IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 CRL.A.No. 1234 of 2005() ------------------------ ST.2979/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... APPELLANT: COMPLAINANT ------------------------- G.SHAJIKUMAR, S/O.GOPINATHAN, THADATHARIKATHU VEEDU, KANJIRAM PARA, ANAKUDI POST, KARATE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.J.JAYAKUMAR RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. LATHA, D/O.SOMAN, MSN HOUSE, PULIMATH P.O., KARATE, THIRUVANANTHAPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SAJU.S.A FOR R1 R2 BY PUBLIC PROSECUTOR SRI S. SIVAKUMAR.. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1234 of 2005 ---------------------------------------- Dated the 11th day of October, 2011 JUDGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant herein as he is aggrieved by the judgment dated 29.12.2004 in S.T.No.2979 of 2003 of the court of Judicial First Class Magistrate-II, Attingal by which the learned Magistrate acquitted the accused under section 255(1) Cr.P.C. 2. The case of the complainant is that he accused borrowed a sum of Rs.2 lakhs from him on 15.6.2003 and issued Ext.P1 cheque towards the discharge of the said liability. But the said cheque when presented for encashment, was dishonoured for want of sufficient fund in the account of the accused. The accused has not repaid the cheque amount in spite of the statutory notice and thus the accused has committed the offence punishable under section 138 of the NI Act. With the above allegation, the complainant approached the court of Judicial First Class Magistrate-II, Attingal by filing a complaint based upon which cognizance was taken for the offence under section 138 of the NI Act and instituted S.T.No.2979/03. During the trial of the case, PWs 1 and 2 were examined from the side of the complainant and produced Exts.P1 to CRA 1234/05 2 P7. From the defence side, DW1 was examined and produced Exts.D1 and D2. After having considered the entire evidence and materials, the trial court has found that the accused has succeeded in proving that the transaction alleged by the complainant is not true and the case of the accused is more probable and the accused has rebutted the presumption available under section 139 of the NI Act. Consequently it was found that the accused has not drawn Ext.P1 cheque in favour of the complainant in discharge of the debt as alleged. On the basis of the above finding, it is further found that the accused is not guilty and accordingly she is acquitted under section 255(1) Cr.P.C. 3. I have heard Sri.J.Jayakumar, the learned counsel appearing for the appellant and Adv. Sri S.A.Saju, the counsel for the Ist repondent and I have also perused the judgment of the trial court. 4. The specific case of the complainant is that, the accused, who is a lady, availed a loan of Rs.2 lakhs from him on 15.6.2003 an towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 15.7.2003 and the same was dishonoured. But the case of the accused is that, she never executed and issued the cheque in favour of the complainant and she never borrowed any amount from him and the present case is falsely foisted against her because of the enmity of the complainant towards the husband of the accused on an allegation that CRA 1234/05 3 the accused has not repaid Rs.65,000/- to the complainant, connected with a visa transaction. The learned counsel for the appellant vehemently submitted that in the absence of any proper and convincing explanation from the side of the defence as to how Ext.P1 cheque reached in the possession of the complainant, the learned Magistrate ought not have held that Ext.P1 cheque has not been executed and issued by the accused in favour of the complainant. It is also pointed out by the learned counsel that, absolutely, no evidence is adduced by the defence to substantiate its case. According to the learned counsel for the appellant, the court below arrived in its erroneous conclusion purely on the basis of surmises and conjectures and there is no materials or evidence justifying such conclusion. 5. On the other hand, the counsel for the Ist respondent/accused submitted that the complainant has miserably failed to prove the transaction, and , mere production of Ext.P1 from the possession of the complainant is not sufficient to hold that there was transaction between the complainant and the accused executed and issued the cheque in favour of the complainant. The learned counsel submitted that in the light of the admissions made by the complainant, while he was examined as PW1, probablise the case of the accused and the facts which admitted by the complainant during his cross examination, is suppressed in the CRA 1234/05 4 complaint. Thus according to the learned counsel, the materials available on record fully justifies the conclusion arrived on by the court below that the accused has succeeded in rebutting the presumption and the case of the accused is probable. 6. I have carefully considered the arguments advanced by the counsel for the appellant as well as the Ist respondent. I have also perused the judgment of the trial court and evidence on record. In the light of the rival pleadings advanced by the counsel for the appellant as well as the Ist respondent, and in the light of the materials and evidence on record, the question to be considered is whether the findings of the learned Magistrate are justified and whether the same are further justified in acquitting the accused and under section 255(1) Cr.P.C. It is pertinent to note that in the complaint , no details are given in support of the claim of the complainant including the transaction and the issuance of the cheque in question. It is true that, besides the complainant, who was examined as PW1, one more witness was examined on behalf of PW1, as PW2. PW2 has also stated in support of the claim of the complainant. Nowhere in the complaint, or in the chief affidavit, mentioned any facts which led to the execution and issuance of Ext.P1 cheque. The accused is a lady and no circumstances is pointed out either in the complaint or in the chief affidavit as to why the accused approached the complainant CRA 1234/05 5 for availing loan. But during the cross examination of PW1 , several strange facts are brought on record and PW1 has categorically admitted that he was the manager of the bus service conducted by the accused in the year 1996 and he has also admitted that the accused is his relative. He had also admitted that he was a witness in the agreement for purchase of the bus and he had further admitted that he is the person who used to remit hire amounts and made payments in the bank on behalf of the accused and the collection from bus was remitted by him in the Federal Bank. The complainant has also admitted that, the husband of the accused, who was examined as DW1, was employed in Gulf country and the complainant requested for a vista and he had paid Rs.65,000/- for that purpose. He has also admitted that Ext.D1 visa, issued in his favour, was received during the year 1997. But he did not accept the visa as he had got employment at that time. But all those admitted facts are suppressed in the complaint. Thus on a reading of the complaint and evidence of PW1 would show that, one fine morning the accused , who is a lady, whose husband is working in gulf country, approached the complainant and claimed a loan of Rs.2 lakhs. The above transaction itself appears to be shabby and unbelievable , especially, when the husband of the accused is employed in gulf country. During the cross examination of PW1, the accused had succeeded in bring out the CRA 1234/05 6 fact that there was a visa transaction between the complainant and the husband of the accused during the year 1997 and the complainant did not accept the visa as he had got employment at that time. It was also brought on record that the complainant has paid Rs.65,000/- towards the charges of the visa. While the above admissions are available, in the evidence of PW1, the defence adduced evidence by examining DW1, who is none other than the husband of the accused and it is brought on record that the complainant has paid Rs.65,000/- for obtaining visa and Ext.D1 visa was procured by DW1 in favouor of the complainant but he was not prepared to accept the same as he had got employment. DW1 has also stated that the complainant had demanded back Rs.65,000/-, which was advanced for the visa, particularly, when he refused to accept Ext.D1. DW1 has also stated that he was not prepared to accept the demand of the complainant and therefore connected with the amount of Rs.65,000/-, the complainant was hostile towards DW1 and his wife, the accused herein. On the basis of the above materials, the trial court in its judgment, particularly, in paragraph 9 has specifically found that, the transaction alleged and claimed by the complainant which said to have taken place in the year 2003, after his refusal to accept the visa in the year 1997, is not at all a probable case. According to me, the above findings and observation of the learned Magistrate are fully justified CRA 1234/05 7 since the same are supported by evidence, particularly the admission made by PW1 during his cross examination. Though PW1 has admitted that he had paid Rs.65,000/- to the husband of the accused for the visa and he reused to accept Ext.D1 visa, the very same complainant denied the suggestion that he had requested to transfer his visa in favour of his brother. Now the fact emerged from the above transaction is that, the complainant had paid Rs.65,000/- in favour of the husband of the accused for the visa and though the visa was obtained by DW1, the complainant was not prepared to accept the same, thus Rs.65,000/- was with DW1 and the said payment was not worthy as far as the complainant is concerned. If that be so, it is quite unbelievable and improbable that the complainant again advanced an amount of Rs.2 lakhs in favour of the accused during the year 2003. Thus according to me, the finding and observation made by the learned Magistrate is fully correct and supported by cogent reasons. The counsel for the appellant vehemently submitted that the accused had not produced any evidence except the photostat copy of the visa i.e., Ext.D1 in support of the case of the accused. According to me, the above submission is not legally sustainable in the light of the decision of the Apex Court in Narayana Menon v. State of Kerala (2006(3) KLT 404) (SC), wherein it is held that, for rebutting such presumption, what is needed is to raise a probable CRA 1234/05 8 defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. The standard of proof evidently is pre-preponderance of probabilities. Inference of pre-preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. 7. In the light of the above evidence and materials on record, I am of the view that the accused in this case has fully succeeded in rebutting the presumption and therefore, the findings of the courts below, is perfectly legal and valid. There is no substantial or compelling reason so as to interfere with the order of acquittal recorded by the trial court in favour of the accused since, the observations and findings and the final order of acquittal are arrived after proper appreciation of the evidence and materials. In the result, I find no merit in this appeal and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- CRA 1234/05 9 kvm/-