T.C. Pankajakshan v. M.V. Bijoy and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934 CRL.A.No. 1575 of 2008 ( ) -------------------------- (CC.166/1998 of THE JUDL.FIRST CLASS MAGISTRATE, MANNARKAD) APPELLANT(S)/COMPLAINANT:: ------------------------- T.C.PANKAJAKSHAN, S/O.KUTTIKRISHNAN NAIR CHUNDAYIL HOUSE, AGALI AMSOM AND DESOM MANNARKKAD TALUK. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS/ACCUSED AND STATE:: --------------------------------- 1. M.V.BIJOY, S/O.VARKEY, PARAVALAVY, P.O.JELLIPPARA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.M/S P.VIJAYA BHANU (SR.), SRI.P.M.RAFIQ, & V.C.SARATH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1204-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A No.1575 of 2008 ----------------------------------------** Dated the 12th day of April, 2012 ## **JUDGMENT** This appeal is at the instance of the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act as he is aggrieved by the judgment dated 11.11.2002 in Crl.A.No.179/2001 of the court of Sessions, Palakkad by which the learned II Additional Sessions Judge of the lower appellate court acquitted the accused, even though the learned Magistrate of the trial court by judgment dated 17.4.2001, in C.C.No.166 of 1998 convicted the accused. 2. The case of the complainant is that the accused borrowed a sum of Rs.75,000/- and on demand , towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 26.2.98 which when presented for encashment dishonoured for want of sufficient fund and the accused has not repaid the dishonoured cheque amount in spite of a statutory notice served on him and thus according to the appellant, the accused has committed the offence punishable CRA 1575/08 **:-2-:** under section 138 of the NI Act. 3. During the trial of the case, to substantiate the case of the complainant, the complainant himself mounted to the box and got examined as PW1 and in addition to that PW2 was also examined. Besides the above, Exts.P1 to P5 documents were also proved. From the side of the defence, DW1 was examined and marked Ext.D1 Document. After having considered the evidence and materials on record, the trial court has found that the complainant has proved his case beyond reasonable doubt and accordingly, the accused is found guilty for the offence under section 138 of the NI Act and accordingly, he is convicted thereunder. On such conviction, the accused/respondent is sentenced to undergo simple imprisonment for six months and also directed to remit an amount of Rs.75,000/- and it is also ordered that, on realisation of the said amount, the same shall be given to the complainant as compensation under section 357(3) Cr.P.C. 4. Aggrieved by the above conviction and sentence, the accused who is the Ist respondent herein preferred an appeal before the Sessions Court, Palakkad and by judgment dated CRA 1575/08 **:-3-:** 11.11.2002, in Crl.A.No.179/2001, the Court of Sessions Palakkad Division reversed the order of conviction recorded by the trial court and accordingly, the accused/respondent is acquitted. It is the above finding of the lower appellate court and order of acquittal challenged in this appeal on getting leave of this court under section 378(4) of Cr.P.C. 5. I have heard Sri K.M.Sathyanatha Menon, the learned counsel appearing for the appellant and Sri P. Vijayabhanu, the learned counsel appearing for the Ist respondent/accused. I have also perused the judgments of the courts below and I have scrutinized the evidence and materials on record. 6. The learned counsel for the appellant vehemently submitted that though a statutory notice was sent to the accused, the accused did not opt to send any reply which shows that the accused accepted the case of the complainant. According to the learned counsel, the appellant/complainant produced Ext.P1 cheque, which pertained to the account maintained by the accused, from the possession of the complainant, and the accused has no explanation as to how CRA 1575/08 **:-4-:** Ext.P1 cheque reached in the hands of the complainant. Therefore, the execution and issuance of the cheque has been accepted by the accused but the lower appellate court took a contra view unsupported by any materials or evidence. It is also the case of the learned counsel for the appellant that, Ext.P1 cheque was dishonoured for the reason of insufficient fund in the account maintained by the accused and, therefore, the offence under section 138 of the NI Act is attracted in the present case. Thus, according to the learned counsel, the finding of the trial court is absolutely correct but the lower appellate court interfered with such finding and reversed the same and acquitted the accused. Therefore, according to the learned counsel for the appellant, the order of the lower appellate court is liable to be set aside and to restore the conviction and sentence recorded by the trial court. 7. On the other hand, the learned counsel for the Ist respondent/accused submitted that, regarding the transaction, absolutely there is no independent evidence. The only available evidence is that of the interested version of PW1 which is insufficient to prove that Ext.P1 cheque was CRA 1575/08 **:-5-:** executed and issued by the Ist respondent/accused. It is also the submission of the learned counsel for the Ist respondent that, the defence had succeeded in establishing that the signature contained in Ext.P1 is not that of the accused, which fact is approved by the lower appellate court after comparison of the signature that seen in Ext.p1 cheque as well as in Ext.D1. Thus according to the learned counsel for the Ist respondent, the order of acquittal recorded by the lower appellate court is supported by justifiable reasons and hence no interference is warranted. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant. In the light of the rival contentions and in the light of the evidence and materials on record , the question to be considered is whether the appellate court is justified in its finding and order reversing the order of conviction recorded by the trial court. On a perusal of the deposition of PW1, the complainant, it can be seen that the said deposition of PW1 is not satisfactory to prove that there was any transaction between the complainant and the accused. The evidence of PW1 does not disclose the exact CRA 1575/08 **:-6-:** transaction that allegedly took place. According to PW1, the amount was given during the month of November 1997 which was demanded back during the month of December 1997, i.e., on 30.12.97. Though the exact date of the availing of the loan was not mentioned , according to the complainant, the cheque was given on 30.12.97. What was the purpose of the loan and the security regarding the loan etc., with respect to those facts, the deposition of PW1 is seen silent. Though PW1 has not deposed the circumstances under which the amount was allegedly given, the defence had succeeded in bringing out from the cross examination of PW1 that, the accused was the driver of the complainant. But the said fact is suppressed by the complainant. The complainant has also not stated any of the purpose for which the amount was demanded and paid. Going by the chief examination of PW1, it can be seen that there is not a whisper regrading the execution and issuance of the cheque. The complainant has no case that he had seen the accused signing the cheque. So also, no case for the complainant that the transaction was witnessed by any person. The above aspects were not CRA 1575/08 **:-7-:** properly considered by the trial court and it was under the above factual background, the lower appellate court in paragraph 8 of its judgment has observed that , the finding of the trial court that, the accused has not adduced any evidence to show that Ext.P1 cheque was not issued by him to the complainant, is too uncharitable in a criminal trial where the prosecution has to prove the guilt of the accused. In the present case, as I indicated earlier, PW1 has no case that he had seen the accused drawing the cheque including the putting of his signature, no details of the transaction also stated. Nothing is mentioned about the execution of the cheque. Therefore, the complainant has miserably failed to prove the execution of Ext.P1 cheque. 9. The learned counsel for the appellant submitted that , the evidence on record shows that Ex.P1 cheque was dishonoured for want of sufficient funds. Even if the same is accepted for argument sake, in order to attract penal liability under section 138 of the NI Act, the holder of the cheque or the complainant has to prove that the cheque in question was duly executed by the accused or the drawer. But in the CRA 1575/08 **:-8-:** present case, there is no evidence to that effect. 10. The plea of the accused and the denial of the transaction as well as the execution and issuance of the cheuqe become relevant at this juncture. The accused has succeeded in probablising his case that he had not issued the cheque in question by examining DW1 and producing Ext.D1. DW1 has stated that the question of comparison of signature of the cheque with the specimen signature will arise only at the stage of paying the money and that stage is not reached in this case since there was no sufficient money in the account of the accused. But the defence had succeeded in showing that there is difference in the signature that contained in Ext.P1 cheque and Ext.D1 specimen signature. According to me, the said fact has got vital role in the present case, since PW1 has no case that he had seen the accused putting signature in Ext.P1 cheque, no step is taken by the complainant to prove that the signature that contained in Ext.P1 is that of the accused. As rightly pointed out by the learned counsel for the Ist respondent, this court in the decision in **Santhi v. Mary Sherly (2011(3) KLT 273),** has CRA 1575/08 **:-9-:** held that admission of signature in a cheque leaf alone will not constitute admission of execution of cheque. Similarly, in another decision reported in **Joseph v. Gladis Sasi (2010 (3) KLT 379),** this court has held that, admission of signing in a blank cheque does not amount to admission of execution of the cheque. In this case it is pertinent to note that there is no admission of the accused that, he had put his signature in Ext.P1 cheque and PW1 has also no case that he had witnessed the accused putting signature in Ext.P1. Therefore, in the light of the above decisions, it can be safely concluded, especially in the light of the facts involved in the case that, the complainant has miserably failed to prove that the accused issued Ext.P1 cheque after its due execution. The burden of the accused to explain the circumstances under which the cheque leaf reached in the hands of the complainant arises only when the complainant establishes the execution and issuance of the cheque. Therefore, the lower appellate court is fully justified in its finding about the approach of the trial court. In the light of the above discussion and the facts and circumstances indicated above, especially, CRA 1575/08 **:-10-:** the evidence of PW1 and DW1, according to me, I see no reason to interfere with the order of acquittal recorded by the appellate court, especially, when those findings and order of acquittal cannot be termed as perverse or illegal. In the result, this appeal is devoid of any merit and accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE** kvm/- CRA 1575/08 **:-11-:**