IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 CRL.A.No. 158 of 2001() ---------------------------------- CC.54/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT: COMPLAINANT ------------------- SUREH KUMAR. G., PANAYIL VEEDU, PARUKONAM, POTHENCODE P.O. THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.A.K.HARIDAS RESPONDENTS: ACCUSED & STATE ----------------------- 1. B.MADHAVAN NAIR, S/O. BALAKRISHNA PILLAI, EX. MLA., VADAKKEKOTTARAM BUILDING, SREEKANTESWARAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.NAIR AJAY KRISHNAN FOR R1 SRI.R.T.PRADEEP FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.158 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June 2008 JUDGMENT This appeal is at the instance of the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The trial court, after considering the oral and documentary evidence on record, held that the appellant/complainant had failed to prove that Exts.P1 and P2 cheques were drawn “on account maintained by the accused” and accordingly the accused was acquitted. Hence this appeal. 2. The case of the complainant before the trial court was that he had sold his Maruti car to the accused for Rs.1,08,000/-. The accused issued two cheques (Exts.P1 and P2) for Rs.88,000/- and Rs.10,000/- bearing Nos.189541 and 189542 respectively in discharge of the said debt. But when these two cheques dated February 15 and 20, 1997 were presented for encashment, they were dishonoured due to insufficiency of funds in the account of the accused. Crl.A.No.158 OF 2001 :: 2 :: 3. Though a statutory demand notice was issued by the complainant, the liability was not discharged. It was therefore, that the complainant had prosecuted respondent No.1 herein for the offence punishable under Section 138 of the Act. 4. Before the trial court the complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. There was no oral or documentary evidence on the side of the defence. 5. The defence set up by the accused, who was a former member of the Kerala Legislative Assembly and President of the Devaswom Board, was that he had had no financial or business transaction with the complainant nor had he any acquaintance with him. It was further contended that he had nothing to do with the two cheques in question which were never issued from any account maintained by him. 6. The evidence adduced by the complainant in the case has to be appreciated in the above back drop. The complainant, while he was examined as PW1, deposed that he had sold his Maruti car to the accused in the second week of October, 1996. He conceded that no agreement for sale had Crl.A.No.158 OF 2001 :: 3 :: been executed. But according to him, he had handed over the requisite forms for transfer of the vehicle after putting his signature. The sale price was fixed at Rs.1,08,000/- out of which the accused had paid Rs.10,000/- as advance. It was for the balance amount of 98,000/- that the accused had issued Exts.P1 and P2 cheques. In the course of cross examination, PW1 was asked in whose name the car stood registered now. He pretended ignorance. In the course of the argument of this case before this court, to a specific question as to whether any steps had been taken by the complainant to get possession of the car which according to him was still with the complainant, the answer was in the negative. To another query as to whether any suit had been filed for recovery of the alleged balance sale consideration, the answer was yet again in the negative. 7. I have referred to the above aspects only to highlight the fact that the complaint is totally silent about the particulars of the car like its registration number or other details. Such details were not furnished by the complainant before the court Crl.A.No.158 OF 2001 :: 4 :: when he was examined. It has to be noticed that the accused had specifically contended that he had had nothing to do with the complainant at any point of time. Further, his specific case was that Exts.P1 and P2 cheques were not issued from his account. Ext.P6 photocopy of the ledger folio of the account from which Exts.P1 and P2 cheques had been issued, clearly revealed that the said account was opened in the name of M/S Valkog Textiles. The complainant had not taken any steps to prove that the accused had anything to do with the said establishment or account; or atleast who was authorised to operate the account. No evidence was adduced to show that the accused was one of the co-operators or co-signatories of the account in question. In the nature of the defence set up by the accused, it was incumbent on the complainant to discharge the initial burden cast upon him. The mere fact that the name of the complainant was shown as the drawee in Exts.P1 and P2 cheques would not ipso facto establish that the cheques were issued to him in discharge of any legally enforceable debt or liability. Crl.A.No.158 OF 2001 :: 5 :: In this context, it may also be noticed that the accused had specifically contended that the two cheques did not bear his signature. Though the learned Magistrate had observed that the signature found in the two cheques was similar to some other signature of the accused in the court proceedings, I am not satisfied that the said conclusion made by the learned Magistrate has any significance or relevance in the peculiar facts and circumstances of this case. The provisions contained in Section 139 of the Act would not enable the complainant to contend for the position that he was entitled to get the benefit of presumption available under that section. The learned Magistrate had evaluated the entire oral and documentary evidence meticulously and found the accused not guilty. I do not find any reason to interfere with the order of acquittal. The appeal fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) jes Crl.A.No.158 OF 2001 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.158 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 26th June 2008