per month and that the said amount accumulated to Rs. 3 lakhs without depositing in any bank and it was available in her hand and the said money of Rs. 3 lakhs was thus raised by her and handed over the the accused. PW-1 also admitted that currently she is not having any employment. The court below on a meticulous analysis of the evidence came to the considered conclusion that the version projected by the complainant about the very transaction in question and about her source by raising the money in the manner suggested CRL.L.P.313/14 - : 4 :- by PW1 as above said, is not believable or credible. The court below opined that PW-1, who is currently unemployed was having an amount of Rs.3 lakhs at hand in the manner suggested by PW-1 and that it is not believable that she could have raised Rs. 3 lakhs in the manner suggested by her at the time of the transaction in question and in her having given such a large amount without obtaining any security from the accused. Moreover, this is also to be appreciated in the context of the factual aspect that has come out in evidence that the accused was earning a livelihood by domestic house hold work as a maid and that she had certain other transactions with one Smt.Laly, who is the complainant's mother's sister and also to take into account her case that she had in fact given some blanked signed cheques to the above said Smt.Laly in respect of that transaction. The difference in the ink used in the writings made in the cheque, compared to the used in the signature part of the cheque, is also to be appreciated in the context of the above said aspects. The conclusion reached by the court below regarding the lack of credibility in the case projected by PW-1 about her having raised Rs. 3 lakhs in the manner projected by PW-1, cannot be said to be unreasonable or perverse finding. It is not believable or CRL.L.P.313/14 - : 5 :- credible version that the complainant would have actually kept the entire savings arose out of her claimed monthly earnings of Rs. 15,000/- per month so as to keep the said amount in the house until the savings have come to Rs. 3 lakhs at the time when the amount was given to the accused. Therefore, the court below cannot be said to have made an unreasonable or perverse finding in coming to the considered conclusion that the very transaction and the source of money claimed by PW-1 is not worthy of much belief or credence. In the case John K.Abraham v. Simon C. Abraham reported in 2013 (4) KHC 835 (SC), the Apex Court has held that “in order to draw the presumption under sections 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant”. Moreover, the mere proof of the fact that the signature appearing in the cheque is that of the accused, will not lead to the conclusion that the cheque has in fact been executed and issued by the accused to the complainant. Since the basic version projected by the complainant regarding the transaction and the crucial aspect CRL.L.P.313/14 - : 6 :- regarding her source of such money has been found to be not believable or credible by the court below, the acquittal rendered by the court below due to these aspects, cannot be faulted with by this Court. 2. In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in 2012(4) Supreme 72, the Apex Court has held as follows:- “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.” Further, in the case Pudhu Raja and another Vs. State reported in [(2013) 1 SCC (Cri) 430], the Apex Court has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. In this view of the matter, on an examination of the findings of the court below in the light of the decisions of the Apex Court cited supra, even if an appeal is entertained, there is little scope of CRL.L.P.313/14 - : 7 :- interfering with the considered finding of acquittal rendered by the court below. Therefore, there is no point in entertaining this application for leave and accordingly, the Leave Petition stands dismissed. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge