Subash v. Sunil Lal & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933** ## **CRL.A.No. 955 of 2004 ( )** **------------------------CC.446/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT V (SPL.COURTMARKLIST CASES), THIRUVANANTHAPURAM** **..........** ## **APPELLANT(S)/COMPLAINANT::** **-------------------------------------------------** **SUBASH, S/O. KUNJU SANKARAN, POURNAMI MUTHIYAVILA, VEERANKAVU VILLAGE, NEDUMANGADU TALUK.** **BY ADVS.SRI.K.SATHEESH KUMAR SRI.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE** **RESPONDENT(S)/ACCUSED & STATE::** **----------------------------------------------------------** **1. SUNIL LAL, S/O. C.SUJATHA, COMPANIVILA VEEDU, BHAGAVATHI NADA, POONKODE, THIRUVALLA, TRIVANDRUM.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS.SRI.T.KURIAKOSE PETER SRI.K.VINODKUMAR SRI.ABRAHAM P.GEORGE R2 BY PUBLIC PROSECUTOR SRI. SREEJITH V.S.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** **N.K.BALAKRISHNAN, J. -------------------------------Crl.A. No.955 of 2004 -----------------------------Dated this the 2[nd] day of February 2012** ## **J U D G M E N T** The complainant challenges the verdict of acquittal given by J.F.C.M.-V, Thiruvananthapuram in a case filed under Sec.138 of N.I.Act. The case of the complainant is that the accused/first respondent had borrowed from him `1,00,000/on 15.1.2001 and to discharge that debt Ext.P1 cheque was issued. When it was presented for encashment it was dishonoured on the ground of insufficiency of fund. Statutory notice was sent, to which a reply was sent by the accused denying the averments contained in the notice and also denying the liability to pay the amount. 2. The complainant was examined as PW1 and Exts.P1 to P8 were marked. DWs.1 and 2 were examined and Exts.D1 to D3 were marked. 3. Learned Magistrate found that Ext.P1 cheque was not issued to discharge any debt/liability as alleged by the Crl.A. No.955 of 2004 -: 2 :- complainant. The case advanced by the accused that a signed blank cheque leaf was obtained by the complainant when the mother of the accused had borrowed `20,000/- from the complainant in 1998 and that the signed blank cheque leaf given by the accused in 1998 was misused by the complainant was found to be more probable and acceptable and hence the accused was acquitted. 4. Learned counsel for the complainant would submit that the court below went wrong in relying upon the evidence given by the accused and DW2, the mother of the accused since they are highly interested witnesses who wanted to avoid payment of the amount by puttingforth a story that DW2 had borrowed `20,000/- in 1998. The court below also should not have been persuaded to rely upon the complaint given by the accused to the Vanitha Commission. It is further argued that the evidence given by the complainant that Ext.P1 was signed by the accused and after that it was filled up by the accused himself should have been accepted by the learned Magistrate. Hence, according to the learned counsel, the Crl.A. No.955 of 2004 -: 3 :- order of acquittal passed by the court below is liable to be reversed. 5. Ext.P1 bears the date 6.6.2001. Though PW1 has stated that Ext.P1 was filled up by the accused, that was denied by the accused when examined as DW1. It is pointed out that the signature of the accused appearing on Ext.P1 and other handwritings appearing in Ext.P1 are not of the same person, it is contended. It is also pointed out that date of the cheque which now appears to be 6.6.2001 also is seen to have been over written. According to PW1, the sum of `1,00,000/was lent by him to the accused on 15.1.2001 but it was not specifically stated in evidence as to when Ext.P1 was signed and issued to him. It was not stated that Ext.P1 was a post dated cheque. Even if it is a post dated cheque, if it is proved to have been executed by the accused to discharge a debt/liability then, it is perfectly enforceable. In this connection, it is pointed out that even at the earliest point of time, when statutory notice was received Ext.P4 reply was sent narrating the whole incident. According to the accused, Crl.A. No.955 of 2004 -: 4 :- his mother (DW2) had borrowed from the complainant `20,000/- and towards that transaction a sum of `12,000/- was due. Therefore, the accused contended that if as per the earlier transaction itself the accused was liable to pay `12,000/- to the complainant it is highly improbable that the complainant would have lent `1,00,000/- to the accused. As pointed out above, the statement given by PW1 that Ext.P1 was completely filled up by the accused himself does not appear to be acceptable. 6. It is also seen that a complaint was given by DW2, the mother of the accused to the Chairman, Vanitha Commission. That complaint was sent on 16.1.2001. In that complaint itself, reference was made about Ext.P1 cheque. The allegation made in Ext.D1 is that the complainant had taken two signed blank cheque leaves and also signed blank stamp papers from the accused for the amount, the mother of the accused had borrowed from the complainant. Even in Ext.D1 (the complaint dated 16.1.2001 given to Vanitha Commission) mention was made about Ext.P1 cheque. That Crl.A. No.955 of 2004 -: 5 :- would probabilise the case of the defence that mother of the accused owed some amount to the complainant and at that point of time, signed blank cheque leaves of the accused (the son of DW2) were obtained as a security for the amount alleged to be due from DW2. That according to the defence appears, more reasonable and probable, in view of the fact that even in Ext.D1 dated 16.1.2001 such a contention was raised specifically mentioning the number of Ext.P1 cheque. 7. The learned counsel for the appellant would submit that the inconsistency of the case advanced by the accused can be seen from Ext.P4, the reply notice sent on behalf of the accused and the evidence given by DW.1 and DW.2 was not properly considered in the trial court. The learned Magistrate has stated that the accused has offered an explanation as to how slight indiscrepancy happened to be there in the reply notice sent by the Advocate. It was stated that the Advocate who prepared Ext.P4 did not properly explain what was narrated by the accused. What ever that be, there is no such inconsistency which will demolish the case Crl.A. No.955 of 2004 -: 6 :- of the defence altogether. The only inconsistency in Ext. P4 is that the statement therein was that the earlier borrowal of `1 lakh was made by the accused himself and not by his mother. The fact that cheque bore the number No.954959 issued was not disputed. But the case of the defence is that it was issued when the amounts were borrowed in 1998. The specific case advanced even in Ext.P4 was that the amount due to the complainant was paid by issuing the cheque which in fact was encashed by the complainant. It is also submitted by the learned counsel for the appellant that the court below was persuaded to hold against the complainant since at that time the suit filed by him had been dismissed for default. Subsequently that suit was restored to file. The learned counsel submits that thereafter, the suit was decreed in favour of the complainant. The judgement rendered by the civil court is not conclusive. It does not preclude the criminal court from deciding the issue independently based on the evidence let in the criminal case. See the decision in **Premsankar** v. **I.G. of Police** [2002 (3) KLT 389 SC] and Crl.A. No.955 of 2004 -: 7 :- **Prathiba** v. **Rameswari Devi** [2008 (1) SCC (Cri.) 399]. The specific case of the complainant was that the cheque was issued only on 15.02.2001 putting the date as 06.06.2001. But that cheque number 954959 was mentioned in Ext.D3 sent on 16.01.2001 itself. It was received in the office of the Kerala Vanitha Commission as can be seen from the seal and the signature put by one of the officials of that office. Therefore, it is contended by the defence that the whole case set-up by the complainant that the money was paid on 15.01.2001 and that the cheque was issued on 15.02.2001 cannot be accepted at all. No witness was also examined to prove the lending of the money or the execution of the cheque. It is a case where the accused and his mother mounted the witness box to state the case of the accused. The probability factor lies in favour of the case advanced by the accused. 8. A request was made by the learned counsel for the complainant that the matter may be remanded to the trial court to give an opportunity to the complainant to adduce Crl.A. No.955 of 2004 -: 8 :- further evidence. I find no reason to allow that request also. In the result this Criminal Appeal is dismissed confirming the order of acquittal passed by the trial court. **N.K.BALAKRISHNAN, JUDGE.** Jvt/Smvd