IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 CRL.A.No. 1748 of 2007() ------------------------ ST.86/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... APPELLANT(S): COMPLAINANT ------------------------- M.V.KUMARAN, AGED 66 YEARS, S/O.KORAN, RETIRED PEON, ERAMAM AMSOM DESOM, KANNUR DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENT(S): ACCUSED ---------------------- 1. P.SATHI MOHANAN, D/O.NARAYANAN, PULIYAMKOD HOUSE, NEAR OLAVARAMUNDIYA, OLAVARA, UDUMBANTHALA P.O., THRIKKARIPUR WAY, KASARAGD DISTRICT. 2. STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. ADV. SRI.PHILIP M.VARUGHESE FOR R1 SRI.D.K.KUNHIKANNAN FOR R1 R2 BY P.P. SMT. K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1748 of 2007 ---------------------------------------------- Dated, 13th February, 2009. JUDGMENT Having failed in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, the complainant therein approached this court by filing this appeal, as he is aggrieved by the order of the court below acquitting the accused under section 255(1) Cr.P.C. 2. The case of the complainant/appellant is that the accused owed a sum of Rs.50,000/- to the complainant and for discharging the said liability, the accused issued a cheque dated 1.2.2005 to the complainant, which when presented for encashment, the same was dishonoured for the reason of insufficient funds in the account of the accused. Consequently, according to the complainant, he caused to send a lawyer notice informing the accused regarding the dishonour of the cheque and also demanding her to pay the amount covered by the dishonoured cheque. According to the complainant, the said notice was refused and returned by the accused. Thus complaining the non payment of the amount and raising accusation against the accused under section 138 of the N.I.Act, the complainant approached the court of Judicial First Class Magistrate, Payyannur, Crl.A.1748/07 -:2:- wherein the case was taken as S.T.No.786/2005, subsequently, the case was transferred as per the order of the Chief Judicial Magistrate, Thalassery, to the Judicial First Class Magistrate, Payyannur wherein the case was taken as S.T.No.86/2005. When the accused appeared , the particulars of the allegations were read over and explained to her and she pleaded not guilty. Consequently, the complainant adduced evidence consists of the testimony of PW1, the complainant himself, and the documentary evidence such as Exts.P1 to P5. All the incriminating circumstances, which emerged during the evidence of the complainant, when put to the accused under section 313 Cr.P.C., she denied the same. The accused took a plea that she has no transaction with the complainant. One of the friends of her husband ,viz., Kunhimon came to her house during the year 1999-2000 and the said Kunhimon got acquainted with one Sivasankaran of Kandankali and on the basis of the said acquaintance, through Sivasankaran, the said Kunhimon made arrangement to get visa for the complainant's son Satheesh and one Bijukumar. It is also her case that she came to know that the above said Kunhimon has obtained Rs,45,000/- each from Satheesh and Bijukumar for arranging visa. According to her, her husband has no knowledge or involvement in the said Crl.A.1748/07 -:3:- transaction. Later, Kunhimon failed to keep up his promise and in the year 2002 the complainant along with some men came to the house of the accused and confined her husband who was about to go to Malayesia. It is the continued version of the accused that they threatened her husband that they would not allow him to go to Malayesia. To save her husband's job, she gave a blank cheque to the complainant under threat and compulsion. It is also her case that the said Sivasankaran and the complainant contacted one Yousuf Yasin, a friend of Kunhimon and executed an agreement on 14.1.2003 in which the complainant is a witness. On the basis of the said agreement, connected with Rs.90,000/- obtained by Kunhimon from Satheesh and Bijukumar, Yousuf Yasin agreed to pay Rs.91,000/-, the entire amount and cost. Out of the agreed amount, Rs. 86,000/- has been given by Sivasankaran. When the balance amount was offered, the complainant demanded an additional amount of Rs.50,000/-. The agreement executed between the parties was produced as Ext.D1 and the same got marked when PW1 was examined. Thus, according to the accused, she has not received any amount from the complainant and the present complaint is preferred by misusing the blank signed cheque which obtained from the accused under threat and compulsion. No other evidence Crl.A.1748/07 -:4:- was adduced by the accused. On the basis of the rival contentions and pleadings and based upon the materials, the trial court framed appropriate issues and finally found that the complainant has failed to prove his case regarding the debt, execution of cheque as well as the entire nature of transaction. The trial court has also held that the accused has succeeded in rebutting the presumption. Thus it is finally held that the evidence available in this case is not at all sufficient to prove that the accused had issued Ext.P1 cheque to the complainant towards the discharge of a debt or liability and therefore, no offence under section 138 of the N.I.Act will lie against the accused. Thus the accused is found not guilty and accordingly she is acquitted. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri M.Sasindran, the learned counsel appearing for the appellant and also the counsel for the Ist respondent. 4. The learned counsel for the appellant submitted that the complainant has succeeded in establishing its case supported by Ext.P1 cheque which contained the signature of the accused. Therefore, according to the learned counsel, the execution of Ext.P1 cheque is proved and hence, the presumption under section 139 of Crl.A.1748/07 -:5:- the Act is available in favour of the complainant. It is also the case of the counsel that such statutory presumption is liable to be rebutted at the instance of the accused by adducing cogent and convincing evidence. But in the present case, according to the learned counsel, the accused failed to rebut the presumption and the explanation offered by the accused is not supported by any evidence or materials. Therefore, according to the learned counsel, the order of the court below is liable to be set aside and the accused is liable to be convicted. 5. It is argued for the accused/Ist respondent that the complainant has miserably failed to establish the transaction, especially, there is no averment either in the complaint or in the demand notice with respect to the debt or liability from the accused towards the complainant. The learned counsel also pointed out that till the cross examination of PW1, there was no explanation even in the chief examination or in any other documents including in the complaint or demand notice as to how the accused is indebted to the complainant. On the other hand, according to the learned counsel, the accused has got a specific case as to how Ext.P1 cheque reached in the hands of the complainant. According to the learned counsel, by producing and marking Ext.D1 agreement in which the Crl.A.1748/07 -:6:- complainant is a witness, the accused has discharged her burden to rebut the presumption under section 139 of the N.I.Act. Therefore, according to the learned counsel, no interference of this Court is warranted with the order of acquittal passed by the court below. 6. I have carefully considered the rival contentions and also perused the documents. In paragraph 7 of the impugned judgment, the trial court observed that '' from the evidence adduced, it can be seen that there is no dispute regarding the fact that Ext.P1 cheque is one drawn on the account maintained by the accused. The signature in Ext.P1 cheque is also an admitted fact. So that presumption under Section 139 of the N.I.Act is available in favour of the complainant” . The above observation , according to me , is diametrically opposed to the dictum laid down by the Hon'ble Supreme Court in the decision reported in Krishna Janardhan Bhat v. Dattatraya Hegde (2008 (1) KLT 425 (SC). In the said decision the Apex Court 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. In the present case, as pointed out earlier, the only Crl.A.1748/07 -:7:- statement in the complaint and in Ext.P3 lawyer notice is to the effect that the accused owed to the complainant a sum of Rs.50,000/-, but no specific averments are taken in the complaint as to how that amount became due to the complainant and the other transactions which led to such debt. This Court, in the decision in Johnson Scaria v. State of Kerala (2006(4) KLT 290), has held that “admission of signature in a cheque goes a long way to prove the due execution. Possession of the 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”. On application of the dictum laid down through the above decisions, in the present case, it can be seen that the complainant has not pleaded and proved the existence of a debt or liability and the execution of the cheque and issuance of such cheque towards the discharge of such liability. Crl.A.1748/07 -:8:- When the complainant failed to prove the above prima facie case, certainly the presumption under section 139 is not available in favour of the complainant. Therefore, the finding and observation made by the court below indicated above are factually and legally incorrect. 7. As stated earlier, the specific case set up by the accused is that the cheque in question was obtained under threat and compulsion and she had denied any transaction between herself and the complainant. As stated earlier, the complainant has no case as to how the accused indebted to such a huge amount to the complainant. No details are given in the complaint and also in Ext.P3 demand notice. At the time of chief examination also, the complainant has not stated anything about the debt. Only at the time of cross examination, the complainant has stated about the visa transaction and the involvement of certain other persons. Going by the written statement filed by the accused under section 313 Cr.P.C statement, her version became more probable as the same is supported by Ext.D1 agreement and also by the admission made by PW1 when he was cross examined. In fact PW1, the complaint suppressed all these facts during his chief examination (affidavit) also from the written complaint. Thus the court below, which got the Crl.A.1748/07 -:9:- privilege to observe the demeanor of the parties, has categorically came into a conclusion that the complainant/PW1 suppressed the truth from the scrutiny of the court and also found that the case of the accused is more probable. Thus going by the impugned judgment and also on the materials on record, I am of the view that the finding arrived on by the court below is absolutely correct as the same is supported by the evidence and the falsity of the pleading raised by the complainant and the admission by the complainant who suppressed the real truth from the scrutiny of the court below are sufficient to approve the finding of the trial court and I do so. Thus, the order of acquittal passed by the court below is confirmed. 8. In the decision reported in Ghurey Lal v. State of U.P. (2008(4) KLT SN 17 (C.No.17) (SC), the Apex Court has laid down certain circumstances under which the appellate court can interfere with the order of acquittal In that decision, the Apex Court has specifically held that unless certain compelling and substantial circumstances are made out, the appellate court , while exercising its jurisdiction, shall not interfere with the order of acquittal passed by the trial court. Reiterating the above position, the Apex Court, in the decision reported in Batcu Venkateshwarlu and Ors v. Public Crl.A.1748/07 -:10:- Prosecutor H.C. of A.P. (2009(1) Supreme 67), has held that in case of acquittal, there is double presumption in favour of the accused, there must be substantial and compelling reasons for holding that the trial court was wrong. In the light of the above discussion , I find no reason, compelling or substantial in nature to interfere with the order of acquittal passed by the court below. In the result, there is no merit in the appeal and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- Crl.A.1748/07 -:11:-