IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 Crl.L.P..No. 65 of 2011() ------------------------- ST.1003/2005 of J.M.F.C.-I, ALUVA .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ JOSE DEVASSY, S/O.DEVASSY, KOORAM HOUSE, ANSAR LANE, ALUVA. BY ADV. SRI.V.K.ISSAC SRI.K.K.APPU SRI.GIMMY P ANTONY RESPONDENT(S): ACCUSED & FORMAL PARTY ------------------------------------- 1. C.M.VIJAYAN, S/O.MUNDAN, CHIRANGARA HOUSE, NEAR ST.JOSEPH CHURCH, NEDUNGAPRA P.O., PIN - 683 545. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. L.P. No.65 of 2011 ----------------------------------------------- Dated 28th January, 2011. O R D E R This petition is filed for special leave to file an appeal against an order of acquittal. 2. Petitioner is the complainant. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). According to petitioner, accused was having business in Ginger and dried Ginger. When he had financial difficulty, he borrowed Rs.1,30,000/- from complainant. Thereafter, when repayment was demanded, he issued a cheque dated 20.7.2004 drawn on his bank. On presentation of the cheque for collection through the complainant's bank, it was returned unpaid with the remark “payment stopped by the drawer”. Statutory notice was issued to which accused sent a reply. He did not pay the amount and hence, complaint was filed. 3. To prove the prosecution case, complainant examined PW1 to PW3 and marked Exts.P1 to P12. Accused examined himself as DW1 and marked Exts.D1 to D5. According to accused, the cheque book containing the cheque Crl.L.P. No.65/11 2 leaves (Ext.P1) was issued to him in the year 1996. He had issued Ext.P1 in blank form to M/s.Paraman Finance as a security for loan, but those cheques were not returned to him. He had issued a stop memo to the bank. The cheque (Ext.P1) was issued 7 years back and this fact was stated in the reply notice. 4. The trial court analysed the evidence in detail and found that complainant has not proved passing off consideration and execution of cheque. Referring to the evidence adduced in this case, it was also found that the argument of learned counsel appearing for accused that “it is improbable that accused had kept the cheque leaves for 8 years and issued Ext.P1 cheque to complainant cannot be brushed aside”. The reasons given for arriving at such findings are in paragraph 13, which are extracted hereunder : “Ext.D1 is a letter dated 29.9.2008 issued by the Secretary, the Nedungapra Service Co-operative Bank Ltd., to the accused. It shows that a cheque book bearing cheque leaves Nos.3131 to 3140 had been issued to the accused as early on 12.07.1996. It is stated in Ext.D1 Crl.L.P. No.65/11 3 letter that the cheque Nos.3131, 3132, 3133, 3135, 3136 & 3140 were presented and encashed on 12.07.1996, 16.07.1996, 18.07.1996, 28.01.1998, 31.01.1998 and 28.08.1997 respectively. It is again stated in Ext.D1 letter that the cheque Nos.3134, 3138 and 3139 were not presented in the bank. It is further stated in Ext.D1 letter that Ext.P1 cheque bearing No.3137 for Rs.1,30,000/- was returned due to stop memo issued by the accused. The case of the accused in his reply notice dated 28.09.2004 was that at about 7 years back, the accused had issued blank cheques bearing No.3137, 3138 & 3139 of Nedungapra Service co-operative Bank to M/s.Paraman Finance, Nedungapra as security for a loan and those cheques were not returned to him. So, the argument of the learned counsel appearing for the accused that it is improbable that the accused kept the cheque leaves for 8 years and issued Ext.P1 cheque to the complainant cannot be brushed aside.” 5. On going through the judgment and on hearing learned counsel for petitioner, I do not think that the findings suffer from any infirmity or perversity. Those are only supported by evidence. The trial court also found that the instrument was executed by accused at the time of receiving a huge sum of money to the tune of Rs.1,30,000/- and that the cheque does not cover the full amount which is allegedly liable Crl.L.P. No.65/11 4 to be paid to the complainant. In paragraph 12, the court found as follows : “The definite case of the complainant is that the accused has borrowed an amount of Rs.1,30,000/- from him for interest @ 12% p.a. There is no case for the complainant that at the time of borrowal of money by the accused, the cheque had been issued to him. It is the case of the complainant that when repayment was demanded, Ext.P1 cheque was issued to him. It is pertinent to note that Ext.P1 cheque does not cover the interest as stated by the complainant. Complainant has no explanation before the court as to why he waived the interest. That apart, the complainant has not stated either in the complaint or in the proof affidavit as to the date of lending of money by him to the accused, even though a huge amount was given by him. It is also pertinent to note that no instrument was executed at the time of lending money. Why no instrument was executed although a huge sum of money was allegedly paid to the accused is a relevant question which could be posed in the matter.” 6. The finding entered into by the court in paragraph 12 cannot be said to be unreasonable. It is also pertinent to note that PW3 was examined to prove passing off consideration and execution of cheque, but there is some discrepancy in his evidence, which persuaded the trial court to hold that complainant failed to prove passing off consideration and execution of cheque. The trial court found that PW3 in lieu of chief examination would swear that in the year 2004, an Crl.L.P. No.65/11 5 amount of Rs.6,000/- had been due to him from the accused in respect of rent of his vehicle etc. The trial court made the following observations about the evidence of PW3 at paragraph 11 of the order: “It is pertinent to note that PW3 would state in cross examination that he had gone to the house of the complainant along with the accused in 6th or 7th month of the year 2004. Whereas, PW1 would state in cross examination that he had lent money to the accused in April 2004. The time of borrowal as spoken to by PW1 and PW3 before the court is incongruous. That apart PW3 has sworn before the court in his proof affidavit that he and the accused went to the house of the complainant and from where the accused collected money and Rs.6,000/- was given to him. PW3 has not specifically stated before the court that he saw the accused borrowing Rs.1,30,000/- from the complainant. So the evidence tendered by PW3 cannot be taken as a ground to hold that the complainant has proved the passing of consideration and the execution of the cheque.” 7. Learned counsel for petitioner submitted that to prove the execution of the cheque, presumption under Section 118 of the Act is available to him. Therefore, the findings of the Crl.L.P. No.65/11 6 trial court are not legally sustainable. I am unable to accept this argument because it is well settled that to draw the presumption under Section 118 of the Act, the person who seeks to draw the presumption has to prove execution of the cheque. In other words, only if execution is proved, the presumption for consideration etc. under Section 118 can be drawn. I do not find any reason to interfere with the findings of the trial court, which are only sound and acceptable. No perversity is pointed out in those findings. This petition is dismissed. K.HEMA, JUDGE. tgs