IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Crl.L.P..No. 113 of 2009() -------------------------- CC.302/2008 of J.M.F.C.-II(ADDL.MUNSIFF), , KASARAGOD .................... PETITIONER ------------------------------ M.ABDULLA, AGED 53 YEARS S/O.MAMMUNHI, PROPRIETOR, SUHANA WOOD WORKS MANNAMKUZHI, P.O.UPPALA, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENT(S): --------------- 1. M.P.MOHAMMED S/O. PALLIKUNHI HAJI, SUNNISIDE, MANNAM KUZHI P.O.UPPALA, KASARAGOD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY P.P. SRI C.M.KAMMAPPU. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.L.P. No.113 OF 2009 ---------------------------------------------- Dated, 3rd February, 2009. ORDER Having failed in a prosecution for the offence under section 138 of the Negotiable Instruments Act, and aggrieved by the order of the court below acquitting the accused, the petitioner who is the complainant seeks special of this Court to prefer appeal against the above order of acquittal. 2. The case of the petitioner/complainant is that the accused borrowed a sum of 3,40,000/- from the complainant and towards the discharge of the said debt, the accused issued a cheque for Rs.3,40,000/- and when the cheque was presented for encashment, the same was dishonoured for the reason `funds insufficient'. Thereafter, after due compliance of the statutory formalities, the petitioner approached the court below by filing the complaint. On appearance of the accused, he denied the transaction which resulted in the further trial during which the complainant himself was examined as PW1 and produced Exts.P1 to P5 documents. The specific case of the defence taken is to the effect that during the relevant period, the accused and the complainant were not in good terms and there was a dispute with respect to the administration of a Masjid and both the CRL.L.P.113/09 -:2:- complainant and accused were on opposite sides. According to the defence, prior to 2006, the complainant was the Secretary of Mannankuzhi Juma Masjid and the accused was Vice President of the same and towards administration of the Masjid, the accused had paid amount to the complainant in cash as well as by way of blank cheques and one of such cheques retained by the complainant is now misused for the purpose of the filing of the complaint, when he failed in the civil suit filed against the accused and other rivalries. The trial court, the court which had occasion to observe the demeanor of the parties, based upon the evidence on record came to the conclusion that it cannot be held that Ext.P1 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt, and accordingly, the court found that the accused is not guilty and thus acquitted him. It is the above finding and order of acquittal sought to be challenged for which the petitioner/complainant seeks leave in this petition. 3. I have heard the learned counsel appearing for the petitioner and the learned Public Prosecutor and also perused the judgment of the trial court. 4. On the basis of Dxt.D1 document, the trial court found that there was a civil suit between the complainant and the accused CRL.L.P.113/09 -:3:- from 2006 and the suit was for declaration, injunction and damages, against the accused in this case and the some other persons. The suit ended in dismissal on 30.10.2007. The alleged transaction in the present case had taken place on 21.2.2008. Thus according to the trial court, the complainant and the accused were fighting each other in the civil suit for more than one year from 2006 to 2007. Thus, it is observed that in such circumstances, the possibility of the complainant to lend such a huge amount of Rs.3,40,000/- to the accused is not believable. The trial court also found that when PW.1 was examined, he was not aware of the purpose of the accused for borrowing the money. So the trial court observed that if there is so much good relationship between the complainant and the accused, normally, the complainant could have well aware of the purpose for which the accused borrowed the amount. 5. Another important legally relevant factor considered by the court below is that when the complainant was examined, he said that he was maintaining business account and the amount given to the accused can be seen in such account. But the complainant has not produced those account nor any document to show the transaction between the complainant and the accused. So the trial court found that in the light of Ext.D1 document, the complainant is bound to CRL.L.P.113/09 -:4:- prove strictly the execution of the cheque by the accused in favour of the complainant. On the strength of the decision of the Apex Court reported in Kundan Lal v. Custodian Evacuee Property (AIR 1961 SC 1316), as the complainant withheld the relevant evidence, the presumption can be drawn against the complainant. As the complainant had not produced the available evidence to prove the alleged transaction, and the fact that serious fight was going on between the complainant and accused in a court of law not much earlier than the filing of the present case, it is difficult to believe that the complainant lent such a huge amount to the accused and the accused issued Ext.P1 cheque in favour of the complainant. The above finding, in the particular facts and circumstances involved in the case, appears to be correct and such findings were arrived on the basis of the materials on record. 6. In the decision reported in Johnson Scaria v. State of Kerala (2006 (4) KLT 290), this Court had held that execution and issue of the cheque have to be proved to draw the presumption under S.139 and S.138 does not shift the burden to prove execution and issue of the cheque. In the above decision, it is further held : “Admission of signature in a cheque goes a long way to prove the execution. Possession of the CRL.L.P.113/09 -:5:- cheque by the complainant similarly goes a long way to prove issue of the cheque. The burden rests on the complainant to prove execution and issue.; But under Section 114 of the Evidence Act appropriate inferences and presumptions can be drawn in each case on the question of execution and issue of the cheque depending on the evidence available and explanations offered”. In the present case, the finding arrived by the court below is fully justified as the decision is squarely applicable in the facts and circumstances involved in the present case. By producing Ext.D1, the accused has substantiated one of his points to the effect that there was no possibility for execution of the cheque and issuance of the same in favour of the complainant based upon the alleged debt since during that period, the accused and the complainant were involved in serious dispute regarding the administration of the Masjid. It is also the case and explanation offered by the accused that the cheque in question was one of the cheques issued by the accused to the complainant when there was cordial relationship between them as the complainant was the Secretary and the accused was the Vice President of the Masjid. The above defence version assumes relevance which has to be considered while appreciating the evidence of the complainant. The trial court has already observed that the CRL.L.P.113/09 -:6:- complainant has no idea for what purpose the accused has availed the loan and therefore, the claim of the complainant that the amount was given to the accused upon their alleged friendship cannot be believed. In this juncture, it is also relevant to note that when the statutory notice sent by the complainant, the accused issued reply denying the transaction and also set up a case that Ext.P1 is a forged one. From the above facts, one can presume that the complainant was fully aware of the defence to be faced by him during the trial. But though he had admitted during his examination that he had maintained the account regrading his business and also stated that in the said book, the endorsement regarding the amount given to the accused will find a place, but the complainant miserably failed to produce the said account or any other documents to show such transaction. Thus the trial court, on the basis of the decision of the Apex Court in Kundan Lal's case (cited supra), found that the presumption can be drawn against the complainant who withheld the relevant evidence from the scrutiny of the court. The above approach of the complainant when appreciated in the background of the defence assumes importance and it will go against the complainant. 7. The learned counsel for the petitioner submitted that an opportunity may be given to the complaint to produce such document. CRL.L.P.113/09 -:7:- The said prayer cannot be entertained . As I pointed out earlier, even at the time of the reply, the complainant was aware of the possible defence of the accused and therefore it was for him to take appropriate averments in the complaint and to adduce evidence in terms of such plea before the court. In the absence of specific plea in the complaint, it is impermissible to adduce evidence. In this particular case, though there was opportunity for producing documentary evidence, the complainant deliberately suppressed the same. Apart from the mere admission from the part of the complainant, neither the trial court nor this court is in a position to arrive into a conclusion that, actually, such a document was within his possession. If actually he was in possession, certainly he could have produced the same before the court to substantiate his contention. Therefore, there is no meaning in allowing the complainant to adduce further evidence, when he failed to make use of the earlier opportunities which were available to him. 8. In this connection, it is relevant to note that in a case for prosecution under section 138 of the N.I.Act, it is for the complainant to plead and prove the debt or financial liability as contemplated under section 138 of the N.I.Act. In the absence of such pleadings, and proof, the presumption available otherwise under section 139 of the CRL.L.P.113/09 -:8:- Act cannot be extended in favour of the complainant. The Apex Court in the decision reported in Krishna Janardhan Bhat v. Dattatraya Hegde (2008(1) KLT 425 (SC), has held that existence of legally recoverable debt is not a matter of presumption under section 139, and it does not raise a presumption in regard to existence of a debt also. The Apex court has also held that while considering the question of rebuttal in cases where the false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be considered. On application of the above dictum, laid down by the Hon.Supreme Court, in the facts and circumstances involved in the present case, I am of the view that even if an appeal is entertained, there is no scope for any interference. 9. The petitioner herein seeks leave to file an appeal against an order of acquittal. The Apex Court in the decision in Ghurey Lal v. State of U.P. (2008 (4) KLT SN 17(C.No.17)(SC), laid down certain circumstances under which the appellate court can interfere with an order of acquittal. In the said decision, it is held that appellate court can interfere only when very substantial and compelling reasons are made out. In the decision reported in Batcu Venkateshwarlu and CRL.L.P.113/09 -:9:- Ors. v. Public Prosecutor H.C of A.P. (2009(1) Supreme 67), the Apex Court has reiterated the above proposition and held that there must be very substantial and compelling reasons for holding that the trial court was wrong. The same is the position in Murugan & Anr. v. State Rep. by Public Prosecutor, Madras, T.N. & Anr.(2008 (7) Supreme 260). 10. On going by the judgment of the trial court sought to be impugned, I find that there is not even a remote possibility for interfering with the order of acquittal as there is no compelling and substantial reasons. Therefore, the petitioner miserably failed to make out a case for grant of special leave. In the result, there is no merit in the leave petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.L.P.113/09 -:10:-