IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 CRL.A.No. 2146 of 2006() ------------------------ CC.620/2005 of JUDL. MAGISTRATE OF FIRST CLASS-1, KOTTAYAM .................... APPELLANT: COMPLAINANT: -------------------------- K.S. RAJESHKUMAR, AMBAZHATHINAL HOUSE, POOTHAKUZHY P.O., PAMPADY, KOTTAYAM. BY ADV. SMT.C.G.PREETHA RESPONDENTS: STATE & ACCUSED: ------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DILEEPKUMAR T.P., PROPRIETOR, AGRO HARDWARES, PAMPADY (THANATHUKARA HOUSE, PAMPADY P.O., KOTTAYAM). R2 ADV. SMT.SANDHYA RAJU & SMT.RASHMI RAMESH R1 BY PUBLIC PROSECUTOR SMT. LOWSY A THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 2146 of 2006 ---------------------------------------- Dated the 1st day December, 2011 JUDGMENT The complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act is the appellant herein as he is aggrieved by the judgment dated 9.8.2006 in C.C.No.620 of 2005 of the court of Judicial First Class Magistrate-1, Kottayam, by which the learned Magistrate acquitted the accused under section 255(1) Cr.P.C. 2. The case of the complainant is that the accused issued Ext.P1 cheque dated 7.10.2004 for an amount of Rs.2,00,000/- (Rs.two lakhs only) in discharge of a liability due to the complainant, connected with a loan obtained by the accused from the complainant. According to the complainant, when the cheque presented for encashment, the same was returned for the reason that the account was closed and the accused has not paid the dishonoured cheque amount in spite of the statutory notice and therefore, the accused has committed the offence punishable section 138 of the N.I Act. With the above allegation, the complainant approached the court of Judicial CRL.A.NO.2146/06 :-2-: First Class-I, Kottayam, by filing a complaint, whereupon , cognizance was taken and instituted C.C.No.620/2005. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P7 documents. From the side of the defence, Dws 1 to 3 were examined and produced Exts.D1 to D7. After considering the entire evidence and materials, the learned Magistrate of the trial court has found that the accused has succeeded in rebutting the initial burden and hence the presumption under section 139 is not available to the complainant and therefore, it is incumbent upon the complainant to prove his case beyond reasonable doubt, but he failed to adduce any evidence to show that the accused issued Ext.P1 cheque for Rs.2 lakhs to the complainant on 7.10.2004 in discharge of his debt due to the complainant. Thus the complainant has failed to prove his case beyond reasonable doubt and accordingly, the accused is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal are challenged in this appeal. 3. I have heard Smt. C.G.Preetha, the leaned counsel CRL.A.NO.2146/06 :-3-: appearing for the appellant and Smt. Sandhya Raju, the counsel appearing for the respondent. 4. Resisting the claim of the complainant and the allegation raised against the accused, the case putforth by the accused is that, the accused entrusted three blank cheque leaves with one Prabhakaran to hand over the same to the shop owners from whom the accused purchased goods for his shop, along with a blank signed paper and some amount and, the purse contained those documents was lost from Prabhakaran, consequently, the accused issued a stop memo to his bank connected with the three cheque leaves lost from the possession of Prabhakaran on 13.12.2000. According to the accused, when he received the statutory notice in the present case, he came to know that the cheque leaves lost from his possession in 2000 presented in the bank. According to the accused, a proper reply was given to the statutory notice setting forth the above reason. According to the defence, the account to which Ext.P1 cheque pertains was closed during the year 2003. The accused has further stated that he has no financial transaction with the complainant and CRL.A.NO.2146/06 :-4-: he did not issue any cheque to the complainant. 5. The learned counsel for the appellant vehemently submitted that the accused has not disputed the signature that contained in Ext.P1 and has no counter claim that Ext.P1 cheque is not pertained to the account of the accused. It is also the submission of the learned counsel that though the accused had set up a case to the effect that he had issued a stop memo on 13.12.2000, the same is unbelievable since the facts stated in support of the defence taken by the accused are not free from doubt and those facts are not proved properly. Thus according to the learned counsel, the alleged stop payment and closing of the account etc are done by the accused fraudulently so as to get unlawful gain and to escape from the penal liability. Therefore according to the learned counsel, the court below when considered the merit of the case putforth by the complainant as well as the accused, simply accepted the case of the defence and erroneously found that the defence had succeeded in rebutting the presumption. The learned counsel further submitted that the evidence of PW1 is sufficient to prove the CRL.A.NO.2146/06 :-5-: execution of Ext.P1 cheque and the transaction between the complainant and the accused and if this court is of opinion that there is no ample evidence to substantiate the claim of the complainant regarding the transaction, execution and issuance of the cheque, the case may be remitted back to the trial court with a liberty to the complainant/appellant to adduce evidence. 6. The learned counsel for the respondent submitted that the findings of the court below is based upon the materials and evidence on record and the reasons assigned by the court below are acceptable and there is no illegalities or irregularities to interfere with such findings. 7. I have carefully considered the arguments advanced by the counsel for the appellant and the respondent and I have also gone through the judgment of the trial court and the materials and evidence on record. 8. In the light of the rival contentions advanced by the counsel for the appellant, as well as the respondent, and in the light of the evidence and materials on record, the question to be considered is whether the findings of the learned CRL.A.NO.2146/06 :-6-: Magistrate is correct and justified in the light of the evidence and materials involved in this case and whether the appellant has succeeded in making out a case so as to interfere with the order of acquittal recorded by the learned Magistrate. 9. As I indicated earlier, the specific case of the appellant/complainant is that the accused borrowed a sum of Rs.2 lakhs, out of the relationship between the complainant and the accused, and towards the discharge of the said liability, the accused issued Ext.P1 cheque which was dishonoured. Whereas the defence denied the transaction and the execution and issuance of the cheque in favour of the complainant. it is the further case of the defence that Ext.P1 cheque is one among three cheque leaves which lost from DW2, when the accused entrusted the same with DW2 connected with his business purpose. According to the defence, the cheques were lost during the year 2000 and accordingly the accused issued a letter to his bank authorities on 13.12.2000 requesting to stop payment and the account which was maintained by the accused was closed on 15.9.2003 and all these facts were stated in the reply affidavit CRL.A.NO.2146/06 :-7-: given to the complainant. On the basis of the above rival contentions, the court below formulated two points for its consideration and finally, came into the conclusion which I indicated earlier, and accordingly , acquitted the accused. 10. On a scanning of the evidence and materials on record, as rightly found by the learned Magistrate, it can be seen that to prove the case of the complainant, the only evidence available on record is that of the deposition of the complainant himself and Exts.P1 to P7 documents, out of those records Ext.P1 is the cheque in question and Exts.P2 and P3 are the documents connected with the dishonoured cheque and Exts.P4 to P6 are the documents connected with the statutory demand. Ext.P7 is the copy of the statement of account with respect to Ext.P1 cheque. In order to prove the transaction claimed by the complainant, there is no independent evidence or any contemporary documents. It is also relevant to note that as pointed out by the learned magistrate, neither in the complaint nor in the proof affidavit, any details regarding the transaction, execution and issuance of the cheque are stated. The details with respect to the CRL.A.NO.2146/06 :-8-: transaction, execution and issuance of the cheque are spoken to by PW1 only when he was examined. In this juncture it is relevant to note that the probable case of the defence was conveyed to the complainant by issuing Ext. D4 reply notice and thus, though the complainant was aware of the defence of the accused, either at the time of filing the complaint or in the proof affidavit no details are shown with respect to the matters which I pointed out earlier. It is true that Ext.P1 cheque bears the signature of the accused and the same pertained to the account which was once maintained by the accused but closed on 13.9.2003. It is now settled that, even though the drawer admitted the signature in the cheque in question, the same is not sufficient to hold that he had executed and issued the cheque. It is for the complainant/the claimant to prove the execution and issuance of the cheque and the consideration thereon. But in the present case as I indicated earlier, the evidence of the complainant in those respects are insufficient and unrealiable. 11. The learned Magistrate has accepted the defence version, which I have already referred to, and found that the CRL.A.NO.2146/06 :-9-: accused has succeeded in establishing a probable case. The learned counsel for the appellant submitted that the accused has not succeeded in establishing the version of defence by him in the court and therefore it cannot be said that the accused has succeeded in probablising the case and thereby discharged the burden as contemplated under section 139 of the Act. To substantiate the above contention, the learned counsel submitted that the evidence of Dws 2 and 3 are not reliable. According to the learned counsel, it is quite unbelievable that blank signed cheques were taken to be given as security in the transaction. It is also pointed out by the counsel that though Dws. 2 and 3 claimed that complaint was filed before the police, no document is produced and such a complaint was not further pursued. I am unable to accept the above contention, particularly, in the backdrops of the case of the complainant as well as the defence. According to PW1, the accused executed the cheque and issued the same on the demand of the complainant and the cheque bears a date, i.e.,7.10.2004. While denying the transaction claimed by the complainant, the specific case taken by the accused CRL.A.NO.2146/06 :-10-: is to the effect that Ext.P1 is one of the cheque leaves lost from the possession of DW2 and consequently, the accused has issued a letter to his banker not to honour the cheques which mentioned in his letter. Though the original of the letter is not produced, a photostat copy of the same produced before the court which was marked as Ext.D3. The counsel submits that Ext.D3 cannot be acted upon since it is a photo copy and the same bears no date. But it is relevant to note that in Ext.D2, there was an endorsement in terms of Ext.D3. Ext.D2 is the extract of the relevant page of the stop payment register, maintained by the banker of the accused during the course of its regular business, from where it can be seen that consequent to the letter received, appropriate endorsement was made and the contemporary nature of that endorsement and Ext.D2 cannot be disputed, especially, when the complainant has no case that Ext.D2 was falsely or illegally recorded by the banker of the accused. If that be so, according to me, even if the evidence of DW2 and DW3 is not up to the standard as argued by the learned counsel for the appellant, give assurance about the correctness of the CRL.A.NO.2146/06 :-11-: defence version. In the present case, it is relevant to note that the stop payment was issued on 13.12.2000 whereas Ext.P1 cheque bears the date 7.10.2004. In the absence of any positive and independent evidence, with respect to the transaction and execution and issuance of the cheque, I find no reason to interfere with the finding of the learned Magistrate that the accused has succeeded in establishing a probable case based upon the defence evidence, particularly, Ext.D2 contemporary document as well as the evidence of DW 2 and DW3. From the above discussion, and the materials and evidence referred to above , it can be seen that the accused had succeeded in probablising his case by producing the contemporary document like Ext.D2, which is a part of the book maintained by his banker during the course of its business. The Apex Court, in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008(1) KLT 425(SC), has held:” “An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record”. CRL.A.NO.2146/06 :-12-: It is further held: “The standard of proof on the part of an accused and that of the prosecution in a criminal case is different”. It is also held as follows: “Whereas the prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is “preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies”. In the above decision, the Hon'ble Apex Court relied on another decision, i.e.,M.S. Narayana Menon v. State of Kerala (2006) 6 SCC 39) wherein it is held that, once the accused is found to discharge his initial burden, it shifts to the complainant. Thus, on an application of the above dictum, in the facts and circumstances involved in the case, according to me, the defence had succeeded in establishing a probable case, especially by producing independent and contemporary documents like Ext.D2. Thus in the absence of any positive and independent evidence to prove the case of the CRL.A.NO.2146/06 :-13-: complainant, all contentions raised by the learned counsel, against the acceptance of the defence case, which are based upon available materials, are liable to be rejected. 12. The learned counsel for the appellant strenuously submitted that while issuing Ext.P1 cheque, the accused had maintained a hostile intention and thus he issued Ext.P1 cheque from a closed account and fully knowing that Ext.P1 cheque was the one which mentioned to the banker as per his letter for stop payment. To substantiate the above contention, there is no evidence or materials, especially when the complainant has miserably failed to prove that the accused has executed and issued Ext.P1 cheque on 7.10.2004. Even if the evidence is available to support the above contention, according to me, this Court will not be justified in taking a different view so as to interfere with the order of acquittal recorded by the trial court. It is pertinent to note that by assigning cogent and acceptable reason, the learned Magistrate has judicially decided to accept the case of the defence which cannot be treated as a perverse finding so as to interfere with the order of acquittal, recorded CRL.A.NO.2146/06 :-14-: by the learned Magistrate. The appellant has no case that the court below has overlooked any material or evidence, either produced by the complainant or the defence and came into a perverse finding. Therefore I find no reason to interfere with the findings of the court below and the order of acquittal recorded by the learned Magistrate and, accordingly, the same is confirmed. In the result, there is no merit and accordingly, this appeal is dismissed. V.K. MOHANAN JUDGE kvm/- CRL.A.NO.2146/06 :-15-: