IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 CRL.A.No. 123 of 2006() -------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.22/2006 Dated 13/01/2006 CC.437/2003 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .......................................................... APPELLANT(S): COMPLAINANT --------------------------------------------- M.ABDUL RASHEED, S/O.MAIDEEN KANNU, T.C.63/1830, AMARIVILA VEEDU, PARAVANKUNNU, POONTHURA P.O., THIRUVANANTHAPURAM-26. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT(S)/ACCUSED/STATE: ----------------------------------------------------- 1. S.UNNIKRISHNAN, S/O.SUKUMARAN, UNNI NIVAS, KOLLAMKONAM, VILAPPILSALA P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.G.SUDHEER KARAKONAM FOR R1 SRI.C.S.HRITHIK, PUBLIC PROSECUTOR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.123 of 2006 ------------------------------- Dated this the 16th day of March, 2010. J U D G M E N T The complainant in a prosecution for the offence punishable u/s.138 of Negotiable Instruments Act is the appellant and he is aggrieved by the order of acquittal issued by the Trial Court u/s.255(1) of Cr.P.C. The grievance of the appellant is not only against the order of the acquittal but also he challenges the order of the learned Chief Judicial Magistrate, Thiruvananthapuram, issued u/s.250 of Cr.P.C. 2. The allegation of the appellant is that on 17.6.2003, the accused borrowed a sum of Rs.1,70,000/- from him and towards the discharge of the said liability, he issued a post dated cheque marked as Ext.P1 bearing the date 17.11.2003. According to the complainant, when the above cheque presented for collection, the same was dishonoured stating that `payment stopped by the drawer`. It is also the case of the complainant that there was no sufficient amount in the account maintained by the accused to honour the cheque. Thus, according to the Crl. APPEAL No.123 of 2006 2 complainant he caused to issue a lawyer notice to the accused informing him the dishonour of the cheque and demanding him to pay the amount covered by the dishonoured cheque. But the accused did not pay the amount and hence the complainant approached the trial court by filing a formal complaint based upon which C.C.No.437/03 was instituted for the offence punishable u/s.138 of Negotiable Instruments Act. 3. During the trial, the complainant himself mounted to the box and tendered the evidence as PW1 and produced Exts.P1 to P15 documents. The incriminating circumstances and evidence which emerged during the evidence of prosecution were put to the accused u/s.313 of Cr.P.C. and he denied the same. The accused denied the entire transaction claimed by the complainant. The accused is specific that there is no connection between himself and the complainant and the complainant is not known to him. The specific defence plea is to the effect that the accused and his parents jointly availed a sum of Rs.20,000/- as loan, from Dws.1 and 2 who were conducting money lending business. DW2 and the Crl. APPEAL No.123 of 2006 3 complainant/PW1 are co-brothers. DW1 is the wife of DW2. According to the defence, the said loan was availed through DW3 who is the agent of Dws.1 and 2. Towards the security of the said loan, according to the defence a sale deed was executed for 40 cents of property and handed over two signed blank cheques of the accused in addition to two blank stamp papers containing his signature. According to the accused, one among the two blank cheques, is used by the sister of DW3 and filed S.T.743/03 against the accused. Another cheque thus entrusted with Dws.1 and 2 through DW3, is mis-used by the complainant after clandestinely obtaining the same from DW1 and thus filed the present case against the accused. It is also the case of the accused that, one blank paper was converted into an agreement for sale that is marked as Ext.D1, and filed a suit in which the mother of the accused is the defendant and the sister of DW3 is the plaintiff. Thus O.S.No.1925/03 which was a suit for specific performance has been dismissed. It is also the case of the accused that, the other blank paper was fabricated and forged as a sale deed in the name of DW1 and filed Crl. APPEAL No.123 of 2006 4 O.S.1940/03. 4. From the side of the defence, Dws.1 to 4 were examined and produced Exts.D1 to D3 documents. On the basis of the materials and evidence on record and the rival pleadings of the parties, the Trial Court framed three issues for its consideration and finally found that there was no dischargeable debt owing to the complainant from the accused and there was no transaction between the accused and the complainant. It is also found that the accused has rebutted the presumptions u/s.139 of Negotiable Instruments Act. Thus it is found that the accused is entitled to get an acquittal as he is not guilty of the offence punishable u/s.138 of Negotiable Instruments Act. Challenging the above order of acquittal, the appellant herein initially approached this court by filing Crl.L.P.No.22/06 seeking leave of this court and the said petition was allowed by an order dated 13.1.2006 of this court. Thus the appellant preferred this appeal challenging the order of acquittal recorded by the Trial Court u/s.255(1) of Cr.P.C. 5. I have heard Adv.Shri.P.Vijaya Bhanu, the learned Crl. APPEAL No.123 of 2006 5 counsel appearing for the appellant and Adv.Shri.R.Sudheesh for the respondent/accused. 6. The learned counsel for the appellant submitted that, the finding arrived on by the court below is absolutely illegal and perverse and liable to be set aside. According to the learned counsel, the Trial Court erroneously came into a conclusion that the accused had rebutted the presumption available to the complainant u/s.118 and s.139 of the Negotiable Instruments Act. According to the learned counsel, the Trial Court committed mistake in appreciating the evidence on record and heavily relied upon the evidence and materials produced by the defence and miserably failed to find out whether the complainant has succeeded in establishing the case against the accused. The learned Magistrate heavily relied upon Ext.D2 order and adopted the discussion contained therein to hold against the complainant and such approach is against the provisions of Sections 40 to 43 of Evidence Act. Thus the learned Magistrate on an erroneous consideration found that the defence had rebutted the presumptions. it is also the Crl. APPEAL No.123 of 2006 6 submission of the learned counsel that, the action initiated by the learned Magistrate u/s.250 of Cr.P.C. is absolutely unwarranted in the light of the facts and circumstances involved in the present case. 7. On the other hand, the counsel for the respondent/ accused submitted that by producing cogent and acceptable materials and evidence, the defence had succeeded in establishing a probable case by which the defence had discharged its initial burden of rebutting the presumptions. According to the learned counsel, the Trial court has rightly accepted the materials and evidence adduced by the defence and found that the defence had successfully rebutted the presumptions which otherwise available in favour of the complainant. Thus according to the counsel, no interference is warranted. 8. I have carefully considered the contentions and arguments advanced by both the counsels for the appellant as well as the respondents and also perused the materials and evidence on record. Crl. APPEAL No.123 of 2006 7 9. The specific plea of the prosecution is to the effect that, the accused borrowed a sum of Rs.1,70,000/- on 17.6.2003 and towards the discharge of the said liability, the accused issued a post dated cheque namely Ext.P1 bearing date 17.11.2003, on the date of receipt of the amount. According to the complainant it is the above cheque, when presented for encashment, returned as dishonoured for the reason `stop payment`. Whereas, the specific defence set up by the accused is to the effect that Ext.P1 cheque is not executed and issued by the accused to the complainant and absolutely there was no transaction between himself and the complainant and no loan availed from the complainant. According to the defence, Ext.P1 cheque is one among the two cheques issued by the accused and his parents when they availed a loan of Rs.20,000/- from Dws.1 and 2, as a security, among other documents furnished as securities. According to the defence, the complainant PW1 is the co-brother of DW2. Thus it is the cheque, which entrusted with DWs.1 and 2 through the agent of Dws.1 and 2, clandestinely reached in the hands of PW1 and mis-used the Crl. APPEAL No.123 of 2006 8 same for filing the present complaint. So the accused denied the entire transaction, execution of the cheque and issuance of the same to the complainant. The learned Chief Judicial Magistrate, after appreciating the evidence on record and after an elaborate consideration of the case put forward by the complainant as well as the accused came into a conclusion that the defence had discharged its duty in rebutting the statutory presumption as envisaged by the provisions of Negotiable Instruments Act. 10. This court in the decision reported in 2009(2) KLT 897 [Bhaskaran Nair Vs. Mohanan] has held that, when the transaction and the execution and handing over of the cheque are totally denied by an accused, the veracity of the prosecution case with respect to the transaction, the execution and issuance of the cheque, has to be examined in reference to the materials and evidence involved in the case. In the present case, the complainant himself gave evidence through his deposition. I have gone through the affidavit filed in lieu of the Crl. APPEAL No.123 of 2006 9 chief examination and also cross examination of PW1. According to PW1, the accused contacted him and demanded loan and on 17.6.2003, the accused received the amount and issued the cheque. The complainant is specific that the accused called him in the previous night and demanded the money. It was in the evening of 16.6.2003 the accused demanded the money. It is also added that the accused met him during the noon of 16.6.2003. It is in his further deposition that the accused was aware that the complainant was having money with him. According to the complainant he was in possession of Rs.2 lakh and out of that amount Rs.1,70,000/- was demanded and accordingly he gave the same to the accused. The complainant is more specific that he did not ask the accused to bring with him a type written cheque. According to the complainant, the accused himself voluntarily brought the type written cheque. The above version of PW1 can not be swallowed without a pinch of salt. On an appreciation of the above version it can be seen that, the accused approached the complainant and on seeing him, who is in possession of Rs.2 Crl. APPEAL No.123 of 2006 10 lakh, the accused demanded Rs.1,70,000/- for which he brought a type written cheque for Rs.1,70,000/-. The above version is quite unbelievable. The version of PW1 has to be examined and appreciated in the background of the specific plea taken by the accused. 11. DW3 is the person, according to the accused through whom they have availed of a loan of Rs.20,000/- from Dws.1 and 2 and at the time of that transaction among other papers towards security, two signed blank cheques were also issued and out of the above two cheques one cheque leaf reached in the hands of PW1, through DW2 who is the co-brother of PW1. But when PW1 was cross examined, he denied any acquaintance with DW3. He deposed before the court that, he had no knowledge about DW3 for years together. But as rightly pointed out by the counsel for the respondent that, Ext.P15 the original of the sale deed, that executed between the parents of the accused and Dws.1 and 2, is produced by the complainant and in Ext.P15, DW3 is one of the witnesses for the transaction. It is also relevant to note that, Ext.D1 agreement for sale which Crl. APPEAL No.123 of 2006 11 is a document allegedly executed by the mother of the accused and sister of DW3 in which the co-brother of PW1 namely, DW2 is a witness. Thus on examination of the version given by PW1, regarding the execution and issuance of the cheque especially the passing of consideration, in the particular background of the defence plea, I am of the view it is unsafe to rely on the evidence of the complainant in order to find guilt against the accused. 12. After examination of the entire materials and evidence on record, the trial court found that the accused had succeeded in discharging his burden and rebutting the presumption. Though it was argued elaborately for and on behalf of the appellant, nothing brought on record to show that the Trial Court failed to consider any materials and evidence on record so as to warrant the interference of this Court in appeal. Honourable Apex court has repeatedly held in the decision reported in 2009 (1) Supreme 67 [Batcu Venkateshwarlu & ors. Vs. P P High Court of A P] and in 2009(1) Supreme 355 [Arun Vs. State by Crl. APPEAL No.123 of 2006 12 Inspector of Police, Tamil Nadu], that by an order of acquittal there are double presumptions of innocence in favour of the accused and such an order of acquittal shall not be disturbed unless there is substantial and compelling reasons to reverse the same. In the present case, I find no compelling and substantial reason to interfere with the order of the acquittal recorded by the Trial Court. Therefore, I have to approve the order of acquittal recorded by the trial court. 13. The learned counsel for the appellant vehemently submitted that, the order of the trial court initiating proceedings u/s.250 of Cr.P.C. against the appellant/complainant is absolutely unwarranted especially in the factual background involved in the case. In the impugned judgment after recording the acquittal, the Trial Court has observed that, `the evidence shows the unholy nexus perpetrated by Dws.1 and 2 in filing a false complaint against the accused by misusing the provisions of S.138 of the N.I.Act'. In the light of the above observation and the finding entered thereto I can not find fault with the steps Crl. APPEAL No.123 of 2006 13 taken by the Trial Court u/s.250 of Cr.P.C. I have no hesitation to observe that whatever defence the complainant has got, can be raised during the enquiry u/s.250 of Cr.P.C. Therefore, the Trial Court is directed to conclude the enquiry u/s.250 of Cr.P.C. untrammeled by any of the observations or findings contained in this judgment. Accordingly, this appeal is dismissed subject to the above observations. V.K.MOHANAN, Judge. ami/