T.T. Devasia v. C.M. Mathew and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934** **CRL.A.No. 465 of 2008 ( ) ------------------------AGAINST THE ORDER IN ST.481/2006 of J.M.F.C.-I, KOTTAYAM** **APPELLANT(S)/COMPLAINANT:: -------------------------** **T.T. DEVASIA, RESIDING AT POOVAKULAM, KOZHUVANAL P.O., PULIYANNOOR, PALA.** **BY ADV. SRI.MANUEL KACHIRAMATTAM** **RESPONDENT(S)/ACCUSED::** **-----------------------** **1. C.M. MATHEW, CHOORAKKAL HOUSE, KOZHUVANAL P.O., PULIYANNOOR PALA.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SRI.M.P.MADHAVANKUTTY ADV. SMT.REMA R., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.465 of 2008** ## **------------------------------Dated this the 31[st] 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 he is aggrieved by the judgment dated 13.9.2007 in S.T.No.481 of 2006 of the court of Judicial First Class Magistrate-I, Kottayam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. Heard the counsels for the appellant and the respondent. 3. The case of the complainant is that the accused issued a cheque bearing No.880627 dated 15.12.2005 for an amount of `95,000/- to the complainant in discharge of a debt of the accused and when the said cheque presented 2 ## **Crl.A.No.465 of 2008** for encashment, dishonoured for the reason “account closed”. It is the further case of the complainant that, though he had caused to sent a lawyer notice to the accused informing him about the dishonour of the cheque and demanding payment of the amount covered by the dishonoured cheque, no amount was paid and therefore, 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 himself was examined as PW1 and produced Exts.P1 to P7 documents. The accused has got examined as DW1 and produced Exts.D1 to D7 documents. The trial court after having considered the entire evidence and materials came into the conclusion that the complainant could not prove any exceptional circumstance to receive a cheque filled by typewriting, that also without any witness for the execution and therefore the complainant could not prove beyond reasonable doubt that the accused has executed the cheque 3 ## **Crl.A.No.465 of 2008** in favour of the complainant and consequently found that the accused is not guilty under section 138 of the NI Act and thus he is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of the acquittal challenged in this appeal. 4. I have heard Sri.Manuel Kachiramattam learned counsel for the appellant, Sri.M.P.Madhavankutty learned counsel for the respondent and Smt.Rema R. learned Public Prosecutor for the State and I have perused the judgment of the trial court and gone through the evidence and materials on record. 5. Learned counsel for the appellant submitted that the learned Magistrate solely on the ground that the cheque in question filled by type-writing has held that, the complainant has not proved the execution of the cheque and according to the learned counsel, the above finding of the court below is absolutely illegal and incorrect. It is the further submission of the learned counsel that the accused 4 ## **Crl.A.No.465 of 2008** has admitted the signature in Ext.P1 cheque and therefore the trial court ought not have held that the complainant has not proved the execution of the cheque. On the other hand, learned counsel for the respondent vehemently submitted that the reasoning given by the learned Magistrate in support of his finding are correct and supported by the evidence and materials on record, and therefore no interference is warranted. 6. I have carefully considered the arguments advanced by both the counsels for the appellant and the respondent, and I have perused the evidence and materials on record. 7. 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 appellant has succeeded in making out any substantial ground so as to interfere with the findings of the court below and the order of acquittal recorded in favour of the accused. The only averment in the 5 **Crl.A.No.465 of 2008** ## complaint regarding the transaction is that, “In discharge of debt due to the complainant accused issued a cheque bearing No.880627 dated 15.12.2005 for Rs.95,000/- (Rupees Ninety Five Thousand only) drawn on the State Bank of Travancore, Kozhuvanal Branch, complainant presented the cheque for encashment through the South Indian Bank Ltd., Kozhuvanal Branch and cheque was dishonoured on 19.12.2005 due to the reason “Account Closed” and the same is intimated to the complainant on the same day itself.” Absolutely there is no averment in the complaint with respect to the transaction between the complainant and the accused and the nature of the transaction etc. In the absence of any such averment, I find no fault with the finding of the court below that the complaint is silent regarding the nature of debt. On a perusal of the proof affidavit and the admission of the complainant during his cross examination it can be seen that, according to the complainant, the accused had borrowed money from the complainant on execution of two promissory notes and by way of gold loan, and the amount involved in this case is the amount connected with the promissory notes. Suffice to 6 ## **Crl.A.No.465 of 2008** say, no promissory note is produced in this case to prove the transaction as claimed by the complainant. According to me, the non-production of the promissory note, as far as the complainant is concerned, which is a vital document to prove the transaction, goes against the complainant. Though the counsel submitted that those promissory notes were returned to the accused on receiving the cheques, the said claims are not supported by any material or evidence. 8. It is also relevant to note that Ext.P1 cheque is filled by typing on it and the complainant has no case that he had witnessed the execution of the cheque except signing on it. The trial court refused to believe the above version of the complainant. The trial court has specifically found that even as per the admission of the complainant during his cross examination, it has revealed that the complainant has filed O.S.No.277 of 2001 before the Munsiff's court, Pala, against the accused for realising the amount under the gold loan and the said suit was 7 **Crl.A.No.465 of 2008** dismissed. According to the complainant, Ext.P1 cheque in the present case was issued after the dismissal of the above suit. So the circumstances under which Ext.P1 cheque claimed to have issued by the accused are not free of doubt, since no man would have prepared to issue a cheque warranting criminal liability, after getting relief from a civil court. It is also relevant to note that to prove the execution, there is no other independent witness, except the interested version of the complainant. It is in this juncture, the case set up by the accused become relevant. According to the accused, two signed blank cheques had been received by the complainant from him, connected with the gold loan transaction. It is also admitted by the complainant that the cheque for an amount of `72,000/-, already issued by the accused earlier, had been dishonoured for the reason that “account closed”. So according to the learned Magistrate, it is highly doubtful that the complainant could have received again a cheque having the subsequent serial 8 ## **Crl.A.No.465 of 2008** number in the very same cheque book pertained to the same account for `95,000/-. It is has also found by the learned Magistrate that the cheque is typed and filled, is another circumstance casting doubt regarding its genuineness. Thus, on a close perusal and consideration of the entire evidence and materials on record, it can be seen that the complainant has no specific case in the complaint about the circumstance or regarding the transaction, under which the cheque in question reached in his hand. The admission of the complainant further shows that Ext.P1 cheque was allegedly issued by the accused after dismissal of the suit filed by the complainant against the accused which claim of the complainant is quite unbelievable. Further, the execution of Ext.P1 cheque and the receipt of the same are not proved beyond reasonable doubt, especially when an earlier cheque for `72,000/- was dishonoured for the reason that “account closed” and particularly when Ext.P1 cheque belonged to the said 9 ## **Crl.A.No.465 of 2008** account. To prove the execution of the cheque, no convincing evidence and explanation are forthcoming from the part of the complainant that, why the cheque is filled up by typing it. So the learned Magistrate is perfectly justified in his finding that the complainant has miserably failed to prove beyond reasonable doubt that the accused had executed cheque in his favour. Thus, the findings of the court below, according to me, are supported by the evidence and materials on record and therefore those findings cannot be treated as perverse or illegal so as to interfere in an appeal, against the order of acquittal. 10. 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 appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the 10 **Crl.A.No.465 of 2008** 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, 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 the 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