IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 CRL.A.No. 918 of 2001() ----------------------- CC.1280/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT(S): -------------- JAYADEVAN, S/O. MELEDATH VEETTIL MADHAVAN, THALIKULAM AMSOM, DESOM, THALIKULAM, CHAVAKKAD TALUK. BY ADV. SRI.RAJIT RESPONDENT(S): --------------- K.M.NOORJAHAN, W/O. ABDULMAJEED, KOTTAPPURATH VEEDU, KAITHAKKAL P.O., THALLIKULAM. BY ADV. SRI.P.K.SAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No. 918 of 2001 ---------------------------------------------- Dated, 20th February, 2009. JUDGMENT This appeal is at the instance of the complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act as he is aggrieved by the order of acquittal passed by the court below in favour of the respondent/accused under section 255 (1) Cr.P.C. 2. The case of the appellant/complainant is that his firm is a proprietary concern conducting chitty business. According to the averments, the accused was a subscriber to Ticket Nos.7 and 13 of Kury No.M.III, for Rs.90,000/- each payable in 30 monthly instalments of Rs.3000/- each, conducted by the complainant. According to the case of the complainant, the accused bid the kuries on 5.3.96 and 6.4.96 respectively and received the amounts and agreed to remit the balance monthly subscriptions without any default. According to the complainant, the accused paid the instalments up to 22nd instalment in Ticket No.7 and 21st instalment in Ticket No.3 and thereafter made default in payment. Thus the complainant demanded payment of the defaulted subscriptions. Thus, according to the complainant, on 10.11.97, the accused came to the complainant Crl.A.918/01 -:2:- kury company and for the payment of future subscriptions with interest, she issued a post dated cheque for Rs.54,480/- dated 5.10.1998. According to the complainant when the said cheque was presented for collection, it was dishonoured with the endorsement “account closed on 26.11.97”. Thus, according to the complainant, a lawyer notice was caused to send on 10.11.98 intimating the dishonour of the cheque and demanding the amount covered by the dishonoured cheque. As no amount was paid, the complainant approached the court below by preferring the complaint for prosecution under section 138 of the Negotiable Instruments Act. On appearance of the accused, the particulars of the allegations were read over and explained to her and she pleaded not guilty, consequently, PW1 was examined from the side of the complainant and marked Exts.P1 to P9 documents. When the accused was examined under section 313 Cr.P.C., she denied the incriminating circumstances. The accused took a stand of total denial of the entire allegations claimed by the complainant. According to the accused, she was a subscriber only in one chitty and the averments in the complaint that she is subscriber in two chitties, is denied. It is the further case of the accused that when she received the bid amount, the complainant obtained a signed blank cheque as security for the repayment of the future subscriptions and when there was default in Crl.A.918/01 -:3:- some future instalments, the complainant availed the cheque entrusted to him endorsing the amount of Rs.54,480/- and filed the complaint without any bona fides. To substantiate the case, the defence produced Exts. D1 and D2 kury passbooks. The trial court , after considering the entire facts and circumstances involved in the case, came into the conclusion that on the alleged date of issuance of the cheque, there was no legally enforceable debt or liability due from the accused. It is also found that the complainant can claim or enforce the future subscription after the expiry of the due date. Thus it is found that the complainant has not succeeded in proving the case against the accused and accordingly found that the accused is not guilty of the offence alleged against her and thus she is acquitted under section 255 (1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri Rajith, the learned counsel appearing for the appellant and also Sri P.K.Sajeev, the learned counsel appearing for the respondent/accused. 4. The learned counsel for the appellant submitted that the complainant had succeeded in establishing the case that there was a legally enforceable debt due to the complainant from the side of the accused and the cheque in question was issued to discharge the said Crl.A.918/01 -:4:- liability. The learned counsel submitted that the finding of the trial court that on the alleged date of issuance of the cheque, there was no legally enforceable debt or liability due to the accused, is factually incorrect and legally unsustainable. In order to substantiate the above contention, the learned counsel submitted that as in the case of defence, for discharging their burden to rebut the presumption, they can press into service the materials produced by the prosecution, the prosecution can also rely upon the materials produced by the accused. Thus, according to the learned counsel, going by Exts.D1 and D2, it can be seen that the amount was due from the accused towards the complainant and therefore, the cheque in question was issued for discharging the said liability. On the basis of the above argument, the learned counsel sought interference of this court with the order of acquittal passed by the trial court. 5. Per contra, the learned counsel for the respondent/accused submitted that the complainant has no specific case against the accused and the averments in the complaint itself are false and the same are not substantiated. Fully supporting the finding of the trial court, it is submitted that on 10.11.97 there was no default of the subscription amount. Ext.D1 would show that 22nd instalment was though due on 5.11.97, the same was remitted on 10.7.98. So, as per Crl.A.918/01 -:5:- Ext.D1, instalments Nos.18 to 22 were paid after the date of issuance of the cheque. If that is true, there is no question of issuing the cheque in question on 10.11.97. Thus according to the learned counsel, from the above evidence, the defence has proved a probable case. The defence of the accused is to the effect that at the time of bidding the chit amount, the complainant obtained a blank signed cheque and the same was misused for filing the present petition and therefore, at the time of the alleged transaction, there was no due from the accused towards the complainant. So the learned counsel submitted that the finding of the court below is purely based upon evidence and materials on record and no interference is called for. 6. I have carefully considered the arguments advanced by both the counsels and also perused the records. The specific case of the complainant is that on 10.11.97, the accused came in the kury company of the complainant and for the payment of the future subscriptions with interest, the accused issued a post dated cheque for Rs.54,480/- after ascertaining the due amount from the office of the kury company. Though the allegation of the complainant that the accused had subscribed two kuries, the same is incorrect and not proved. The accused has admitted that she is a subscriber of only kury No.7 for a total sum of Rs.90,000/- and when she bid the kury on 5.3.96, the Crl.A.918/01 -:6:- complainant had obtained a blank signed cheque from the accused and it is the said cheque misused for filing the complaint. In fact the cheque was dishonoured not for insufficiency of funds maintained in the account, but for the reason that the account was closed on 27.11.1997. As per Ext.P7, it is clear that the account was closed as early as on 27.11.97 but it was argued that Ext.P1 cheque bears the signature of the accused, so the presumption under section 139 of the Act is available in favour of the complainant and on the date of issue of the cheque there was a live account in the name of the accused. The admission of the signature in the cheque in question is not sufficient to show that the same was executed and issued towards the discharge of a debt. It is for the complainant or the holder of the cheque to plea and prove that the cheque in question is duly executed and issued for the discharge of legally enforceable debt or liability. The court has to consider how far the complainant had succeeded in establishing the above initial duty of the complainant so as to avail the presumption under section 139 of the Act. The trial court has already found that the endorsement contained in Ext.P1 cheque is not that of the accused for the reason that the signature and the other endorsement in the cheque are not put by one and the same person. In this case, the defence is to the effect that the cheque in question was obtained by the complainant Crl.A.918/01 -:7:- at the time when she availed the bid amount. So According to the defence, the cheque is not executed and issued by her towards the discharge of legally enforceable debt or liability. 7. As indicated earlier, the specific case of the complainant is that the cheque in question was issued on 10.11.97 towards the payment of the arrears of instalments and thereby to discharge the debt. To disprove the above claim, the accused produced Exts.D1 and D2. Ext.D2 is with respect to the kury subscribed by mother of the accused. We are not concerned with the above document since the complainant has no case with respect to the said kury or against the subscriber of that kury. Going by the endorsement contained in Ext.D1, the following remittances can be seen: “18th instalment on 30.3.98 Rs.3000/- 19th instalment on 5.5.98, Rs.3000/- 20th instalment on 5.5.98, Rs.3000/- 21st instalment on 10.7.98, Rs. 3000/- 22nd instalment on 10.7.98, Rs.3000/-” If those instalments were made on the corresponding dates, there was no question of issuing Ext.P1 cheque on 10.11.97 showing the date as 5.10.98. Therefore, the case of the complainant that the cheque in question was issued on 10.11.97 to discharge the liability of defaulted Crl.A.918/01 -:8:- instalments is incorrect and such version is disproved. Therefore, the complainant/appellant is not entitled to get the presumption since the accused has successfully rebutted the same. 8. In this respect, it is also relevant to note that the appellant/claimant claimed that Ext.P1 cheque was issued on 10.11.97. But it is proved that the account to which Ext.P1 cheque pertained was closed on 26.11.97. Naturally no person is expected to issue a cheque pertained to a closed account or account which he proposed to close. In the present case, even according to the accused, the cheque in question was obtained by the complainant on 5.3.96 when she received the bid amount. So, the explanation offered by the accused as to how the cheque in question reached in the hands of the complainant, seems more satisfactory in the facts and circumstances involved in the case, and the same is more probable. In view of the above facts and circumstances, I find no reason to interfere with the order of acquittal passed by the court below and hence, the order of acquittal passed by the trial court is to be approved and affirmed and I do so. 9. In the decision in Ghurey Lal v. State of U.P. (2008 (4) KLT SN 17 (C.No.17) (SC), the Apex Court has laid down certain circumstances under which the appellate court can interfere with the order of acquittal. In the said decision, the Apex Court has specifically Crl.A.918/01 -:9:- held that appellate court can interfere only for very substantial and compelling reasons. Reiterating the same position, the Hon'ble Supreme Court, in the decision reported in Batcu Venkateshwarlu and Ors. v. Public Prosecutor H.C. of A.P. (2009(1) Supreme 67), has held that in case of acquittal, there is a double presumption in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong. In the light of the above discussion, I find no compelling and substantial reason to hold that the trial court is wrong. In the result, there is no merit in the appeal and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- Crl.A.918/01 -:10:- V.K.MOHANAN, J. CRL.A.No.918 OF 2001 Judgment Dated: 20.2.2009