IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 CRL.A.No. 418 of 2003(A) -------------------------- (AGAINST THE JUDGMENT IN S.T.40/99 ON THE FILE OF THE Chief Judicial Magistrate Court, MANJERI.) APPELLANT(S): CLAIMANT ------------------------- RAKESH TRADE CREDITS LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR T.R.JAIN, BY POWER OF ATTORNEY HOLDER P.P.ABDUL MAJEED, S/O. ALAVI, POOVILPETTY HOUSE, MULLAMPARA, MANJERI. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. M.HUSSAIN, S/O. MOIDEENKUTTY, MARASAMVELIYIL HOUSE, MANNANCHERRY P.O., AMBALAKULANGARA, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.K.AJITH KUMAR FOR R1 PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 418 OF 2003 = = = = = = = = = = = = = = = Dated this the 9th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in S.T.40/99 of the Chief Judicial Magistrate Court, Manjeri. The brief facts necessary for the disposal of the appeal are stated as follows. It is the case of the complainant that the accused had purchased a vehicle under a hire purchase agreement and on account of a final settlement on 25.7.98 towards the discharge of the liability had issued a cheque for Rs.1,33,150/- which when presented for encashment returned with insufficiency of funds. Thereafter notice was issued and action initiated. 2. The case of the defence appears to be that there was no such transaction as alleged by the prosecution. It is his case that he had gone to a private financing company for the purpose of purchasing a vehicle and in that establishment he met the Managing Director of the complainant's company Crl.A. 418 OF 2003 -2- namely Jain and it was informed that a vehicle is available for Rs.65,000/- and that the accused can purchase the same by remitting the amount of Rs.65,000/- in 13 equal monthly instalments. The vehicle so purchased was not in a good condition. The contention is that in order to perform the contract towards security a blank cheque was given and that blank cheque is utilized for the purpose of filing the case. 3. Now, the only matter to be looked into is, being a criminal prosecution whether the complainant has discharged his burden to establish that the accused had issued a cheque towards the discharge of the liability. According to the complainant the original transaction is for Rs.1,10,000/- with a stipulation to pay the amount in 30 monthly equal instalments. It is the definite case of the complainant that on 25.7.98 the accused came over and settlement was arrived whereby it was fixed that the amount due to the complainant at Rs.1,33,150/-. It is his case that towards the discharge of the liability a cheque was issued and the dishonour of the cheque is the cause of action. Now, the learned Chief Judicial Crl.A. 418 OF 2003 -3- Magistrate had analysed the evidence threadbare in this case and had pointed out the improbability and impossibility to accept the case of the complainant. 4. It has to be remembered that, according to the prosecution, the amount due on 25.7.1998 is Rs.1,33,150/-. On 1.6.1998 the complainant issued a notice to the accused stating that there was a hire purchase agreement for Rs.65,000/- and you have to pay that amount. When confronted with such difficult situation the blame was put on the lawyer contending for the position that the lawyer had issued the notice without knowing about the settlement. But it can again be seen that another notice is issued as Ext.D2 and yet another notice on 26.2.1999 as Ext.D5. In Ext.D2 notice also the amount shown is Rs.78,000/-. So issuance of Ext.P13 coupled with Exts.D2 and D3 would conclusively establish one factor namely that there was no settlement talk as alleged by the complainant on 27.5.98. It is not a private transaction between the two individuals. It is a company which enters into a transaction or a settlement. When a company enters Crl.A. 418 OF 2003 -4- into a transaction or a settlement it has to be evidenced by documents which is kept in the ordinary course of business everyday. Absolutely no scrap of paper is produced in support of the contention raised by the complainant in this case. Then the learned Chief Judicial Magistrate has pointed out the contention of the complainant that it has nothing to do with the Priyanka Financiers at Muvattupuzha. The learned Chief Judicial Magistrate relies upon the statement in the notice to the effect that the amount has to be paid by the accused to the complainant's representative at Priyanka Financiers, Muvattupuzha. So what is spoken to and projected by the complainant appears to be totally incorrect and therefore it has to be held that the evidence is not sufficient. It has to be always remembered that a mere admission of a signature in a blank cheque does not amount to execution of a document. Here, there is a specific contention that only a blank signed cheque has been given. There was a duty cast upon the complainant to prove the execution of the same then only the legal presumptions u/Ss. 118 and 113 of the N.I.Act would Crl.A. 418 OF 2003 -5- follow. It is absolutely lacking and therefore execution of cheque D1 is not proved. When it is so presumption does not arise. The case set up by the accused appears to be more probable and acceptable. 5. Lastly, the learned counsel would submit that it was the burden on the accused to prove that there was no mediation. It is a well settled principle that u/s 315 Cr.P.C. no accused can be compelled to give evidence and further the non-supply of a material by an accused cannot be commended upon in a criminal proceedings. So that argument also cannot be accepted. So, on an evaluation of the entire materials, I find that the learned Chief Judicial Magistrate had only arrived at a proper decision on a consideration of the materials made available before him. The appeal lacks merit and therefore it is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 418 OF 2003 -6- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 418 OF 2003 = = = = = = = = = = = J U D G M E N T 9th June, 2009