IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 5TH APRIL, 2010 / 15TH CHAITHRA 1932 CRL.A.No. 1878 of 2003 --------------------------- (AGAINST THE ORDER IN CRLP.528/2003 Dated 06/11/2003 CC.508/1998 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR) .................... APPELLANT(S): COMPLAINANT: ---------------------------------- MUHAMMED HANEEFA, S/O.SULAIMAN RAWTHER, MANNAIKONAM PUTHEN VEEDU, NADUMURUPPU, PATHRIIKAL, PATHANAPURAM, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL SMT.MEREENA JOSEPH RESPONDENT(S): ACCUSED AND STATE. --------------------------------------------- 1. MOHANAN, S/O.SHANMUKHAN, MANGALATHU VEEDU(CHUNDAVILA) VALACODE, PUNALUR, KOLLAM DISTRICT. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.B.JAYASURYA FOR R1 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 1878 of 2003 --------------------------------------------- Dated this the 5th day of April, 2010 J U D G M E N T This appeal is at the instance of the complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') as he is aggrieved by the order of acquittal recorded by the trial court under Section 255(1) of the Criminal Procedure Code (for short 'the Cr.P.C.'). 2. The case of the complainant is that the accused borrowed a sum of Rs.25,000/- and when the amount was demanded back, he issued Ext.P1 cheque dated 16.1.1998 and when the same was presented for encashment, dishonoured for want of sufficient fund in the account maintained by the accused. On return and receipt of the dishonoured cheque, according to the complainant, he caused to issue Ext.P4 lawyer notice and in spite of the said Crl.ANO.1878 OF 2003 :-2-: notice, no amount was paid and hence, he approached the trial court by filing a formal complaint upon which C.C.No.508 of 1998 was instituted. During the trial, the complainant was examined as PW1 and adduced Exts.P1 to P6 documents. Though no document was produced on the side of the defence, Dws.1 and 2 were examined. The accused took a plea to the effect that he had no transaction with the complainant and according to him, Ext.P1 blank cheque was issued to one Salim, who is a cattle merchant, as the accused engaged in meat business and subsequently, though the amount was paid to the said Salim, he did not return the cheque which was given as a security. In order to prove the case of the defence, DWs.1 and 2 were examined and they have deposed in terms of the defence case. On the basis of the rival pleadings and materials on record, the court below considered five Crl.ANO.1878 OF 2003 :-3-: points for its determination and finally found that the complainant failed to establish that Ext.P1 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt and hence, no offence under Section 138 of the N.I.Act is made out against the accused. Thus, the accused is accordingly acquitted. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri.B.Mohan Lal, learned counsel appearing for the appellant and Mr.B.Jayasurya, learned counsel for the first respondent. 4. Counsel for the appellant vehemently submitted that the complainant has succeeded in establishing the case against the accused by producing Ext.P1 cheque which contained the signature of the accused and the accused has not disputed the same. It is the further case of the Crl.ANO.1878 OF 2003 :-4-: learned counsel that though the defence had taken a plea that the cheque in question was not given to the complainant, but to one Salim, the said fact is not proved and the witnesses Dws.1 and 2 were not able to depose in favour of the accused and their versions are inconsistent and contradictory. 5. On the other hand, the learned counsel for the first respondent submitted that as rightly held by the trial court, the complainant has miserably failed to establish the transaction under which the the liability arose and the cheque in question was issued. It is also the case of the learned counsel for the respondents that no ground is made out by the appellant so as to interfere with the order of acquittal recorded by the trial court. 6. I have carefully considered the arguments advanced by both the counsel for the appellant as well as the first respondent. I have also perused the Crl.ANO.1878 OF 2003 :-5-: materials and evidence on record. 7. In the complaint, the only averment is to the effect that the accused for his own purpose availed of a loan of Rs.25,000/- from the complainant on condition that the same will be repaid on demand. When the complainant was examined, he had stated that he had acquaintance with the accused and the accused availed of a loan of Rs.25,000/- from him and on demand for the payment of the loan amount, the accused issued the cheque. Either in the complaint or at the time of chief examination of the complainant, no details are given regarding the said transaction. Even though no specific date regarding the availing of loan is mentioned, the complainant has miserably failed to state at least the year on which the amount was obtained from the complainant by the accused. Admittedly, Ext.P1 cheque is dated 16.1.1998. If that be so, it is Crl.ANO.1878 OF 2003 :-6-: presumable that the alleged transaction was prior to 16.1.1998. If that be so, during the year 1998 and prior to that year, Rs.25,000/- is not a small amount, which would bear a good rate of interest. If that be so, it cannot be believed for a moment that Rs.25,000/- was given without any condition for the payment of the interest or at least some other benefit. No material is produced to show the transaction. There is no averment either in the complaint or during the chief examination as to when and where the amount was availed of and when it was demanded back and from where the cheque was issued. In order to get the presumption under Section 139 of the N.I.Act, the holder of the cheque has to establish at least a prima facie case regarding the transaction under which the liability arose or the situation under which the cheque in question was issued. Crl.ANO.1878 OF 2003 :-7-: 8. This Court in the decision reported in Bhaskaran Nair v. Mohanan (2009(2) KLT 897) had held that where the transaction and handing over of cheque is totally denied by an accused, the veracity of the prosecution case, as to the transaction and execution of cheque, has to be examined in reference to the materials tendered by the prosecution. On application of the above dictum in the facts and circumstances involved in the present case, it can be seen that the complainant has miserably failed to establish the transaction and execution of the cheque. If that be so, the complainant is not entitled to get the statutory presumption as envisaged by Section 139 of the N.I.Act. 9. The question of rebutting presumption will arise only when the complainant succeeded in establishing a prima facie case. As the complainant Crl.ANO.1878 OF 2003 :-8-: has failed to make out a case in terms of his allegation, he is not entitled to get the presumption and hence, there is no burden on the accused to rebut the presumption. 10. It is pertinent to note that even though the accused is not called upon to discharge the burden on rebutting the presumption, the accused had succeeded in establishing the defence case and given a correct account as to how Ext.P1 cheque reached in the hands of the complainant. The depositions of Dws.1 and 2 probablise the case of the accused. Therefore, I find no illegality in the finding arrived on by the trial court and the order of acquittal of the accused under Section 255(1) of the Cr.P.C. 11. The appellant has no case that the trial court has not considered any piece of evidence which is available on record in favour of the complainant and overlooked any other materials and Crl.ANO.1878 OF 2003 :-9-: circumstances. The Apex Court in the decision in Batcu Venkateshwarlu and Ors. v. Public Prosecutor, High Court of A.P. [2009(1) Supreme 67] held that in the case of acquittal, there is a double presumption in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong and then only, the appellate court, while exercising the appellate jurisdiction, can interfere with the order of acquittal recorded by the trial court. In the light of the facts and circumstances referred above, the trial court, which had got the privilege to assess the demeanour of the parties, after evaluating the evidence and materials on record, came into a conclusion that the complainant has failed to establish its case. The above finding is fully supported by the materials and evidence and this Court will not be justified in interfering with the Crl.ANO.1878 OF 2003 :-10-: above finding and order of acquittal recorded by the trial court. In the result, I find no merit in the appeal and the same is dismissed. V.K.Mohanan, Judge MBS/ Crl.ANO.1878 OF 2003 :-11-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------- ----------- J U D G M E N T Crl.ANO.1878 OF 2003 :-12-: DATED: -2- 2010 Crl.ANO.1878 OF 2003 :-13-: