IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 CRL.A.No. 659 of 2003() --------------------------------- CC.1/2001 of JUDL. MAGISTRATE OF THE FIRST CLASS, ERATTUPETTA .................................................................... APPELLANT(S): COMPLAINANT --------------------------------------------- ROY ABRAHAM, MALANADU AUTOMOBILES, CHERUPURATHU VEEDU, ERATTUPETTA P.O. BY ADV. SRI.ISSAC M.PERUMPILLIL RESPONDENT(S): ACCUSED & ANOTHER ------------------------------------------------------------ 1. P.T.THOMAS, PULICKAL VEEDU, ARUVITHURA P.O., KOTTAYAM DISTRICT. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS.SRI.MATHEW JOHN FOR R1 SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.659 of 2003 ------------------------------- Dated this the 3rd day of March, 2010. J U D G M E N T This appeal is at the instance of the complainant in a prosecution for the offence punishable u/s.138 of Negotiable Instruments Act, as he is aggrieved by the order of the acquittal passed by the court below u/s.255(1) of Cr.P.C. 2. The 1st respondent herein is the accused. The case of the complainant is that the accused borrowed a sum of Rs.2,50,000/- from the complainant and towards the discharge of the said liability, a cheque dated 11.9.2000, drawn on the State Bank of India, Erattupetta Branch, for the said amount, was issued and when the said cheque presented for encashment, it was dishonoured due to 'insufficiency of funds' in the account maintained by the accused. Thus, after sending a lawyer notice which was received by the accused and as there is no payment as demanded, the complainant approached the Judicial First Class Magistrate Court, Erattupetta by filing a complaint for the offence punishable u/s.138 of the Negotiable Crl. APPEAL No.659 of 2003 2 Instruments Act, which received on file as C.C.1/01. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P6. From the side of the defence Dws.1 to 3 were examined and produced Exts.D1 to D11. 3. The specific defence set up by the accused is to the effect that, between the accused and the complainant, there was a transaction and he used to purchase spare parts from him and towards that transaction, he had issued a blank signed cheque as a security, which now mis-used by the complainant for filing the above case. Exts.D1 to D10 are the series of bills pertained to, the purchase of spare parts from the complainant and Ext.D11 is the expert report, which proved through DW2, to show that the writings on the cheque is not that of the accused. On the basis of the above materials and evidence on record, the Trial court had specifically found that the accused is not guilty and accordingly he is acquitted. It is the above order of acquittal, sought to be interfered with and reversed into a conviction. Crl. APPEAL No.659 of 2003 3 4. I have heard Shri. Isaac M.Perumpillil, the learned counsel appearing for the appellant and the learned counsel appearing for the contesting respondent. 5. The learned counsel vehemently submitted that, the complainant has established the transaction between the accused and the complainant and the order of acquittal recorded by the Trial Court is simply on the sole factor that there are certain alteration in Ext.P1 cheque in the light of Ext.D11. But according to the counsel the Trial court has miserably failed to consider and appreciate the positive evidence adduced by the complainant in its true perspectives and the Trial Court ought to have held that the complainant has established his case by invoking the statutory presumption as envisaged by Section 118 (a) and 139 of the Negotiable Instruments Act. 6. I have carefully considered the arguments advanced by the learned counsel for the appellant and also perused the materials and evidence on record. 7. Admittedly, the specific case of the appellant/ Crl. APPEAL No.659 of 2003 4 complainant is that, the accused borrowed a sum of Rs.2,50,000/- from the complainant and towards the discharge of the above liability, the accused executed the cheque and issued the same to the complainant. On the other hand, the specific defence of the accused is that when Ext.P1 cheque was given to the complainant, it was only a blank one which bears only his signature and the same was given as security towards the transaction between himself and the complainant, with respect to the purchase of spare parts. In order to establish the above defence case, the accused has examined Dws.1 and 2 and he himself mounted to the box and deposed before the court as DW3. To prove the transaction between the accused and the complainant, as claimed by him, he produced Exts.D1 to D10. As indicated above Exts.D1 to D10, are the bills issued by the complainant in the name of the accused connected with the spare parts sales. The evidence of DW2, coupled with the documentary evidence, Ext.D11 would show that, except the signature of the accused that contained in Ext.P1, all other Crl. APPEAL No.659 of 2003 5 endorsement in the cheque are not of the accused. On the other hand, the case of the complainant is that the cheque in question was filled up and executed by the accused and he put the signature thereon. The above claim is disproved by the positive evidence adduced by the defence. By producing Exts.D1 to D10 and adducing the substantial evidence through Dws.1 and 3, the accused had succeeded in disproving the case of the prosecution, that the accused had borrowed a sum of Rs.2,50,000/- from the complainant. From the side of the complainant, except the self serving testimony of PW1 and Ext.P1 cheque, there is no other dependable and acceptable evidence. Therefore, even though the complainant has produced Ext.P1 cheque, by making out a prima facie case by adducing concrete evidence including expert evidence, the defence had succeeded in establishing a probable case by which the accused had discharged his burden to rebut the presumption, which is otherwise available to the complainant. Therefore, I have to concur with the finding of the Trial Court. Crl. APPEAL No.659 of 2003 6 8. In the decision reported in [2009(2)KLT 897] Bhaskaran Nair v. Mohanan, this court has held that, when the execution and issuance of the cheque is denied by the accused the court has to examine the evidence of the complainant more so carefully. On examination of the case of the complainant in the light of the above decision and on scrutiny of the evidence, I am of the view that the Trial Court is fully justified in its finding and acquitting the accused. 9. The Apex Court, through a catena of decisions in, [2009 (1)Supreme 67] Batcu Venkateshwarlu & Ors. Vs. P P High Court of A.P. and [2009(1) Supreme 355] Arun Vs. State by Inspector of Police, Tamil Nadu, has held that by an order of acquittal, there are two presumptions of innocence in favour of the accused and unless there are compelling circumstances and reasons, no interference shall be made, by the appellate court with the order of acquittal. My careful consideration and scrutiny of the evidence on record, in the light of the above decisions, persuaded me to held that there are no such compelling Crl. APPEAL No.659 of 2003 7 circumstances and reasons. In the result, there is no merit in this criminal appeal and accordingly the same is dismissed. V.K.MOHANAN, Judge. ami/