IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.A.No. 822 of 2003() --------------------------------- CC.281/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA .................... APPELLANT(S): ----------------------- T.P.MURALEENDHARAN NAIR, RAJI NIVAS, POOMTHOPPU WARD, ALAPPUZHA. BY ADV. MR.A.KRISHNAN RESPONDENT(S): ------------------------ 1. BHAKATHAVALSALAN, KALLELIL KARTHIKS POOMTHOPU WARD, ALAPPUZHA. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PRSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2/04/2009, THE COURT ON 21/05/2009 DELIVERED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.822 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 21st May, 2009 JUDGMENT Complainant is the appellant. His complaint filed against the first respondent (hereinafter referred to as 'the accused') for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'), after trial ended in a judgment of acquittal rendered in favour of the accused. Challenging the correctness and legality of the acquittal passed by the court below, the complainant has preferred this appeal. 2. Towards discharge of a loan availed, the accused issued Ext.P1 cheque for Rs.65,000/- promising its encashment on presentation in due course, but the cheque presented was dishonoured due to insufficiency of funds in the account of the accused, and, statutory notice intimating dishonour and demanding the sum covered by the instrument was acknowledged, but not responded with payment, is the case of the complainant for prosecuting the accused under Section 138 of the N.I.Act. 3. The accused, on appearance, pleaded not guilty when the particulars of the offence were made known. Complainant examined himself as P.W.1 and got marked Exts.P1 to P6 to prove his case. The Crl.A.822/03. - 2 - accused questioned under Section 313 Cr.P.C. maintained his innocence and denied the transaction alleged contending that Ext.P1 cheque had been given in blank form with signature alone as security for a loan of Rs.5,000/- availed much earlier to the date shown in the instrument and that loan had been discharged by repayment. To prove his defence, he examined two witnesses including himself as D.W.1 and D.W.2 and got marked Exts.D1 to D6. The learned Magistrate, after appreciating the materials tendered by both sides came to the conclusion that the transaction alleged by the complainant over the issue of Ext.P1 cheque has not been established and further the case of the complainant that the cheque had been issued in discharge of a debt as alleged cannot be believed in the proved facts of the case. The accused was found entitled to a benefit of doubt and, accordingly, the impugned judgment was passed acquitting the accused of the offence charged. 4. I heard learned counsel on both sides. The court below misappreciated the evidence let in the case and it has resulted in miscarriage of justice, is the submission of the learned counsel for the accused. The evidence of D.W.1, the bank official, that the cheque was issued on 27.1.1999 which was corroborated by the document Crl.A.822/03. - 3 - Ext.D2 produced by him, discredited the defence canvassed by the accused that the cheque had been issued three years earlier in respect of a transaction for a lesser amount and that loan had been discharged, submits the counsel. Merely because the complainant has alleged in his complaint and also stated in his evidence that the handing over of the cheque was on a date about three weeks prior to the date of issue of the cheque from the bank, on that solitary ground alone, according to the learned counsel for the complainant, his case was not liable to be thrown out where the accused had admitted handing over of the instrument as signed by him in connection with a loan availed from the complainant. The evidence of the complainant as P.W.1 coupled with the circumstances that the accused who had set up a plea of discharge admitting the handing over of the instrument had failed to prove such discharge and that he did not even sent a reply to the statutory notice issued intimating dishonour, according to the learned counsel, deserve due consideration and acceptance to conclude that the accused was guilty of the offence under Section 138 of the N.I.Act and he should have been convicted for such offence. So much so, it is urged that in reversal of the acquittal passed in his favour by the court below the accused be Crl.A.822/03. - 4 - convicted of the offence. On the other hand, the learned counsel appearing for the accused contended there is no merit in the appeal and the acquittal rendered in favour of the accused under the impugned judgment is based on sound reasoning and it does not call for any interference. The case alleged by the complainant with respect to the issue of Ext.P1 cheque was shown by the materials produced to be unworthy of any value and totally unbelievable, and the defence canvassed that the cheque had been handed over at least three years earlier than the date of the transaction alleged by the complainant as more probable. The defence need only show that his version is probable and as such his acquittal giving him the benefit of doubt by the learned Magistrate, according the learned counsel, is proper, valid and correct. 5. Having regard to the submissions made by the counsel on both sides, I find that the question emerging for consideration is whether the acquittal passed in favour of the accused under the impugned judgment by the learned Magistrate warrants any interference in the facts and circumstances of the case and the materials produced. 6. The complainant had advanced a case that Ext.P1 cheque Crl.A.822/03. - 5 - dated 7.1.1999 was handed over by the accused towards discharge of his liability arising under a previous loan transaction with him. In evidence P.W.1 would state that the cheque was handed over on the date shown in the instrument. The accused contended that the cheque had been given in blank form with signature alone in respect of a loan transaction for a sum of Rs.5000/- only, on an earlier date, on 15.4.1996, and the liability under that loan had been discharged. True, the accused has not produced any material to prove the discharge of previous loan as contended, but, that by itself, it is seen, is not sufficient to discard his defence. He had set up a further case that after discharge the cheque given as security with blank signed stamp paper was not returned and he had to approach the police with a complaint for getting them back. The complainant in his evidence admitted that such a complaint was filed by the accused, but, according to him, it was after he presented the cheque before the bank. Both sides have not produced any material connected with complaint and in fact conflicting versions thereof are presented by them. Still, it is seen, the accused had approached the police with a complaint that the complainant withheld some document given to him as security for availing a loan even after discharge of that loan and Crl.A.822/03. - 6 - the filing of such a complaint is admitted to by the complainant. In that backdrop, the case of the complainant as regards the loan transaction in which Ext.P1 cheque was stated as handed over to discharge the liability thereunder required to be appreciated on the materials produced in the case. The case of the complainant that the handing over of the cheque was on 7.1.1999, the date shown in the instrument, is supported only by his testimony, and nothing else. A close scrutiny of the materials produced in the case would show that the cheque was collected from the accused much earlier, probably, in the year 1996, as contended by the accused. The evidence of D.W.1, the bank official and the entries made in Ext.D2 letter are canvassed by the learned counsel for the complainant to contend that Ext.P1 cheque had been given on 27.1.1999. Even if that date does not correspond with the version of the complainant, it cuts at the root of the defence case is the argument of the learned counsel for the complainant. I find that the entry in Ext.D2 and also the evidence of D.W.1, the bank official, that Ext.P1 cheque was issued as a loose cheque leaf is wholly unacceptable as it is found to be incorrect by the materials produced and the circumstances involved in the case. The accused has produced Ext.D5 showing that he had been issued a Crl.A.822/03. - 7 - cheque book having 10 leaves inclusive of Ext.P1 cheque leaf. He has also produced his pass book issued over his savings bank account in the bank which is exhibited as Ext.D4. The entries in Ext.D4, especially, during the month of August, 1996 indicate that cheque number 016 – 018 were transacted in that month. The last three digits of Ext.P1 cheque is 017. Strangely enough, Ext.D2 produced by D.W.1, which is claimed to be an extract from a register relating to the issue of cheque books and leaves maintained by the bank, does not show that any cheque book showing the last three digits from 011 to 020 had been issued to the account holder, the accused, other than the loose cheque leaf bearing the number of Ext.P1 cheque. The counterfoil of the cheque book supported by the entries in Ext.D4 pass book deserve to be given more weight and consideration and no value can be attached to the entry in Ext.D2 and also the evidence of D.W.1, the bank official, that a loose cheque leaf bearing the number of Ext.P1 cheque was issued on 27.1.1999. It is also noticed from Ext.D4 pass book that the accused has maintained his account from 1993 and transactions under cheque books issued to him in that account commenced as early from 11th May, 1996. Strangely enough, in Ext.D2 which is stated to be an extract from the cheque book issue Crl.A.822/03. - 8 - register maintained by the bank, no reference is made to the issue of a cheque book having the last three digits of 011 to 020 in the year 1996 whereas the pass book would show 9 cheque leaves with such digits had been transacted in his account from 23rd May, 1996 to 7th September, 1996. That is also a material circumstance not only discrediting the evidence of D.W.1 but supporting the version of the accused that Ext.P1 cheque had been handed over in 1996 and not under the circumstance alleged by the complainant. The learned Magistrate, who had the opportunity to watch the demeanour and deportment of the witnesses, found the case of the complainant unbelievable, and that view taken, after perusing the materials, I find cannot be found fault. Needless to point out, the defence need only show that his version is probable whereas the prosecution has to prove its case beyond reasonable doubt. True, the accused has not established his defence version as to the stop payment instruction given to the bank, discharge of the previous loan transaction with the complainant by repayment etc. Still, where the case set up by the complainant against the accused is found unbelievable, and the proved circumstances indicating that the accused had approached the police with a complaint that the documents collected by him as Crl.A.822/03. - 9 - security are retained despite discharge of the loan transaction, the benefit of doubt extended to the accused by the learned Magistrate to absolve him of the offence imputed, is proper and correct, and the judgment of acquittal rendered in favour of the accused in the given facts does not warrant any interference. The appeal is devoid of any merit and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE