IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 CRL.A.No. 1222 of 2005 ------------------------------- (CC.1074/2004 of JUDL. FIRST CLASS MAGISTRATE COURT -I , THODUPUZHA) .................... APPELLANT/COMPLAINANT: ------------------ ELSY MATHAI, W/O.MATHAI, THEKKUMKATTIL VEETTIL, VANNAPPURAMKARAM, VANNAPPURAM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.T.J.MICHAEL SRI.P.NOOR ZAMEER RESPONDENT/ACCUSED: -------------------- JOSEPH, S/O.JOHN, ADUKKUZHIYIL HOUSE, KALLOOR KARA, POTHANICADU VILLAGE, MUVATTUPPUZHA TALUK. BY ADV. SRI.V.K.PRAVEEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1222 of 2005 ---------------------------------------- Dated this the 4th day of October, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant, as she is aggrieved by the judgment dated 17.3.2005 of the trial court viz., the court of the Judicial Magistrate of Ist Class I, Thodupuzha in C.C.No.1074 of 2004, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. Heard the counsel for the appellant as well as counsel for the respondent. 3. The case of the complainant is that the accused borrowed an amount of Rs.85,000/- on 18.3.2004 with the promise that the same will be repaid within three months, but no repayment was made and on demand, from the side of the complainant, the accused issued Ext.P1 cheque dated 18.6.2004 for the said amount and when the CRL.A.NO.1222 of 2005 :-2-: cheque was presented for encashment, the same was dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of statutory notice issued by the complainant and therefore, the accused has committed the offence under Section 138 of the N.I.Act. With the above allegation, by filing a complaint, the complainant approached the court of Judicial First Class Magistrate-I, Thodupuzha whereupon cognizance was taken and instituted C.C.No.1074 of 2004. During the trial of the case, the complainant herself was examined as PW1 and Exts.P1 to P6 were produced. From the side of the defence, DW1 was examined and Exts.D1 and D2 were marked. The trial court, after considering the entire materials and evidence on record, has held that the contention of the complainant that the accused borrowed Rs.85,000/- on 18.3.2004 and Ext.P1 cheque was issued on 18.6.2004 for discharging the liability is not at all acceptable especially in the light of Ext.D1 petition and accordingly, found that the complainant has failed to prove the case alleged against the accused and CRL.A.NO.1222 of 2005 :-3-: consequently, the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal are challenged in this appeal. 4. I have heard Sri.T.J.Micheal, learned counsel for the appellant and Sri.V.K.Praveen, learned counsel appearing for the first respondent. 5. Mr.Michael, learned counsel for the appellant vehemently submitted that the finding of the learned Magistrate that the case put forward by the complainant that the accused has issued Ext.P1 cheque towards the discharge of the liability due to the complainant is unacceptable on the basis of Ext.D1 document is absolutely incorrect and improper. In support of the above contention, learned counsel, after inviting my attention to Ext.D1 document, strenuously submitted that Ext.D1 is not put to PW1 and therefore, the contents in Ext.D1 are not proved and hence, the learned Magistrate ought not have relied upon the contents of Ext.D1 to disbelieve the case of the complainant. It is also the submission of learned counsel that the evidence on record CRL.A.NO.1222 of 2005 :-4-: proved the case of the complainant against which the accused has no consistent case and the above defect of the case of the defence was not properly appreciated by the learned Magistrate and therefore, the counsel submitted that the order of acquittal is liable to be reversed. 6. On the other hand, counsel for the respondents submitted that the learned Magistrate is fully correct in his finding especially in the light of the particular facts and circumstances involved in the case and particularly, when the defence has succeeded in probabilising its case on the basis of Ext.D1 petition. Thus, according to the learned counsel,no interference is warranted. 7. I have carefully considered the contentions advanced by learned counsel for the appellant and the respondents. I have gone through the judgment of the trial court and the evidence and materials on record. 8. The specific case of the complainant is that the accused borrowed `.85,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque, which, when CRL.A.NO.1222 of 2005 :-5-: presented for encashment, dishonoured and thereby, the accused has committed the offence punishable under Section 138 of the N.I.Act whereas the specific contention taken by the accused is to the effect that there is no transaction between the accused as well as the complainant as claimed in the complaint. It is also contended that the father of the accused obtained a loan amount of `.25,000/- from the complainant and as security towards the said transaction, two blank cheque leaves of the accused were obtained and in spite of the fact that the amount was repaid, the cheque leaves were not returned and thus, one of the cheque leaves is misused by the complainant to file the present complaint. In the light of the above rival contentions and pleadings and in view of the materials and evidence on record, the question to be considered is whether the learned Magistrate is justified in his finding and acquitting the accused under Section 255(1) of the Cr.P.C. 9. On a scanning of the judgment in question, it can be seen that after having considered the evidence of PW1/the complainant, the CRL.A.NO.1222 of 2005 :-6-: trial court has extended the benefit under Section 139 in favour of the complainant and drawn a presumption as envisaged under Section 139 of the N.I.Act in favour of the complainant. But, on the basis of the evidence on record particularly in the light of the defence evidence, the learned Magistrate has found that it is more probable that PW1 might have filed a complaint using one of the cheques given by the accused as security towards the earlier transaction and consequently, found that the complainant has failed to prove that Ext.P1 cheque was issued by the accused towards the discharge of the liability as claimed by the complainant. According to me, the above finding of the court below is fully correct because those findings are based upon the evidence and materials on record. The learned Magistrate came into those findings on the basis of the defence evidence, i.e.,the deposition of DW1 and Esxts.D1 and D2 documents. Ext.D1 document is the petition dated 12.9.2003 which is filed by Elsy, against Joseph, S/o.John on 12.9.2003. When DW1 was examined, he had stated that the petition was disposed of on 16.9.2003 after recording the decision CRL.A.NO.1222 of 2005 :-7-: in the register, which is marked as Ext.D2 and according to the above decision, since the dispute is with respect to the money transaction, the parties are relegated to approach the court. The learned Magistrate, in paragraph 9 of his judgment, has elaborately considered the contents of Ext.D1 petition and referred to the allegation therein to the effect that two cheques were obtained by the complainant therein at the time of advancing the loan amount. Mr.Micheal, learned counsel appearing for the appellant vehemently submitted that the contents of Ext.D1 petition was not put to PW1 and no admission was obtained from her that Ext.D1 is the complaint which she preferred before the Police and therefore, the learned Magistrate is not justified in acting upon the contents of Ext.D1 complaint. I am unable to sustain the above contention in the light of the facts and circumstances involved in this case. In this juncture, it is relevant to note that when PW1 was examined, she had admitted that she had preferred a petition on 12.9.2003 before the C.I.of Police, Kaliyar. She has also deposed during the cross-examination that the complaint was preferred before CRL.A.NO.1222 of 2005 :-8-: the Police when there was delay in paying an amount of `.50,000/- which was obtained earlier and nothing was paid towards the said amount. She had also admitted that she reached the shop of the father of the accused and demanded the money back. Though other particulars of the complaint are put to PW1, she denied the same. But, it is relevant note that when DW1 was examined and Ext.D1 was marked, no effective cross-examination was conducted by the complainant to show that Ext.D1 is not the one which is mentioned by PW1 as filed before the C.I. of Police, Kaliyar Police Station. It is also relevant to note that in Ext.D1, the complainant is Elsy and the accused is one Joseph. If the parties to Ext.D1 are different, it is for the complainant to cross-examine DW1 and to convince the court that the said complaint is not the one which was launched by herself and admitted during the time of her cross-examination as PW1. Under the above factual situation, according to me, the contention of learned counsel for the appellant that Ext.D1 cannot be acted upon as the same was not marked through PW1 cannot be accepted. It is further CRL.A.NO.1222 of 2005 :-9-: relevant to note that in order to appreciate the defence of the accused in a prosecution for the offence under Section 138 of the N.I.Act, particularly to satisfy whether the accused has discharged his burden of rebutting the presumption, the standard of proof of document as insisted by counsel for the appellant is not warranted particularly in the light of the facts and circumstances involved in the case. It is also relevant to note that the reasons, which I mentioned above to reject the contentions raised by counsel for the appellant against the admission of Ext.D1 document, are equally sufficient to hold that such contentions raised by the counsel are not sufficient to interfere with an order of acquittal recorded by the trial court. The contentions raised by the counsel against the acceptance of Ext.D1 document are not compelling or substantial in nature so as to interfere with an order of acquittal. In the light of the above discussions and in view of the materials and evidence referred to above, I am of the view that the learned Magistrate is fully justified in his finding and order of CRL.A.NO.1222 of 2005 :-10-: acquittal recorded in favour of the accused and there is no ground to interfere with the order of acquittal. In the result, there is no merit in the appeal and accordingly, the same is dismissed. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1222 of 2005 :-11-: V.K.MOHANAN, J. CRL.A.No. OF 20 JUDGMENT Dated:2. ..2011 CRL.A.NO.1222 of 2005 :-12-: