IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 Crl.L.P..No. 996 of 2011() -------------------------- ST.96/2010 of J.M.F.C.-II, VADAKARA .................... PETITIONER/COMPLALINANT ------------------------------------------- BHASKARAN, AGED 65 YEARS, S/O.KANARAN, KIZHAKKE PUTHIYOTTIL (H), ONCHIYAM AMSOM DESOM, VATAKARA TALUK. BY ADV. SRI.MOHANAN V.T.K. RESPONDENTS: ACCUSED & STATE ---------------------- 1. K.RAMLA, AGED 50 YEARS, RAMLA HOUSE, MARUNNE ARAKKAL PARAMBATH (H), AZHIYUR (PO), VATAKARA TALUK- 673 101 2. STATE OF KERALA, RPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. LOWSY A. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.LP. No. 996 of 2011 ---------------------------------------- Dated the 16th day of November, 2011 ORDER The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein who seeks special leave under section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.') to file an appeal against the order of the trial court by which the learned Magistrate, in his complaint, acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the complainant is that the accused who is a lady borrowed a sum of Rs.2,50,000/- from the complainant on 23.9.2009 promising to repay the same within two months and when the amount was demanded back, the accused issued Ext.P1 cheque dated 28.11.2009 for an amount of Rs.2,50,000/- which when presented for encashment, dishoured for want of sufficient fund in the account of the accused and the accused has not repaid the dishonoured cheque amount in spite of a statutory notice caused to send by the complainant. Thus according to the complainant, the accused has committed the Crl.L.P.996/11 -2- offence punishable under section 138 of the Negotiable Instruments Act. With the above allegation, by filing a complaint, the complainant initially approached the court of Judicial First Class Magistrate I, Vatakara wherein cognizance was taken and instituted C.C.No.224/2010. Subsequently the case was made over to the present trial court , i.e. Judicial First Class Magistrate Court-II, Vatakara wherein the case is renumbered as S.T.No.96/2010. During the trial, Pws 1 and 2 were examined from the side of the complainant and produced Exts.P1 to P7(a) documents. From the side of the defence, no evidence, either oral or documentary, was produced . After considering the entire evidence and materials on record, the learned Magistrate of the trial court has found that, considering the natural course of human conduct, it is unbelievable that a huge amount such as Rs.2,50,000/- would be lent for a period of 2 months without getting any documents , that too, to a person who admittedly has a debt and this made the case of the complainant doubtful, and thus it is further found that the case of the complainant regarding the execution of Ext.P1 cheque by the accused is doubtful and the complainant has not succeeded in satisfactorily Crl.L.P.996/11 -3- proving the same. The trial court has further found that the accused has succeeded in raising a probable defence. Thus the accused is found not guilty for the offence under section 138 of the NI Act and accordingly he is acquitted under section 255 (1) Cr.P.C. It is the above finding and the consequent order of acquittal sought to be challenged by filing appeal for which leave of this Court is sought for under section 378(4) Cr.P.C. 3. I have heard Sri Mohanan V.T.K., the counsel appearing for the appellant and I have perused the judgment of the trial court. 4. The learned counsel vehemently submitted that through the evidence of PWs 1 and 2, the complainant has established the transaction between the complainant and the accused as raised by him in the complaint and has proved the execution and issuance of the cheque. Thus, according to the learned counsel, the complainant is entitled to get presumption under section 139 of the NI Act. It is the further submission of the learned counsel that, though the defence had raised a contra version, that she had borrowed the amount from the wife of the complainant, the accused has not mounted to the box and no Crl.L.P.996/11 -4- evidence is adduced to substantiate such case. According to the learned counsel, the learned Magistrate on totally irrelevant grounds, refused to accept the case of the complainant. It is the specific case of the counsel that the complainant has produced Ext.P1 cheque which bearing signature of the accused and pertained to the account of the accused from the possession of the complainant and therefore, according to the learned counsel, in the light of the decision of this court in Johnson Scaria v. State of Kerala (2006 (4) KLT 290), the findings of the court below is factually illegal and unsustainable. On the strength of the decision in Gopan v. Tonny Varghese (2008 (1) KLT 257), the counsel submitted that , on a consideration of the entire facts and circumstances involved in this case, the learned Magistrate ought to have held that the complainant has succeeded in establishing the case against the accused and therefore, the order of acquittal recorded by the trial court is not correct and liable to be interfered with. Thus according to the learned counsel, the petitioner has a very good case for which, leave has to be granted for filing an appeal against the above judgment of the court below. Crl.L.P.996/11 -5- 5. I have carefully considered the arguments advanced by the counsel for the petitioner. I have gone through the judgment of the trial court and the materials and evidence referred to therein and the authorities cited by the learned counsel for the petitioner. 6. In the light of the arguments advanced by the counsel for the petitioner and in the light of the materials referred to in the judgment which sought to be challenged, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave under section 378(4) Cr.P.C to file an appeal against the judgment dated 19.9.2011 in S.T.No.96/2010 of the court below. The specific case raised by the complainant is to the effect that the accused, who is a lady, obtained a loan of Rs.2,50,000/- from the complainant on 23.9.2009 for a period of 2 months and when the complainant demanded back the amount, she issued Ext.P1 cheque dated 28.11.2009 for the said amount. Whereas the case of the accused is to the effect that she had no contact or any transaction with the complainant and according to her, she had borrowed an amount of Rs. One lakh from the wife of the Crl.L.P.996/11 -6- complainant agreeing to pay interest at the rate of Rs.10,000/- per month and according to her, at the time of borrowing the said amount, the wife of the complainant obtained 3 signed blank cheques and one stamp paper as security and even after the repayment of the said amount, the documents were not returned. According to the defence, the wife of the complainant informed her that the documents were with the complainant and it is one of such documents, misused by the complainant for filing the present complainant. In paragraph 15 of the judgment, it can be seen that, the learned Magistrate has specifically found that PW1 admits that he has no direct acquaintance with the accused and only acquaintance with the accused is through his own wife. According to him, money was given to the accused out of the said relationship. From the above admission of PW1, it appears that his acquaintance with the accused is not so deep so as to give such a huge amount to the accused, who is a lady , without any security. The learned Magistrate, who got privilege to assess the demeanor of the parties, has observed that even according to the complainant, the accused informed him that the money is needed for discharging her debt which Crl.L.P.996/11 -7- was occurred for the construction of her house. Therefore according to the learned Magistrate, considering the natural course of human conduct, it is unbelievable that a huge amount such as Rs.2,50,000/- would be lent for a period of 2 months without getting any documents that too, to a person who admittedly is a debtor. The above finding of the learned Magistrate is based upon the appreciation of the evidence and materials on record and after considering the natural human conduct in the proved facts and circumstances. 7. It is relevant to note that to prove the allegations and claim, except the interested version of PW1, there is no independent evidence. The transaction , execution and issuance of the cheque are not proved properly. The trial court has specifically found that in paragraph 13 of its judgment that, on a perusal of Ext.P1 cheque, it is seen that the hand writing and ink in the signature portion and other entries in the cheque are entirely different and according to the learned Magistrate, the same makes the case of the complainant doubtful. The learned Magistrate has further considered the same in paragraph 14 of its judgment. The complainant has miserably failed to convince Crl.L.P.996/11 -8- the learned Magistrate by assigning any proper explanation as to why this different writings are seen in Ext.P1 cheque, if the case of the complainant is true and correct. According to me, the above fact itself shows the innocence of the accused and the same is not inconsistent with the case put forth by the defence. According to the accused, who is a lady, when she borrowed an amount of Rs.1 lakh from the wife of the complainant, she had handed over certain blank and signed documents including cheque leaves and, Ext.P1 cheque is one among such documents. According to the accused, she issued blank signed cheque in favour of the wife of the complainant. The absence of any convincing explanation, from the part of the complainant with respect to the handwritings that contained in Ext.P1, positively probablise the case of the accused that Ext.P1 was one of the documents entrusted with the wife of the complainant connected with the transaction between the accused and the wife of the complainant. It goes without saying that, the facts and circumstances involved in the two decisions referred to by the counsel for the petitioner, i.e., Johnson Scaria v. State of Kerala (2006 (4) KLT 290) and Crl.L.P.996/11 -9- (Gopan v. Tonny Varghese (2008 (1) KLT 257) are entirely different from the facts and circumstances involved in the present case. In the present case, the accused has assigned a probable and convincing reason as to how Ext.P1 cheque, which belongs to the accused and bearing her signature reached in the possession of the complainant. If the accused executed and issued the cheque in favour of the complainant, there need not be entries in different handwriting. In Johnson Scaria's case, (2006 (4) KLT 290) (cited supra), this court has held that, “the burden rests on the complainant to prove the 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”. According to me, in the present case, the complainant has miserably failed to prove the execution and issue of the cheque and also the transaction claimed by him, whereas the accused had successfully explained the circumstances under which her cheque reached in the hands of the complainant. Crl.L.P.996/11 -10- 8. In the light of the above facts and circumstances and the above discussion, according to me, the learned Magistrate is fully correct and justified in his finding that the case of the complainant regarding the execution and issuance of Ext.P1 cheque by the accused is doubtful and the complainant has not succeeded in satisfactorily proving the same and the accused has succeeded in raising a probable defence. If that be so, even if an appeal is entertained, there is no scope for any interference with the findings of the court below and as such this petition is devoid of any merit. In the result, this petition is dismissed as devoid of any merit declining leave as prayed for under section 378(4) Cr.P.C. V.K.MOHANAN, JUDGE kvm/- Crl.L.P.996/11 -11-