V. Krishna Kumar v. Saroja Menon and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934** **CRL.A.No. 1983 of 2009 ( )** **-------------------------AGAINST THE ORDER IN CC.565/2003 of ADDL.C.J.M., ERNAKULAM, DTD.13.3.2008** **APPELLANT(S)/COMPLAINANT: -------------------------** **MR. V.KRISHNAKUMAR, S/O VISWANATHA PANICKER, KILIYANTHARA PARAMBU KANNANKULANGARA, THEKKUMBHAGAM, THRIPPUNITHURA.** **BY ADVS.SRI.P.GOPINATH SRI.R.RAJESH** **RESPONDENT(S)/ACCUSED & STATE: ------------------------------** **1. MRS. SAROJA MENON, THEKKUMTHARAYIL HOUSE, P.O.PUTHENPALLY, 680103 GURUVAYOOR, THRISSUR.** **2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY ADV. SRI.D.ANIL KUMAR FOR R1 SMT.LALIZA T.Y., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.1983 of 2009** ## **------------------------------Dated this the 13[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 he is aggrieved by the judgment dated 13.3.2008 in C.C.No.565 of 2003 of the court of Additional Chief Judicial Magistrate-Ernakulam, 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 by the mid of June 2002, the accused approached the complainant for a loan of `3,50,000/- with a specific understanding that the amount will be returned within three months and accordingly the complainant gave `3,50,000/- to the accused and simultaneously the accused signed and issued 2 ## **Crl.A.No.1983 of 2009** a post dated cheque bearing date as 24.9.2002 for an amount of `3,50,000/- drawn from the account of the accused with account no.32102 of Canara Bank, Guruvayoor Branch. It is the further case of the complainant that when the said cheque presented for encashment, the same dishonoured for the reason that the account maintained by the accused was closed and though the complainant has sent registered notice to the accused, no payment was made and therefore the accused has committed the offence punishable under section 138 of the NI Act. The complainant himself was examined as PW1 and produced Exts.P1 to P7 documents. The accused herself got examined as DW1 but no document was adduced. The learned Magistrate has found that the accused has got a consistent case right from the issuance of reply notice and the learned Magistrate was refused to believe the complainant that he was holding the amount of `3,50,000/in his almirah ever since 1996 onwards to use it for urgent necessity, as the same was not convincing. It has also found 3 ## **Crl.A.No.1983 of 2009** by the learned Magistrate that the complainant has failed to prove the execution of Ext.P1 cheque which is a type written one. It is on the basis of the above finding, the learned Magistrate acquitted the accused under section 255 (1) of Cr.P.C. 3. Heard Sri.P.Gopinath Menon learned counsel for the appellant and Sri.D.Anilkumar learned counsel for R1. 4. Learned counsel for the appellant submitted that the complainant has established his case against the accused by adducing cogent evidence mainly through the deposition of PW1 and producing Ext.P1 cheque from his possession. It is the further submission of the counsel that the learned Magistrate erroneously held that the case of the complainant that he was keeping `3,50,000/- in his possession is not convincing. It is the further submission of the counsel that, as the accused has admitted the signature in Ext.P1 cheque the finding of the court below that the complainant failed to prove the execution of Ext.P1 cheque, is incorrect and liable to be set aside. The learned counsel 4 ## **Crl.A.No.1983 of 2009** further submitted that one more opportunity may be given to the complainant to clarify the doubt of the learned Magistrate, as to whether the accused was maintaining an account or not. Thus, according to the learned counsel, the findings of the court below are against the facts, evidence and circumstances involved in the case and are liable to be interfered with. 5. On the other hand, counsel for the respondent submitted that the findings of the court below are supported by evidence and materials on record, and hence it cannot be said that it is perverse, warranting an interference in an appeal against acquittal. 6. I have carefully considered the submissions made by the counsel for the appellant and the respondent. I have also perused the judgment impugned in this appeal. 7. In the light of the rival contentions advanced by the counsel for the appellant and the respondent, and in the light of the findings of the court below based upon the evidence and materials referred to in the impugned 5 ## **Crl.A.No.1983 of 2009** judgment, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the findings of the court below and further, whether the appellant has made out any compelling or substantial reason to interfere with the order of acquittal recorded in favour of the accused. It is beyond dispute that neither in the complaint nor in the proof affidavit, the complainant has any specific case with respect to the exact date of the transaction under which an amount of `3,50,000/- was allegedly given to the accused. From the averment in the complaint and from the facts stated in the affidavit filed in lieu of chief examination, the only case of the complainant is that during the mid of June, the accused came to the house of the complainant and requested for a loan of `3,50,000/- and on giving that amount, the accused executed and issued Ext.P1 cheque. Whereas, the specific case taken by the accused is that the cheque in question was originally given in blank when the accused borrowed an amount of `10,000/- from the complainant during the year 6 ## **Crl.A.No.1983 of 2009** 1998. In this juncture it is relevant to note that Ext.P1 cheque was dishonoured for the sole reason that the account closed. According to the complainant, the present transaction was taken place during the year 2002, though the exact date is not mentioned. But the accused has got a consistent case, as rightly observed by the learned Magistrate, right from Ext.P7 reply notice that as to how the cheque belong to the account of the accused reached in the hands of the complainant. In this case it is relevant to note that, neither in the complaint nor in the proof affidavit, the complainant has any case that there was any prior demand from the side of the accused for an amount of `3,50,000/- and consequent to that, there was an understanding to give that amount on approaching the complainant on any particular date. The evidence with respect to those aspects according to me, in the present case, is absolutely necessary, since the cheque in question is a type written one. The complainant has no explanation that, under what circumstances he received Ext.P1 cheque 7 ## **Crl.A.No.1983 of 2009** filled in type written letters. The complainant has no case that the accused is an illiterate person or that he was unable to fill up the cheque herself. In the absence of any such evidence, it is unbelievable that the accused brought a type written cheque, filling the same including the amount therein without a prior understanding between the complainant and the accused. According to me, the learned Magistrate is fully justified in his finding that the complainant has miserably failed to prove the due execution of Ext.P1. In the absence of any evidence or materials with respect to the exact transaction, according to me, the case advanced by the defence is more probable than the case of the complainant that Ext.P1 cheque was originally given as a blank one, when the accused borrowed a sum of `10,000/during the year 1998. Thus, it can be seen that the finding of the learned Magistrate is supported by the available materials and evidence and circumstances involved in the case. Therefore, it cannot be said that the findings are perverse or illegal. 8 ## **Crl.A.No.1983 of 2009** 8. 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 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 make out even a prima facie case in support of his 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. 9 ## **Crl.A.No.1983 of 2009** 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