IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 CRL.A.No. 1636 of 2005() ------------------------ CC.196/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... APPELLANT: COMPLAINANT ------------------------- P.RAVEENDRAN, S/O.PACHAN NADAR, KARATHALAMELE KUZHIVILA VEEDU, SANTHIPURAM, RASSALPURAM.P.O. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. DR.AMBIKA, J.J.HOMEO HOSPITAL, NEAR PANCHAYAT OFFICE, PETTA NADA, BALARAMAPURAM.P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUALAM. ADV. SRI.BLAZE K.JOSE FOR R1 R2 BY PUBLIC PROSECUTOR SMT. RAZIYA P. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/10/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No.1636 of 2005 ---------------------------------------- Dated the 11th day of October, 2011 JUDGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant herein as he is aggrieved by the judgment dated 31.3.2005 in C.C.No.196 of 2000 of the court of Judicial First Class Magistrate-III, Neyyattinkara, 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, being a family friend of the complainant, borrowed a sum of Rs.1,20,000/-from him and as a consideration of the above amount, the accused issued Ext.P1 cheque dated 1.2.2000 on the date of borrowal of the amount. It is the further case of the complainant that the cheque when presented for encashment was dishonoured for the reason, ''payment countermanded by the drawer”. According to the complainant , even though a statutory notice was sent to the accused requesting the repayment of the cheque amount, the amount was not paid in spite of the receipt of notice. Thus According to the CRA 1636/05 2 complainant, the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. With the said allegation, the complainant approached the court of Judicial First Class Magistrate-III, Neyyattinkara by filing a complaint upon which cognizance was taken under section 138 of the NI Act and instituted C.C.No.196/2000. During the trial of the case, besides the complainant who was examined as PW1, PW2 was also examined and produced Exts.P1 to P10. From the side of the defence, DWs 1 to 3 were examined and marked Exts.D1. After considering the entire evidence and materials, the trial court has found that the complainant failed to prove that Ext.P1 cheque is supported by consideration and was issued for discharge of a legally enforceable debt, from out of the account of accused maintained with a banker and consequently, the accused is acquitted under section 255(1)Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri Pirappancode V.S.Sudheer and Sri Blaze K.Jose, the counsel appearing for the Ist respondent. 4. Learned Counsel for the appellant vehemently submitted that the findings of the learned Magistrate is CRA 1636/05 3 absolutely incorrect and illegal and that too without any evidence or materials on record. In order to substantiate the above contention, the learned counsel submitted that the contradictory or divergent version of the accused itself is sufficient to hold that the finding of the Learned Magistrate is incorrect. According to the learned counsel, the accused has not produced any evidence to substantiate her defence version. The learned counsel vehemently submitted that though the case set up by the accused in Ext.P7 reply notice is to the effect that the cheque in question was taken away by DW2, who was an Attender of the hospital run by the accused, when she was examined in the court as DW3, her version is to the effect that she was in the habit of issuing signed cheques to the staffs of her hospital for the purposes of payment to the representatives of the medical companies who supplied medicines and the cheque in question is one of such cheques. The learned counsel pointed out that, though the above divergent version is taken by the accused, no iota of evidence is taken by the accused, at least to show that DW2 Chandran was one of the staff of the hospital run by the accused. According to the CRA 1636/05 4 learned counsel, in the absence of any positive evidence in this regard, the Learned Magistrate is wrong in accepting the case of the accused disbelieving the case of the complainant. It is also the submission of the learned counsel that the defence witness namely, DW1 deposed against the defence and the evidence of DW1 was ignored by the learned Magistrate and the learned Magistrate went to the extent in observing that there is no evidence for the transaction. Thus according to the learned counsel for the appellant, the judgment of the trial court is liable to be set aside and the respondent/accused may be found guilty and he may be sentenced for the offence under section 138 of the NI Act. 5. On the other hand, the learned counsel for the first respondent/accused vehemently submitted that the transaction claimed by the complainant is not properly proved and therefore, the complainant is not entitled to get presumption under section 139 of the NI Act. It is also the submission of the Learned counsel for the accused that, the accused is free to take divergent pleas and in this case, the evidence of PW2 itself is sufficient to show that the defence set up by the accused is CRA 1636/05 5 correct and supported by contemporaneous documents. Thus according to the Learned counsel, the observations and findings arrived on by the court below is fully correct and no interference is warranted. 6. I have carefully considered the arguments advanced by the counsel on both sides and also perused the judgment of the trial court. I have also gone through he evidence and the materials on record. In the light of the rival arguments advanced by the counsel for the rival parties and in view of the materials and evidence on record, the question to be considered is whether the trial court is justified in acquitting the accused under section 255(1) Cr.P.C 7. On a scanning of the judgment impugned and the evidence on record, it can be seen that the claim of the complainant is that he had advanced an amount of Rs.1,20,000/- to the accused - who is a lady and a doctor by profession - on 1.2.2000 and on the same day itself, the accused issued Ext.P1 cheque towards the repayment of the said amount and the complainant has presented the cheque, on 1.2.2000 itself for encashment. The above version of the complainant itself is CRA 1636/05 6 highly doubtful and not acceptable. It is relevant to note that though the complainant has claimed that the amount was advanced out of friendship, no evidence is adduced in this regard. In the impugned judgment, the learned Magistrate has discussed the claim of the complainant about the transaction. The observation and conclusion made by the learned Magistrate appears to be correct since there is no explanation or evidence as to under what circumstances and for what purpose the accused borrowed Rs.1,20,000/- from the complainant and under what circumstances the accused issued Ext.P1 cheque bearing date 1.2.2000, if the alleged transaction was on 1.2.2000. As I indicated earlier, the accused is a lady who was conducting a Homoeo clinic. No details are forthcoming from the complainant or from the evidence of the complainant as to under what circumstances the accused borrowed the amount from the complainant. The case of the complainant has to be further scrutinized in the background of the defence set up by the accused. 8. The specific case of the accused is that she never borrowed any money from the complainant and she never CRA 1636/05 7 executed and issued Ext.P1 cheque in favour of the complainant. This is the case set up by the defence at the very beginning of the proceedings. In Ext.P7 reply notice itself, the accused has conveyed her defence to the complainant that Ext.P1 cheque is one which taken away by DW2 forcefully. It is true, when the accused herself was examined, she deposed that she used to entrust signed blank cheque with her staff so as to make payment to the company who supplied medicine to her hospital. It is a settled proposition of law that, the accused can take divergent plea and the same is not a ground to disbelieve the case of the defence or to accept the case of the complainant. But in the present case, it is pertinent to note that, in the account, to which Ext.P1 cheque is pertained, the payment was stopped on 8.3.1999. It is relevant to note that Ext.P6 lawyer notice dated 19.2.2000 was issued nearly one year after the stopping of the payment on 8.3.99. So the defence version that the cheque in question was the one which lost during the year 1998 appears to be correct which probabilise the defence version. 9. The learned counsel for the appellant submitted that CRA 1636/05 8 though the accused has got a case that the cheques were lost during the year 1998, no timely intimation was given to the bank and no police complaint was filed then and there by the accused and therefore , the case of the accused cannot be believed. I am unable to sustain the above contention. The proceedings adopted by the accused connected with the loss of the cheque leaves in this case is relevant only to evaluate or appreciate the defence version to find out whether the accused has succeeded in making out a probable case in the present prosecution proceedings. The evidence of PW2 would show that the stop memo was issued by the accused as early as on 8.3.99 which fact is not disputed by the complainant. So the defence version is supported by a contemporary document and the fact that the accused has not taken any step immediately after the incident , i.e , during the year 1998, is not a ground to disbelieve the case of the defence. 10. It is also relevant to note that when the accused was examined as DW3, she had categorically stated that : “ DW 2 നറ അചനറ സഹ ദര പ ലയനറ മകളന ഭര വ ണ വ ദ .'' The above statement of DW3 during her examination is not CRA 1636/05 9 challenged by the complainant. So, the only conclusion that can be arrived is that the complainant has close association with DW2 who was, according to the accused, working in her hospital during the year 1998 and against whom the accused has got a grievance that he had taken the cheques from the possession of the accused. Thus on a total consideration of the evidence and materials, it can be seen that the findings of the learned Magistrate is fully justified by the evidence and the materials on record. Thus the inherent defect on the prosecution to prove the transaction and the execution and issuance of the cheque is further ,made the case of the complainant unbelievable and unacceptable in the light of the defence version which is fully supported by the materials and evidence. That being the position, I find no reason to interfere with the findings arrived on by the court below against the appellant and in favour of the accused. The observations and findings are arrived by the learned Magistrate by applying his judicial mind based upon the materials and evidence on record and no case is made out to interfere with the such finding and order of acquittal recorded by the Learned Magistrate. CRA 1636/05 10 In the result, this appeal is dismissed as the same is devoid of any merit. V.K.MOHANAN, JUDGE kvm/- CRA 1636/05 11