IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 CRL.A.No. 942 of 2001() ----------------------- CC.473/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... APPELLANT(S): -------------- M. RAJENDRA RADDIAR, RAMAKRISHNA NIVAS, KIZHAKKEKARA, KOTTARAKKARA, KOLLAM DISTRICT. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. M. KANNAN, S/O MUTHUSWAMI RADDIAR, PROPRIETOR, SUBHA APPAREL,S, UDAYA BUILDING, HOSPITAL JUNCTION, KARUNAGAPPALLY. 2. STATE OF KERALA REPRESENTATED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. K.L. LAKSHMI I. BY ADV. SRI.K.HARILAL FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON TH4 SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.942 of 2001 ---------------------------------------------- Dated, 17th March, 2009. JUDGMENT Having failed in a prosecution for the offence under section 138 of he Negotiable Instruments Act, the complainant preferred this appeal against the order of acquittal passed by the trial court under section 255 (1) Cr.P.C. 2. The case of the complainant is that the accused is well known for him for the last several years and they are close friends and towards the partial discharge of the liabilities incurred by the accused, he had drawn a post dated cheque of his account in the Federal Bank Ltd., Kayamkulam for Rs.97,500/-with date 16.4.99 and handed over the same on 30.1.1999 to the complainant and when he presented the cheque for enacashment, the same was dishonoured on 21.4.99 for the reason of funds insufficient. Thereafter the complainant caused to send a statutory notice to the accused and, though he received the notice, no reply was given and no payment was made. Thus he approached the court below by preferring the complaint. When the accused appeared, the particulars were read over and explained to him and he pleaded not guilty which resulted in the further trial, during which, the CRL.A.942/2001 -:2:- complainant himself was examined a PW1 and one more witness was examined from his side. Exts.P1 to P6 documents were also marked. When the incriminating circumstances, put to the accused under section 313 Cr.P.C, he denied the same. He pleaded innocence and his further plea is that himself and the complainant were employees in the chit fund by name 'Rani Chit Fund' and the complainant illegally obtained certain cheque leaves of the chit fund and by using one of such cheque leaves, this complaint was preferred. No evidence is adduced by the defence. On the basis of the rival pleadings and materials, the court below formulated 4 points for its consideration and finally found that the allegation under section 138 of the N.I.Act against the accused is not maintainable as there is no account maintained by the accused as his own or in his name and address and therefore the complaint is not maintainable, and also held that Ext.P1 cheque was not issued for discharging a legally enforceable debt. Thus, finally the court below found that the accused was not guilty under section 138 of the N.I.Act and accordingly, he was acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard the learned counsel appearing for the appellant as well as the Ist respondent. 4. The learned counsel submitted that the complainant has CRL.A.942/2001 -:3:- adduced evidence and thereby established the essential ingredients of section 138 of the N.I.Act, but overlooking such evidence , the court below came into the conclusion that the complainant failed to substantiate the allegation so as to attract section 138 of the N.I.Act. It is also contended by the learned counsel that as the complainant has established the execution and issuance of the cheque, he is entitled to get the statutory presumption under section 139 of the Act and the accused has miserably failed to rebut the presumption. Thus according to the learned counsel, the trial court ought not have acquitted the accused. According to the learned counsel, the finding of the court below that the complainant has failed to prove the fact that the accused is the sole proprietor of Rani Chit Fund, is against the evidence adduced in the case. According to the learned counsel, the court below had given much importance and relevance regarding those aspects and such approach of the court is incorrect, especially, when the accused has not disputed the fact that he is the sole proprietor of M/s.Rani Chit Fund. It is also the case of the counsel that the trial court overlooked the evidence of PW2 who deposed that the accused is the sole proprietor of firm 'M/s.Rani Chit Fund'. It is argued by the learned counsel that there is no explanation from the side of the accused as to how Ext.P1 cheque reached in the hands of the complainant and such non-explanation itself is the guarantee CRL.A.942/2001 -:4:- of the correctness of the case of the complainant. The learned counsel, on the basis of the decision in Chandra Reddy v. Prabhakara ( 2000(2) KLJ (NOC) 23) which referred by the court below in its judgment, submitted that the dictum laid down by this Court in the above decision is squarely applicable, because, as per the evidence on record in the present case, it is proved that the cheque in question was signed and issued by the accused. Therefore, according to the learned counsel, the finding of the court below that, the cheque in question was not pertained to the account maintained by the accused, is not correct. Thus according to the learned counsel, the order passed by the court below is liable to be set aside and the accused is liable to be convicted. 5. Per contra, the learned counsel appearing for the Ist respondent/accused submitted that as correctly observed by the lower court in its judgment, the complainant has miserably failed to establish the essential ingredients of Section 138 of the N.I.Act by raising appropriate pleadings and adducing acceptable evidence in support of such pleadings. In support of the above contention the learned counsel placed reliance upon the decisions of the Apex Court reported in Wahi v. Shekhar Singh ( 2007(2) KLT 1021); S.M.S. Pharmaceuticals V. V.Neeta Bhalla (2007(3) KLT 672) (SC); Raghu Lakshminarayanan v. CRL.A.942/2001 -:5:- Fine Tubes (2007 5 SCC 103) and D.C.M. Financial Services Ltd. v. Sareen (2008(2) KLT 762 )(SC). The learned counsel submitted that the complainant has miserably failed to prove the transaction, execution and issuance of the cheque and also miserably failed to establish the debt or liability which is due from the accused to the complainant. It is further submitted that the complainant has not discharged his burden to show that the cheque in question is pertained to the account maintained by the accused. In support of the above submission, the learned counsel for the Ist respondent pointed out that though the complainant had examined PW2, the branch manager of the bank of the accused, he had deposed that Ext.P1 cheque is pertained to the account maintained by M/s Rani Chit Fund and not that of the accused. Therefore, the learned counsel strongly supporting the judgment of the trial court submitted that no interference is called for. 6. I have carefully considered the arguments advanced by both the counsel and also perused the materials and evidence on record. The trial court considered various aspects especially, the absence of proper pleading in the complaint regarding the transaction, execution of the cheque, issuance of the same and also the alleged debt or liability and all these points were found against the complainant and in favour of the Ist CRL.A.942/2001 -:6:- respondent/accused. I am not proposed to go into the correctness or otherwise of those findings as my only attempt is to find out whether the complainant has succeeded in establishing one of the essential ingredients of Section 138 of the N.I.Act that whether the cheque in question was pertained to the account maintained by the accused. It is brought out in evidence that Ext.P1 cheque is pertained to the account maintained by a firm by name M/s. Rani Chit Funds, Santharani House, Kallummoodu, Kayamkulam. PW2 who is the bank manager, Federal Bank Ltd., Kayamkulam branch, had deposed based upon Ext.P6 document that M.K.Kannan is the sole proprietor of the firm and the account is in the name of M/s. Rani Chit Funds as indicated above. It is also deposed that the name of the person who is operating the account is not mentioned anywhere in Ext.P6 ledger. The trial court also found that PW2 has failed to produce records maintained in his bank to show that the accused is the sole proprietor of the firm. The complainant has also failed to summon any document to show that the cheque in question is pertained to the account maintained by the accused. On the other hand, the available materials and evidence clearly shows that the cheque in question pertained to an account not maintained by the accused but the account maintained by M/s. Rani Chit funds. In the complaint, there is no pleading and averments with particulars regarding any transaction CRL.A.942/2001 -:7:- between the complainant and the Rani Chit Funds. If that be so, whatever PW1 has stated before the court during his examination with respect to the transaction with M/s.Rani Chit Funds has to be excluded from the evidence. It is settled or recognized legal position that no evidence shall be adduced in support of the pleadings which is not taken. Under section 138 of N.I.Act, though penal provisions are incorporated, the nature of transaction contemplated also have the character of civil nature to a certain extent. Therefore, the absence of specific pleadings will go against the complainant. Thus the trial court found that the complainant has miserably failed to take appropriate pleadings and adduce evidence in that direction. Section 138 of the N.I.Act starts with the words: “Where any cheque drawn by a person on an account maintained by him with a banker .........”. So, going by Section 138, in a prosecution for the offence under section 138, especially, in this case, it has to be pleaded and proved that the cheque in question was issued from an account maintained by a person, who issued the cheque. In the present case, it has come out in evidence that Ext.P1 cheque is not pertained to the account maintained by accused but by the account maintained by M/s. Rani Chit Funds. Therefore, the trial court has correctly found that the complainant has miserably failed to establish that CRL.A.942/2001 -:8:- there is no account maintained by the accused as his own or in his name and address. The above finding of the court below is on the basis of the materials and evidence on record and the other findings also strictly based upon the evidence on record and, as such, I confirm the finding of the court below. 7. In the decision reported in Batcu Venkateshwarlu and Ors. v. Public Prosecutor H.C. of A.P. (2009(1) Supreme 67), the Hon'ble Supreme Court has held that in 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. In the light of the above discussion and the materials, referred above, I am of the view that the finding of the trial court is absolutely correct and therefore, no interference is called for. In the result, there is no merit in the appeal and the same is dismissed accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.A.942/2001 -:9:- V.K.MOHANAN, J. CRL.A.No.942 OF 2001 Judgment Dated:17.3.2009