IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 CRL.A.No. 2205 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.698/2004 Dated 04/11/2004 CC.419/2000 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... APPELLANT(S): COMPLAINANT ------------------------- M.RAMACHANDRA BHAT, S/O.VISHNU BHAT, AGRICULTURIST, RESIDING AT DALLKUKKU HOUSE, PAIVALIKE, BAYAR, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. KRISHNA PRASAD, AGED 40 YEARS, S/O.SHYAMA BHAT, COLLEGE ROAD, NEHRU NAGAR, KAVAKA VILLAGE, PUTTUR, D.K.DISTRICT, KARNATAKA. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.SHRIHARI FOR R1 SMT.P.VANI FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. Appeal No.2205 of 2004 -------------------------------------------- Dated this the 4th day of October, 2011 JUDGMENT The complainant in a prosecution for the offence u/s.138 of the NI Act is the appellant, as he is aggrieved by the order dated 24.08.2004 in CC. No.419/2000, of the court of Chief Judicial Magistrate, Kasargod, by which the learned Magistrate acquitted the accused u/s.255(1) of Cr.P.C. 2. The case of the appellant/complainant is that the accused issued a cheque bearing No.608211 dated 12.2.2000 for an amount of Rs.40,000/- in favour of the complainant towards the discharge of the debt arising out of loan availed by the accused from the complainant. It is the further case of the complainant that when the said cheque presented for encashment, the same was dishonoured on the ground that the account was closed. Thus, according to the complainant, the accused cheated him and thereby the accused has committed the offence punishable u/s.418 of IPC and with the above allegation, the complainant approached the court of Chief Judicial Magistrate, Kasargod by filing a complaint, upon which CC No.419/2000 was instituted on taking cognizance for the Crl. Appeal No.2205 of 2004 2 offence u/s.418 of IPC. During the pre-charge stage, the complainant was examined as PW1 and Ext.P1 to P6 were marked and Ext.D1 was also marked. Thus, on the basis of those materials, a formal charge was framed against the accused for the offence u/s.418 of IPC, but the same was denied by the accused, when it read over and explained to him. Subsequently, the complainant, who was examined as PW1, was cross examined and the accused gave evidence as DW1 and Exts.D2 and D3 were marked. The accused was questioned u/s.313 of Cr.P.C. It appears that thereafter, the complainant has moved an application that CMP.No.949/2004 with a prayer to add charge u/s.138 of the NI Act also. Thereafter, PW1 was re-called and cross examined. Thus on the basis of the available evidence and materials, the trial court has consider three points for its consideration, among which the first point is, whether the accused cheated the complainant. The second point is, whether the accused has committed the offence u/s.138 of the NI Act. The trial court after an elaborate consideration of the entire evidence and materials and the facts and circumstances involved in this case has categorically found that apart from the oral testimony of PW1 and Ext.P1, no other credible corroborating evidence is available to establish that there was a transaction Crl. Appeal No.2205 of 2004 3 between the complainant and the accused and Ext.P1 was issued as the result of the transaction. It is also held that the preponderance of evidence and probabilities need the conclusion that the claim put forwarded by the complainant has not established and accordingly, held that Ext.P1 is not the cheque issued by the accused to the complainant for the alleged money transaction between them as alleged in the complaint. Consequently, the accused is found not guilty and accordingly, he is acquitted. It is the above finding and order of acquittal, challenged in this appeal. 3. I have heard Sri.Sureshkumar Kodoth, learned counsel appearing for the appellant and Advocate Sri.P.Shrihari, counsel for the respondent. 4. The learned counsel for the appellant vehemently submitted that the evidence and materials on record are sufficient to prove that Ext.P1 cheque was issued after its due execution by the accused in favour of the complainant connected with the loan transaction between the complainant and the accused and the above evidence are overlooked by the learned Magistrate of the trial court. It is the further submission of the learned counsel that in order to arrive into the above findings against the complainant, the learned Magistrate has wrongly Crl. Appeal No.2205 of 2004 4 relied upon Ext.D3 judgment and D2 reply notice, connected with a case which was pending in the State of Karnataka, which documents are not properly proved by the accused. According to the learned counsel in the absence of legal evidence to show that the complainant in Ext.D3 judgment is the father-in law of the complainant herein and in the absence of any concrete evidence or materials to show that Ext.D2 is not a false document. It is incorrect and improper on the part of the trial court in acquitting the accused. 5. On the other hand, the counsel for the respondent submitted that the available materials on record are sufficient to hold that the accused succeeded in making out a probable case and especially, accused has rebutted the presumption even though Ext.P1 cheque contained the signature of the accused. It is also the submission of the learned counsel that, the trial court is correct in its finding that there is no clinging and corroborating evidence to prove the case of the complainant. 6. I have carefully considered the argument advanced by the counsel for the complainant as well as the respondent. I have gone through the judgment of the trial court and perused the evidence and materials on record. 7. The specific case of the complainant is that towards the Crl. Appeal No.2205 of 2004 5 discharge of the debt of Rs.40,000/-, the accused issued Ext.P1 cheque which when presented for encashment, dishonoured for the reason that account was closed and therefore, the accused is committed the offence punishable u/s.138 of the NI Act. Whereas, the specific contention set up by the accused is that there is no transaction between the complainant and the accused and the cheque in question is the one which was entrusted with one Ramaprasad, who is the brother in-law of the complainant. In the light of the rival contentions advanced on behalf of the parties and in view of the materials and evidence of the record, the question to be considered is whether the complainant has succeeded in making out a case so as to interfere with the order of acquittal recorded by the trial court in favour of the accused and whether the learned Magistrate is justified in his finding, that Ext.P1 is not the cheque issued by the accused to the complainant for the alleged money transaction between the complainant and the accused. 8. From the discussion contained in the judgment and in view of the argument advanced by the learned counsel for the complainant, it appears that the complainant has not succeeded in establishing the essential ingredients of Section 418 of IPC and therefore, it can be safely concluded that the Crl. Appeal No.2205 of 2004 6 appellant/complainant is accepted the finding and the treatment given with respect to the allegation connected with the offence u/s.418 of IPC. 9. With respect to the allegation against the accused u/s.138 of the NI Act, according to me, the complainant has miserably failed to adduce any independent evidence and thus evidence of PW1, the complainant remain as uncorroborated. In the light of the facts and circumstances involved in this case, it can be seen that, as rightly observed by the learned Magistrate, at the time of filing of the complaint and the time of adducing evidence, the complainant was fully aware of the prospective defence of the accused, since before the filing of the complaint and adducing evidence, the complainant has already received Ext.D1 notice, in which the accused has advanced his defence to the effect the cheque in question is the one which entrusted with one Ramaprasad, the brother in-law of the accused during the year 1997. But, as rightly observed by the learned Magistrate no specific pleadings and averments are taken in the complaint controverting the above contention of the accused advanced much earlier point of time and no evidence is adduced to meet any face the above contention of the accused. According to me, the failure on the part of the complainant in producing positive Crl. Appeal No.2205 of 2004 7 evidence to meet the defence advanced by the accused through Ext.D1 notice, are sufficient to hold the falsity of the case of the complainant and further sufficient to hold the correctness and the probability of the version of the accused. In the absence of any independent evidence, it cannot be said that the complainant has succeeded in establishing the transaction which he alleged in the complaint and he had succeeded in proving the execution and issuance of the cheque by the accused. 10. It is pertinent to note that as I indicated earlier, the specific plea taken by the accused in the present case is that the cheque in question is the one which entrusted with one Ramaprasad, who is none other than the brother in-law of the complainant and it is the specific case of the accused that, he never entrusted any cheque with the complainant or he had any transaction with him. The contemporary document Ext.D2 is fully supportive of the above contention of the accused. Ext.D2 is the reply notice, which allegedly issued in CC No.2878/99 which is a case disposed by a Magistrate court in Karnataka as per Ext.D3 judgment dated 27.2.2001. As rightly observed by the learned Magistrate in Ext.D2, there were reference to two cheques including that of the cheque in question in the present case. In Ext.D3 complaint, the name of the complainant is same Crl. Appeal No.2205 of 2004 8 as that of the name of the father in-law of the complainant herein. As rightly found by the learned Magistrate, though PW1, the complainant herein disputed or advanced a case to the effect that the complainant in CC No.2878/99, the Karnataka case is not the father in-law of the complainant herein, no positive evidence is adduced in spite of the fact that the complainant was aware of the defence set up by the accused on the basis of Ext.D2 and D3 particularly in view of Ext.D1 reply send by the accused. So the contemporary documents namely Ext.D2 fully supporting the version of defence and probablise the case of the defence that Ext.P1 cheque was the one which was entrusted with the brother in-law of the complainant, and not with the complainant. 11. Having regard to the facts and circumstances involved in this case, especially in the light of the materials on record and in view of the foregone discussions, I am of the firm opinion that the accused has discharged his burden in rebutting the presumption, otherwise available in favour of the complainant and therefore, the trial court is fully justified in its finding that the preponderance of evidence and probabilities warranted to the conclusion that the claim put forwarded by the complainant is not established. In the absence of any positive evidence to Crl. Appeal No.2205 of 2004 9 prove that Ext.P1 cheque was duly executed and issued by the accused in favour of the complainant connected with the transaction has claimed by him, the complainant. The trial court is fully justified and correct in its finding that there is no cogent and acceptable evidence to establish that there was a transaction between the complainant and the accused and Ext.P1 cheque is issued, connected with the said transaction. Therefore, the acquittal recorded by the learned Magistrate in favour of the accused warrant no interference and accordingly, the acquittal is approved. In the result, the appeal is devoid of any merit and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/