IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 CRL.A.No. 1993 of 2007() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.1007/2007 Dated 11/10/2007 ST.1281/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... APPELLANT(S): COMPLAINT:- ------------------------- V.HASHIM, S/O AHAMMEDKUTTY, CHURAMUKKIL HOUSE, FEROKE, PETTA, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): ACCUSED STATE ---------------------------- 1. V.SAINUDDEEN, S/O ABDULLA, SHAFEENA MANSIL, NUT STREET, VADAKARA 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SMT.LALIZA, PUBLIC PROSECUTOR SRI.NIRMAL. S, FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl.A.No.1993 of 2007 ------------------------------- Dated this the 25th day of November, 2011. J U D G M E N T The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the judgment dated 15.5.2007 in S.T.No.1281 of 2003 in the court of Judicial First Class Magistrate-I, Kozhikode, by which the learned Magistrate acquitted the accused, in his complaint, under Section 255(1) of Cr.P.C. 2. The case of the complainant is that, the accused borrowed a sum of Rs.1 lakh from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 15.3.2003 for an amount of Rs.1 lakh, which when presented for encashment dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has not repaid the amount covered by the dishonoured cheque, inspite of 2 Crl.A.No.1993 of 2007 the statutory notice and thus according to the complainant, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. With the above allegation by filing a complaint, the complainant approached the court of Judicial First Class Magistrate-I, Kozhikode, where upon cognizance was taken for the said offence and instituted S.T.No.1281 of 2003. 3. The trial court as per its earlier judgment dated 24.3.2006 has found that the accused is guilty and accordingly he is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for 6 months and he was also directed to pay a sum of Rs.1,10,000/- to the complainant as compensation under Section 357(3) of Cr.P.C. The accused preferred an appeal against the above judgment of the trial court, challenging his conviction and sentence and by judgment dated 30.9.2006 in Crl.A.No.242 of 2006, the lower appellate court set aside the conviction and sentence imposed by the trial court and remanded the case for the 3 Crl.A.No.1993 of 2007 purpose of deciding the first point formulated by the trial court. It was also observed that both the parties can adduce further evidence but the appellate court did not interfere with the 'cause of dishonour, issue and service of notice' and those points were found in favour of the complainant. 4. Thus after the remand order, the complainant/ appellant herein filed an affidavit under Section 145(1) of Negotiable Instruments Act and when he was cross examined, no other evidence was adduced from either side. Thus the impugned judgment in the present appeal is the second judgment of the trial court, by which the learned Magistrate acquitted the accused under Section 255(1) of Cr.P.C., holding that the case set up by the accused is more probable and acceptable and further found that Ext.P1 cheque was not issued by the accused to the complainant towards the discharge of any legally enforceable liability. On the basis of the above finding, the accused is acquitted under Section 255(1) of Cr.P.C. It is the above finding and 4 Crl.A.No.1993 of 2007 order of acquittal challenged in this appeal. 5. I have heard Sri.A.V.M.Salahuddeen learned counsel appearing for the appellant and Sri.S.Nirmal learned counsel for the contesting respondents. I have perused the judgment of the trial court. 6. After considering the evidence of Pws.1 and 2 and other documents, the learned Magistrate has found that the complainant has succeeded in discharging his initial burden, ie., execution of Ext.P1 cheque. While considering the deposition of DW1, the learned Magistrate has observed that his testimony is not acceptable. But the learned Magistrate is of the opinion that the accused can rebut the legal presumption with the aid of flaws and lacunae in the complainant's case and accordingly held that, it is unbelievable that, a prudent man will advance a huge amount without taking proper security and the complainant has failed to offer any acceptable explanation for lending such a huge amount to the accused without any security. The trial court has also found that there is no clear-cut 5 Crl.A.No.1993 of 2007 evidence as to who made endorsement in Ext.P1 cheque, since Pws.1 and 2 has no claim or case that it was written by the accused. It is also found by the learned Magistrate that though PW2 has claimed that the factum of lending of Rs.1 lakh to the accused will be borne out from the account for the month of January 2003, he had miserably failed to produce the account, inspite of the order issued by the learned Magistrate on 19.3.2007 in C.M.P.No.1384 of 2007. Thus after considering the above facts and circumstances, the learned Magistrate came into a conclusion that the case set up by the accused is more probable and also found that Ext.P1 cheque was not issued by the accused to the complainant towards the discharge of a legally enforceable debt. 7. Sri.A.V.M.Salahuddeen learned counsel for the appellant vehemently submitted that, at the first instance the trial court has found that the accused is guilty after accepting the case of the complainant, though the same was set aside by the appellate court. It is also the submission of 6 Crl.A.No.1993 of 2007 the learned counsel that, by the second judgment, which is impugned in this appeal, the learned Magistrate has categorically found that on a careful analysis of the available evidence, the complainant has succeeded in discharging his initial burden of proving execution of Ext.P1 cheque. If that be so, according to the learned counsel, the learned Magistrate is bound to extend the benefit of Section 139 of the Negotiable Instruments Act and presumption has to be drawn in favour of the complainant. Thus according to the learned counsel, inspite of the above specific finding that contained in para 8 of the impugned judgment, the learned Magistrate went wrong in holding that the accused has succeeded in rebutting the presumption, especially when there is no evidence or materials in support of the defence set up by the accused. It is also pointed out by the learned counsel that in response to an order dated 19.3.2007 in C.M.P.No.1384 of 2007 of the trial court, the complainant has filed an affidavit stating the reason for not producing the account book mentioned by the complainant. 7 Crl.A.No.1993 of 2007 But the learned Magistrate in an arbitrary way observed that the complainant did not produce the account book nor he filed an affidavit stating the reason for not producing the documents before the court. According to the learned counsel, the above finding of the court below is factually incorrect. Thus according to the learned counsel, inspite of the fact that the complainant has filed an affidavit in pursuance to the order dated 19.3.2007 in C.M.P.No.1384 of 2007, the learned Magistrate by invoking Section 114 of the Evidence Act mistakenly held that the “presumption available under Section 118 and 139 are rebutted”. Thus according to the learned counsel, the findings of the court below are arbitrary and illegal and erroneous. 8. On the other hand, Sri.S.Nirmal, learned counsel appearing for the respondents submitted that, the findings of the court below is purely based upon the evidence and materials on record and the reason assigned by the learned Magistrate for disbelieving the case of the complainant is correct and convincing. It is the submission of the learned 8 Crl.A.No.1993 of 2007 counsel that in the absence of any ground that the learned Magistrate has over looked any evidence or materials on record, there is no scope to interfere with the order of acquittal. According to the learned counsel for the respondents, the evidence on record would show that the complainant has miserably failed to prove the transaction claimed by him and the execution and issuance of the cheque. Thus according to the learned counsel, no interference is warranted. 9. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the respondents and I have gone through the judgment of the trial court and evidence and materials on record. 10. In the light of the rival contentions and the evidence and materials on record, the question to be considered is whether the findings of the court below as to whether the accused issued Ext.P1 cheque to the complainant towards the discharge of the debt or other liability, is correct and whether the findings of the court 9 Crl.A.No.1993 of 2007 below that accused has not committed the offence punishable under Section 138 of Negotiable Instruments Act is justified. 11. The specific case of the complainant is that the accused borrowed an amount of Rs.1 lakh and towards the discharge of the said liability, the accused issued Ext.P1 cheque which was dishonoured for want of sufficient fund in the account maintained by the accused and therefore the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Whereas the case of the accused is that, he had no transaction with the complainant as claimed by the complainant, but according to the accused, the complainant was entrusted with a blank signed cheque of the accused, so as to enable the complainant to avail loan. It is true that the learned Magistrate has found that the complainant has succeeded in discharging his initial burden ie., execution of Ext.P1 cheque but the very same Magistrate has further found that Pws.1 and 2 said that they do not know who had written the 10 Crl.A.No.1993 of 2007 contents of Ext.P1 cheque. It is a fact beyond dispute that, during the trial of the case, only PW1 alone was examined initially from the side of the complainant and it is a fact that PW1 is the power of attorney holder of the complainant who is subsequently examined as PW2. Ext.P1 cheque is dated 15.3.2003 but Ext.P8 power of attorney holder is executed much after the date of Ext.P1 cheque. It is true when PW1 was examined, he had stated that he knows the transaction claimed by the complainant but the claim of PW1 regarding his personal knowledge with respect to the transaction is not free from doubt since no document is produced to show that PW1 was with the complainant atleast from the date of Ext.P1 cheque, ie., on 15.3.2003. The lower appellate court while remanding the matter to the trial court has specifically found about those defect and it was under that circumstances the case was remanded to the trial court to decide the first issue afreshly. It is thereafter the original complainant was examined as PW2. But even after the examination of PW2, there is no convincing evidence to 11 Crl.A.No.1993 of 2007 prove the transaction claimed by the complainant. There is no explanation as to why a huge amount to the tune of Rs.1 lakh given to the accused without any security or document. There is no evidence on record to show that the relationship between the complainant and accused was so deep rooted and in such a nature so as to gave such a huge amount without any guarantee or security. It is beyond dispute that Ext.P1 cheque contain the signature of the accused. It is a settled proposition of law that, the mere fact that the cheque in question contains the signature of the account holder, is not sufficient to hold that the account holder had executed or drawn and issued the cheque towards the discharge of any liability. As indicated earlier, in the present case, regarding the transaction itself there is no cogent and convincing evidence except the interested version of Pws.1 and 2. No contemporary documents are produced. It is not necessary that in order to attract the penal liability under Section 138 of Negotiable Instruments Act, in every case there should be contemporary documents 12 Crl.A.No.1993 of 2007 or independent evidence. But when the evidence of the complainant is doubtful, prudence insists for independent evidence or documentary evidence. In the present case such a legal requirement is absolutely necessary, especially in the absence of any explanation from the part of the complainant in granting a sum of Rs.1 lakh without any security and when Pws.1 and 2 were not aware of the authority of Ext.P1 cheque, except the signature therein. Pws.1 and 2 has stated that they do not know as to who made the endorsement in Ext.P1 cheque. Thus it can be seen that they have no positive case that the entries in Ext.P1 cheque was made by the accused. That part of the complainant's evidence or the laches on the part of the complainant's case is consistent with the case of the accused that he entrusted a blank cheque with the complainant for the purpose of availing loan for him. It is true that the accused has not produced any positive evidence to discharge such a version. The learned Magistrate was also not prepared to accept the evidence of 13 Crl.A.No.1993 of 2007 DW1. Still then the lacuna on the part of the prosecution evidence with respect to the authorship of the entries in Ext.P1 cheque is a relevant fact which can be pressed into service by the defence to discharge the burden of rebutting the presumption. The Apex court in its decision reported in Krishna Janardhan Bhat Vs. Dattatraya Hegde [2008 (1) KLT 425 (SC)] has held that, “an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records.” It was also held in the same decision that, “where the prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities' and inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.” In the present case, apart from the absence of any explanation as to why 14 Crl.A.No.1993 of 2007 such a huge amount was given to the accused and the absence of any positive evidence regarding the authorship on Ext.P1 cheque, the defence has also succeeded in bringing out certain facts so as to draw a presumption under Section 114 of the Evidence Act against the complainant. When the complainant was examined, he had deposed and admitted that he was keeping proper account in his business and the fact of lending of Rs.1 lakh to the accused would find a place in the account for the month of January 2003 and he had also deposed before the court that there is no difficulty for him to produce the said account before the court. He had also deposed that he made the payment out of the fund of his business. It is under the above factual background and the evidence of PW2, the accused moved an application as C.M.P.No.1384 of 2007 with a prayer for a direction to the complainant to produce his account book and the learned Magistrate allowed the said petition on 19.3.2007. But inspite of his deposition which I mentioned above, he failed to produce those 15 Crl.A.No.1993 of 2007 document and no affidavit is seen filed, with any explanation for not producing the document. The learned counsel for the appellant submitted that the complainant has already filed an affidavit stating some reasons. From the discussion of the learned Magistrate that contained in para 10 of his judgment it appears that, the reasons stated is that the payment was made to the accused from the personal fund of the complainant and not from the business account. The above reason is not sufficient for the non compliance of the order dated 19.3.2007 in C.M.P.No.1384 of 2007, especially when the evidence of PW2 is that the payment of money to the accused will find a place in the account of the complainant for the month of January 2003. It was under the above factual scenario, placing reliance on the decision of the Apex court reported in Kundan Lal Rallaram Vs. Custodian, Evacuee property, Bombay (AIR (1961) SC 1316), the learned Magistrate was constrained to draw a presumption against the complainant. The above approach of the learned Magistrate is fully 16 Crl.A.No.1993 of 2007 justified in the light of the decision of the Apex court mentioned in the judgment of the trial court itself. 12. Thus in the light of the above discussion and the materials and evidence on record, according to me, it can be safely concluded that the complainant has miserably failed to prove the transaction that the accused had borrowed a sum of Rs.1 lakh from the complainant and further failed to prove that, towards the discharge of said liability the accused had issued Ext.P1 cheque after its due execution. As I indicated earlier, even if Ext.P1 cheque contained the signature of the accused, the same alone is not sufficient to hold that the accused executed the cheque and issued the same in favour of the complainant and the evidence of Pws.1 and 2 and the ignorance expressed by them about the authorship of entries in Ext.P1 cheque further reiterate the fact that the complainant miserably failed to prove the execution of the cheque and such failure on the part of the complainant is consistent with the defence version. Therefore, it can be seen that while 17 Crl.A.No.1993 of 2007 disbelieving the case of the complainant and while holding that the accused has rebutted the presumption, the learned Magistrate has assigned very judicial and convincing reasons based upon the materials on record. Therefore, the findings and observation is not liable to interfere with, on the ground of its irregularity, illegality or impropriety. In the absence of any case for the complainant/appellant that the learned Magistrate has over looked any evidence on materials which is in favour of the complainant or the findings are tainted due to perversity, the order of acquittal recorded by the trial court is not liable to be interfere with. In the result, I find no merit in this appeal and accordingly, the same is dismissed. V.K.MOHANAN, Judge ami/