T.K. Sheeba v. Sujatha and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 10TH DAY OF DECEMBER 2012/19TH AGRAHAYANA 1934** **CRL.A.No. 393 of 2007 ( )** **------------------------AGAINST THE ORDER IN CC.104/2004 of J.M.F.C.-IV, KOZHIKODE, DTD.18.7.2006** **APPELLANT(S)/COMPLAINANT:** **------------------------** **T.K.SHEEBA, AGED 31 YEARS, D/O MUHAMMED UMMER,"SHAMILGHAR" JAWAHAR NAGAR HOUSING COLONY, ERANHIPALAM KOZHIKODE.** **BY ADV. SRI.AVM.SALAHUDIN** **RESPONDENT(S)/ACCUSED AND STATE:** **--------------------------------** **1. SUJATHA, AGED 43 YEARS,** **D/O.AYYAPPAN, ADAB, KERALA BHAVAN NIRMANA** **SAHAKARANA SANGHAM FLAT, ERANHIPALAM, KOZHIKODE.** **2. STATE OF KERALA REPRESENTED BY** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SMT.S.HYMA, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.393 of 2007** ## **------------------------------Dated this the 10[th] day of December, 2012.** ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since she is aggrieved by the judgment dated 18.7.2006 in C.C.No.104 of 2004 of the court of Judicial First Class Magistrate-IV, Kozhikode, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that towards the discharge of a legally enforceable debt, the accused executed and issued Ext.P1 cheque, for an amount of `1,76,500/-, which when presented for encashment dishonoured for the reason, 'funds insufficient'. It is the further case of the complainant that, though statutory 2 ## **Crl.A.No.393 of 2007** notice was served on the accused demanding the repayment of the amount covered by the dishonoured cheque, no payment was made and thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, the complainant was examined as PW1 and produced Exts.P1 to P6(b) documents. Though no witness was examined from the side of the defence, Ext.D1 was marked. After considering the entire evidence and materials, the learned Magistrate has found that Ext.P1 cheque was not issued to discharge any legally enforceable debt. On the other hand, it has found in favour of the accused that the defence was able to prove that Ext.P1 cheque has not been issued for the discharge of a legally enforceable debt. Accordingly, the accused was acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal. 3. I have heard Adv.M.Salahuddeen, learned counsel 3 ## **Crl.A.No.393 of 2007** for the appellant and Sri.R.Sudheesh for R1 and Smt.S.Hyma, learned Public Prosecutor for R2. 4. Learned counsel for the appellant vehemently submitted that, the observation and findings of the court below regarding the absence of averments in the complaint are absolutely incorrect and unwarranted. According to the learned counsel, the details of the debt need not be pleaded in the complaint. It is also the submission of the learned counsel that, when the complainant was examined as PW1, she had adduced evidence with respect to the transaction, under which Ext.P1 cheque was executed and issued in favour of the complainant, but the learned Magistrate has failed to appreciate the said evidence of the complainant and went wrong in holding that the complainant has failed to substantiate the specific and particular debt set up by the complainant against the accused. It is also the submission of the counsel that, the accused has admitted the execution and issuance of the cheque and therefore the learned 4 ## **Crl.A.No.393 of 2007** Magistrate is wrong in not extending the presumption under section 139 of the NI Act in favour of the complainant. Thus, according to the learned counsel, the judgment of the trial court is liable to be interfered with and the order of acquittal is liable to be set aside. 5. Whereas the counsel for the respondent strenuously submitted that, though the complainant has miserably failed in making appropriate averment in the complaint during the trial, he had advanced a case with respect to the property transaction but even that transaction is not properly proved and as such, the complainant has miserably failed to prove the transaction connected with Ext.P1 cheque. It is also the submission of the learned counsel that, the accused has got a specific and definite plea as to how Ext.P1 cheque reached in the hands of the complainant and the said fact is substantiated through the evidence of PW1-herself and thereby the accused has discharged its burden under section 139 of the NI Act to rebut the presumption. 5 ## **Crl.A.No.393 of 2007** Therefore, the learned Magistrate is correct in his finding that the complainant is not entitled to get the presumption under section 139 of the NI Act. Thus, according to the learned counsel, no interference is warranted with respect to the findings of the court below and the order of acquittal. 6. I have carefully considered the arguments advanced by the counsel for the appellant as well as the respondent and I have perused the judgment in question and also gone through the evidence and materials on record. 7. In the light of the rival contentions advanced by the learned counsel for the appellant as well as the respondent and in the light of the evidence and materials on record, the question to be considered is whether the appellant has succeeded in substantiating the challenge against the findings of the court below and whether succeeded in making out any compelling circumstance to interfere with the order of acquittal recorded by the trial court. The specific case of the complainant is that the accused 6 ## **Crl.A.No.393 of 2007** executed and issued Ext.P1 cheque to discharge a legally enforceable debt due to the complainant, whereas the case of the defence is that Ext.P1 cheque, in its blank form, was issued to the husband of the complainant towards the price of the goods and the same was misused by the complainant for the purpose of the present prosecution. As rightly found by the learned Magistrate, there is no specific averment either in the complaint or in Ext.P4 notice, with respect to the debt connected with Ext.P1 cheque allegedly issued by the accused. It is true that, in a prosecution for the offence under section 138 of the NI Act, the complainant need not state the minute details of the transaction with respect to the debt connected with the execution and issuance of the cheque, but that does not mean that the complainant has no duty to state the minimum facts required to constitute the transaction, under which the cheque in question was issued. I have gone through the complaint. There is no whisper with respect to 7 ## **Crl.A.No.393 of 2007** the transaction between the complainant and the accused. Though not even minute details are stated, the complainant is expected to state, atleast generally, the nature of the transaction and the connected facts which lead to the issuance of the cheque. In the present case, there is no such averment in the complaint and no particulars are stated in Ext.P4 notice. However, it is relevant to note that during the evidence stage, the complainant has filed an affidavit in lieu of chief examination, wherein it has stated that the cheque in question was issued to discharge the liability connected with a property deal. The learned Magistrate, in paragraph 12 of his judgment, has elaborately considered the evidence of PW1 with respect to the property transaction. By assigning numerous reasons, to disbelieve the case of the complainant regarding the property transaction, the learned Magistrate has finally found that, in such circumstance, the prosecution cannot rely upon the presumption under section 139 of the NI Act. 8 ## **Crl.A.No.393 of 2007** The attempt, according to me, made by the complainant during the stage of evidence, though there was no specific pleading and averment in the complaint about those facts connected with the property transaction, that Ext.P1 cheque was issued towards the discharge of liability connected with a property dealing, has also not been proved and substantiated. Therefore, according to me, the learned Magistrate is fully justified in his finding that the complainant is not entitled to get the presumption under section 139 of the NI Act. 8. In this case, it is pertinent to note that the accused has got a specific case and explanation as to how Ext.P1 cheque, which belongs to the account of the accused, reached in the hands of the complainant. According to the defence, the accused has purchased some carpets from the shop of the complainant's husband and the blank cheque, which was issued for that purpose, is mis-utilised for the purpose of the present complaint. The learned Magistrate 9 ## **Crl.A.No.393 of 2007** has specifically found that, during the cross examination of PW1, she had also admitted that the letter pad of the business establishment of the husband and that as per the said bill it is seen that a carpet having the value of `6,000/was sold to the accused. In this juncture it is relevant to note that, in the complaint, as I indicated earlier, there is no specific pleading and averment from the side of the complainant with respect to the transaction which lead to the issuance of Ext.P1 cheque. During the evidence stage, though there is no averment in the complaint, the complainant came with a case to the effect that Ext.P1 cheque was issued connected with the property dealing between the complainant and the accused. That case also, has not substantiated by adducing any cogent and satisfactory evidence. It is in this backdrop, the admission of the complainant has to be considered with respect to the letter pad of the business establishment of the husband and the purchase of the carpet etc. has to be examined. Thus, 10 ## **Crl.A.No.393 of 2007** according to me, the trial court is fully justified in holding that the accused had succeeded in discharging her burden by rebutting the presumption through preponderance of probability. Suffice to say, the accused, to discharge her burden under section 139 of the NI Act, need not prove her case beyond reasonable doubt as in the case of the complainant. Thus, going by the judgment of the trial court and the evidence and materials, it can be seen that the trial court has came into its specific finding based upon the evidence and materials on record and therefore it cannot be said that the findings of the court below are perverse or illegal. 9. In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: “In exceptional cases where there are compelling circumstances and the judgment under 11 **Crl.A.No.393 of 2007** 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.” Therefore, on examination of the facts and circumstances involved in the present case and in the light of the dictum laid down by the Honourable Apex Court, I am of the view that, the appellant has miserably failed to substantiate her challenge against the impugned judgment of the trial court. No exceptional cases or compelling reasons are made out to interfere with the order of acquittal recorded by the trial court in favour of the accused. Therefore, I find no merit in this appeal and accordingly, the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge