IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 CRL.A.No. 789 of 2001() -------------------------------- CC.77/1998 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... APPELLANT/COMPLAINANT: - -------------------------------------------- MANNUAL M. CHEMPARATHY, CHEMPARATHIYIL HOUSE, KARIKODU VILLAGE, ANNAIKANNAM KARA, THODUPUZHA TALUK. BY ADV. SRI.K.R.SACHIDANANTHAN RESPONDENTS/ACCUSED AND STATE: -------------------------------------------------------- 1. AJITH KUMAR, A.R., DEVELOPMENT OFFICER, L.I.C. OF INDIA, THODUPUZHA BRANCH. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A.SALIM FOR R2 SRI.K.R.SUNIL FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 789 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2008. J U D G M E N T This is an appeal preferred by the complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, since he is aggrieved by the order passed by the Court below under Section 255(1) of Code of Criminal Procedure in favour of the accused. 2. The case of the complainant is that on 18.9.1997 the accused borrowed a sum of Rs.90,000/- from the complainant and towards the discharge of the said debt, he issued a cheque dated 17.10.1997, which was presented for encashment on 21.10.1997, but the same was dishonoured for the reason 'insufficient funds'. Accordingly, the complainant had sent a notice to the accused, intimating the dishonour of the cheque and demanding payment of the amount, but he did not pay the amount though he received the notice and therefore approached the court by filing a complaint. After recording the sworn statement of the complainant, the court had taken the complaint on file and instituted C.C. No. 77 of 1998. When the accused Crl. Appeal No. 789 of 2001 -2- appeared, particulars of the offence were read over and explained to him and he pleaded not guilty. During the trial, the complainant was examined as PW1. From the side of the complainant Exts.P1 to P7 were marked. The incriminating circumstances brought on records during the prosecution evidence were put to the accused under Section 313 of Code of Criminal Procedure. It is the case of the accused that he had no contact or acquaintance with the complainant and no amount was borrowed from him and no cheque was executed or issued in favour of the complainant. According to accused, he had borrowed a sum of Rs.25,000/- from one Joy, who is the brother of PW1. The said Joy was having money lending business and at the time of availing the loan, the accused had issued a signed blank cheque as security to the said Joy and it is the said cheque misused in this case for the purpose of filing the complaint. On the basis of the rival contentions, proper issues were framed, and the Court below finally found that the complainant's case is false and accordingly held that accused is not guilty and the accused has been acquitted under Section 255(1) of the Code of Criminal Procedure. It is the above finding and order of the Crl. Appeal No. 789 of 2001 -3- acquittal challenged in this appeal. 3. I have heard the learned Counsel for the appellant as well as the 1st respondents/accused. 4. The learned counsel for the appellant submitted that the complainant has established his case beyond doubt and therefore the presumption under Section 139 of the Negotiable Instruments Act is available in favour of the complainant. It is also the case of the counsel for the appellant that the accused failed to rebut the presumption and therefore the order of acquittal passed by the court below is liable to be set aside. 5. On the other hand the learned counsel for the respondents/ accused submitted that, the finding arrived on by the court below is absolutely based upon the materials and evidence and by adducing cogent reasons. He also submitted that the appellant failed to establish the execution of Ext.P1 cheque. The various facts discussed by the Court below and the reason concluded by the Court are not liable to be interfered. The learned counsel placing reliance upon the decision of this court in Gopan v. Tony Varghese [2008 (1) KLT 257] submitted that unless the execution is proved, Section 138 of the Crl. Appeal No. 789 of 2001 -4- Negotiable Instruments Act will not be attracted and therefore the statutory presumption under Section 139 of the Negotiable Instruments Act is not available in favour of the complainant. 6. I have carefully considered the contentions advanced by the learned counsels of both sides and also perused the records and materials available on record. In chief examination of PW1 the complainant stated that he knows the accused for several years and he said that the acquaintance was from town. He had also stated that acquaintance was as a Development Officer of LIC. In the chief examination, he did not state any thing about the transaction and whether the cheque was executed in his presence. In the cross examination he has admitted that he is an agriculturist and he is having 1½ acres property with 450 rubber trees. Monthly net profit is Rs.4,000/- and he gets income from rubber trees only for seven months. It was also stated that he was residing along with his brother. He had also stated that his brother Joy was an LIC agent and the accused was his Development Officer. According to the complainant, the accused demanded the money from him at the PWD road in front of Jyothy Super Bazar and he asked the accused to contact him in Crl. Appeal No. 789 of 2001 -5- the house after 3-4-5 days. It is also stated that at that time he had not mentioned any condition. He had also stated that accused was not asked to bring the cheque. It is further stated that the accused came in the house of his brother namely James. Money was ready at that time. He said that it was raised out by the income from the agricultural operation and the business. It was also stated that the amount is raised by getting money by giving loan to his friend. He failed to account the name of such friends. When he was examined he said that the accused had agreed to pay 18% interest. But there is no such averment in the complaint. During cross examination it is brought on record that the complainant has not much acquaintance with the accused. So on the basis of the above evidence the trial court after an elaborate consideration and appreciation of the evidence came to the conclusion that the complainant has miserably failed to prove the execution of the cheque. 7. The trial court in its judgment found that the complainant has not that much acquaintance with the accused to part with such a substantial amount to the accused without demanding any document. On going through the observation Crl. Appeal No. 789 of 2001 -6- made by the trial court in paragraph 9, it can be seen that such observation is not unfounded. In paragraph 10, the trial court has considered the capacity and source of the complainant to part with such a huge amount. Thus based upon the evidence regarding the income of complainant and his own improvements and contradiction in his evidence, regarding his income the court held that the complainant was not having the capacity to pay Rs.90,000/- and the said case of the complainant is unbelievable. It is also found by the court below that the 18 % interest is a new case and it has not mentioned in the complaint itself. 8. The above infirmities and illegalities on the part of the complainant has to be examined in the light of the case set up by the defence. According to the accused, there was a transaction between accused and one Joy, brother of the complainant who is a money lender and the accused has borrowed a sum of Rs.25,000/- from the said Joy and towards the security of the said amount Ext.P1 cheque was given to him which was contained only his signature and in all other respect the cheque was a blank one. According to the accused, it is the above cheque misused by the complainant. It is to be taken note of the fact Crl. Appeal No. 789 of 2001 -7- that the brother of the complainant Joy was an agent of LIC and he was doing money lending business and the accused LIC Development Officer was acquainted with the said Joy. It is also the case of the accused that when he availed the loan from the said Joy, the blank cheque was given to him. It is also relevant to note that the complainant was not that much acquaintance with the accused which will be evident from his own deposition. The complainant was also not that much capacity to advance such amount to the accused that too without any document. The complainant has also failed to establish that the accused has executed and issued the cheque to him. He had stated that he does not know who fill up Ext.P1 cheque. On comparing the case of the complainant on merit with that of the defence, it can be seen that the case of the defence is more probable. It is settled position of the law that the burden of the accused or the drawer to rebut the presumption under Section 139 can be discharged by making out a probable case and same need not be examined in the same yardstick of the decree of prosecution expected to establish its case. If that be so, the finding arrived on by the court below is perfectly justified. Crl. Appeal No. 789 of 2001 -8- 9. In the decision of Hon'ble Supreme Court in Ghurey Lal v. State of U.P. [2008(4) KLT SN 17 (Case No.17) SC], the apex Court has laid down seven guidelines under which the appellate court can interfere with an order of acquittal passed by the Court below. In the present case, the appellant has miserably failed to point out the compelling and substantial reasons to interfere with the order of acquittal passed by the trial court and consequently the appeal fails. In the result there is no merit in the appeal and the same is accordingly dismissed. V.K.MOHANAN, JUDGE rhs