IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 CRL.A.No. 374 of 2005() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.832/2004 Dated 24/01/2004 CC.77/2002 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... APPELLANT(S): -------------- MRS.VALSA, W/O.GEORGE, POOZHIKALAYIL HOUSE, PUNNATHARA P.O., AYARKUNNAM, THROUGH HER POWER OF ATTORNEY HOLDER, M.C.PHILIP, MANNATTUPARAMBIL, KALLARA P.O. BY ADV. SMT.LILLY LESLIE RESPONDENT(S): --------------- 1. JAIMON ABRAHAM, KOTTAMTHALAKKUZHIYIL HOUSE, PUNNATHARA, KATTACHIRA P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV.SMT.LOWSY, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl.A.No.374 of 2005 ------------------------------- Dated this the 23rd day of November, 2011. J U D G M E N T The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the order dated 30.6.2004 in C.C.No.77 of 2002 in the court of Judicial First Class Magistrate-Ettumanoor, by which the learned Magistrate acquitted the accused, in his complaint, under Section 255 (1) of Cr.P.C. 2. The case of the complainant is that, the accused issued a cheque dated 28.5.2001 for Rs.10,000/-, in discharge of a debt due to the complainant and when the same presented for encashment, it was dishonoured due to insufficient fund in the account maintained by the accused and the accused has not repaid the amount covered by the dishonoured cheque, inspite of a statutory notice and therefore the accused has committed the offence 2 Crl.A.No.374 of 2005 punishable under Section 138 of Negotiable Instruments Act. With the above allegation, by filing a complaint the accused approached the court of Judicial First Class Magistrate-Ettumanoor, wherein cognizance was taken for the offence punishable under Section 138 of Negotiable Instruments Act and instituted C.C.No.77 of 2002. During the trial of the case, PW1 was examined for and on behalf of the complainant and produced Exts.P1 to P11 documents. Whereas from the side of the defence, Dws. 1 to 3 were examined and produced Exts.D1 to D10 documents. The trial court after having considered the entire materials and evidence has found that the dispute is of civil in nature and the accused had succeeded in rebutting the presumption, which is available under Section 139 of the Negotiable Instruments Act, by establishing the circumstances upon which he issued Ext.P2 cheque. Accordingly, the learned Magistrate has found that the accused is not guilty and consequently he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal, which 3 Crl.A.No.374 of 2005 is under challenge in this appeal. 3. I have heard Smt.Lilly Leslie, learned counsel appearing for the appellant. I have perused the judgment of the trial court carefully. 4. Learned counsel for the appellant vehemently submitted that, the accused has admitted his signature and issuance of the cheque and therefore the complainant is entitled to get presumption but the learned Magistrate found that the accused has rebutted the presumption, which finding according to the learned counsel is incorrect. The learned counsel pointed out that nobody is expected to issue Ext.P2 cheque bearing date 28.5.2001, when the period fixed by D1 sale expires on 28.5.2001. Thus according to the learned counsel, the findings of the learned Magistrate that the dispute is civil in nature, is against the facts and circumstances involved in the case. In the light of the argument advanced by the counsel for the appellant and in the light of the findings of the court below, based upon the materials and evidence referred to in the impugned 4 Crl.A.No.374 of 2005 judgment, the question to be considered is whether the appellant is succeeded in making out a prima facie case so as to interfere with the above findings of the court below and to further interfere with the order of acquittal recorded in favour of the accused. 5. It is an admitted fact that, the accused had taken rooms of the complainant on rent and one of the rooms was possessed by him as a mortgagee. It is admitted by both the sides that the building referred in Ext.P1 power of attorney deed, was mortgaged to the accused as per the mortgage deed No.972/91 of the Ettumanoor Sub Registry. It is also beyond dispute that there were frequent litigation between the parties with respect to the building occupied by the accused. At the time of the impugned order, litigations were pending as O.S.Nos.157 of 1997, 193 of 1997, 235 of 1997, R.C.P.No.7 of 1997 before the Munsiff's court, Ettumanoor, with respect to the building occupied by the accused and all these cases were settled and an agreement for sale dated 28.5.1999 was executed by the 5 Crl.A.No.374 of 2005 complainant in favour of the accused. The date of expiry of the same agreement was on 28.5.2001 and D1 is the said document. According to the accused, as no sale deed was executed within the period prescribed in the sale agreement, the accused preferred O.S.No.94 of 2001 before the Sub court, Kottayam, seeking specific performance of D1 agreement. According to the accused, he issued Ext.P2 cheque as an additional security on the demand made by the complainant, as the complainant dissatisfied with the amount of Rs.5,000/- which is already given as advance as per D1 agreement. According to the accused, the complainant failed to execute the sale deed inspite of the notice issued to him by the accused on 19.5.2001. So according to the accused, Ext.P2 cheque was given as an additional security connected with the transaction covered by D1. But the case putforwarded by the complainant during his examination as PW1 is to the effect that, Ext.P2 cheque was issued towards rent arrears due to him. The learned Magistrate has specifically found that, when PW1 6 Crl.A.No.374 of 2005 was cross examined, he was not in a position to state the period of default made by the accused in payment of rent. It was also found that the complaint was not specific about the actual rent arrears. The learned Magistrate has further observed that there is no convincing explanation from the part of the complainant in receiving a post-dated cheque for the arrears. Ext.P2 cheque itself is dated 28.5.2001. So normally no one would believe that the accused issued a post-dated cheque towards the rent or rent arrears. The learned Magistrate has further observed that the complainant has not disclosed in her complaint about the debt and what was referred in the complaint is towards the rent arrears. From the above facts and from the findings of the court below it is crystal clear that, the complainant has miserably failed to prove the transaction under which Ext.P2 cheque reached in her possession. 6. In the light of the facts and circumstances involved in the case, especially in the background that, there is frequent civil litigation between the complainant and the 7 Crl.A.No.374 of 2005 accused, it cannot be believed that the accused issued post- dated cheque towards the rent or rent arrears. It is also brought on record that the expiry date of D1 sale agreement was on 28.5.2001 and Ext.P2 cheque is also dated 28.5.2001. On the basis of the above facts, the learned Magistrate has correctly found that there is no nexus with the date of the sale agreement and Ext.P2 cheque. According to me, the above fact further probabilise the case of the accused that the cheque in question was issued, connected with D1 sale agreement and not for any other transaction between the complainant and the accused, especially when the complainant has no consistent and specific case - the circumstances under which Ext.P2 cheque reached in her possession. 7. Under the above factual scenario, which are supported by the materials and evidence on record, it can be seen that the learned Magistrate has unerringly came into a judicial conclusion to the effect that the accused has succeeded in rebutting the presumption under Section 139 8 Crl.A.No.374 of 2005 of Negotiable Instruments Act and accordingly acquitted the accused under Section 255(1) of Cr.P.C. The reasoning given by the learned Magistrate cannot be said as erroneous or illegal and the same are also not liable to be interfered with as perverse. Hence, even if the appeal is heard in detail, the grounds raised by the appellant under the above facts and circumstances and evidence, deserve no consideration and the same are not sufficient to interfere with the order of acquittal. Therefore, I am of the firm view that the appellant is miserably failed to make out a prima facie case so as to admit the above appeal. In the result, the appeal fails and the same is dismissed. V.K.MOHANAN, Judge ami/