IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 CRL.A.No. 840 of 2004 ----------------------- CC.125/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... APPELLANT: COMPLAINANT. -------------------------- RAJI MON C.D. HOUSE, NO.48/361 A, PERANDOOR ROAD, VARAMEL LANE, ELAMAKKARA P.O. KOCHI. BY ADV. SRI.R.PARTHASARATHY SMT.S.LAKSHMY RESPONDENTS: ACCUSED AND STATE. --------------------------------- 1. VALSA N.O. D/O.OUSEPH VARKEY, MALLARIKUNNEL HOUSE, KAKKOOR P.O. KOOTHATTUKULAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BIJU ABRAHAM R2 BY PUBLIC PROSECUTORSMT. ANEY PAUL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD 21/3/2011,THE COURT ON 24/6/2011 DELIVERED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.APPEAL NO. 840 OF 2004 ======================= Dated this the 24th Day of June 2011 JUDGMENT The appellant is the complainant in C.C.No.125/2001 on the file of the Judicial First Class Magistrate-II, Aluva which was filed under Section 138 of the Negotiable Instruments Act. As per judgment dated 13/11/2003, the accused was acquitted under Section 255(1)Cr.P.C. which is challenged by the appellant/complainant in this appeal. 2. The case of the complainant is that Ext.P1 cheque dated 16/8/2000 for Rs.88,250/-was issued by the accused to the complainant towards the price of textile goods purchased by the accused from the complainant. When that cheque was presented for collection, it was dishonoured by the Bank due to insufficiency of funds in the account of the accused. Accordingly,lawyer notice dated 17/11/2000 was issued to the accused which was received by the accused. She had neither sent a reply nor paid the CRA 840/2004 -2- amount. Since the accused failed to pay the amount covered under Ext.P1 cheque, the complaint was preferred by the complainant before the learned Magistrate. On the side of the complainant/appellant, PW1 was examined and Exts.P1 to P7 were marked. The accused was examined as DW1 and Exts.D1 to D4 were marked on the defence side. After considering the evidence on record, the learned Magistrate acquitted the accused which is challenged in this appeal. 3. Heard the learned counsel appearing for the complainant/appellant and learned counsel for the accused/first respondent. Heard the learned Public Prosecutor also. 4. The learned counsel for the appellant has submitted that the order of acquittal of the accused is illegal and unsustainable. According to the learned counsel, presumption under Sections 118 and 139 of the Negotiable Instruments Act is in favour of the complainant and it was not rebutted by the accused. The learned counsel has also argued that the accused has admitted the execution of Ext.P1 cheque which was not considered by the learned Magistrate. The learned Magistrate erred in holding that Ext.P1 cheque was issued as a security and without CRA 840/2004 -3- consideration. The complainant was examined as PW1 to prove the case advanced against the accused in the complaint. PW1 has deposed that the accused purchased textiles from him and Ext.P1 cheque was issued in his favour by the accused towards price of the same. According to PW1, there are bills to evidence purchase of textiles by the accused which can be produced before court, but the same has not been produced. The accused denied the case of the complainant and according to her, she had no transaction with the complainant. The defence case is that she had handed over five signed blank cheques to Atul Bathra, the owner of Rajalakshmi enterprises while she joined as Manager at Thiruvananthapuram Branch. According to her, she joined in that firm on 20/5/1998 and worked as the Manager at Thiruvananthapuram from 16/8/1998 to 19/10/2000. Those five signed blank cheques and one bond were handed over by her as security in the month of February 2000. One of that cheque was misused and filled up by the complainant which is marked as Ext.P1. The execution of Ext.P1 cheque as such in favour of the complainant as alleged in the complaint has been denied by the accused. The case of the accused during cross examination of CRA 840/2004 -4- PW1 as also when examined as DW1 which has been reiterated in the 313 Cr.P.C. questioning is to the effect that she was working as the Manager at Rajalakshmi Enterprises, Thiruvananthapuram owned by Atul Bathra to whom she handed over 5 signed blank cheques as security which was not returned to her for which she preferred a complaint before Piravom police. The accused was working as the Manager at Rajalakshmi Enterprises which was proved from Ext.D2, the Insurance Policy issued on 24/2/1999 from the Life Insurance Corporation of India. No document has been produced by the complainant to show that he was conducting textile business at Elamakkara. It is pertinent to note that even according to the complainant, there was no sales tax registration, no panchayat licence and no document to prove that he was doing any business. The complainant has admitted that he was working at Rajalakshmi Enterprises from 1996 to 1998 and Atul Bathra was the owner of that firm. But he did not know whether the accused was working as the Manager of Rajalakshmi Enterprises, Thiruvananthapuram Branch. According to DW1, she was worked at Rajalakshmi Enterprises till 19/10/2010. Thereafter, the management was CRA 840/2004 -5- changed. Though she had requested to return the blank cheques given by her to Atul Bathra at the time of joining that firm, it was not returned. Ext.D4 is the reply notice dated 25/11/2000 which was issued by the accused . Ext.P4 is the lawyer notice sent by the complainant. It was specifically stated in the reply notice also that the accused handed over five blank cheques and one bond to Atul Bathra as security while she joined in the office at Thiruvanathapuram and one of the cheque was given by Atul Bathra to his friend Reji, the complainant herein and that there was no transaction between the complainant and the accused. In spite of the specific denial of the transaction between the complainant and the accused, the bills which were in the possession of the complainant as deposed by PW1 in the cross examination to evidence the transaction between the complainant and the accused were not produced. 5. The entire dealings as offered in the complaint and also spoken to by PW1, the complainant, has been denied by the accused when examined as DW1. According to her, she has handed over 5 signed blank cheques to Atul Bathra as security while she joined at Rajalakshmi Enterprises, one of that cheque CRA 840/2004 -6- was given to the complainant who is the friend of Atul Bathra and the complainant has manipulated that cheque by adding the date, amount etc. and there was no business transaction between her and the complainant. Thus the burden is on the complainant to prove the execution of Ext.P1 cheque by the accused. Then only the presumption under Sections 118 and 139 of the Negotiable Instruments Act will be available in favour of the complainant. 6. Considering the evidence both orally and documentary it was found by the learned Magistrate that the execution of Ext.P1 cheque has not been proved and that complainant has failed to prove that the accused has committed the offence under Section 138 of the Negotiable Instruments Act. Accordingly, the learned Magistrate acquitted the accused. I find that there is no ground to interfere with the findings entered into by the learned Magistrate and the same is confirmed. In the result, this appeal is dismissed. M.C. HARI RANI JUDGE ks.