IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 4TH NOVEMBER, 2008 / 13TH KARTHIKA, 1930 CRL.A.No. 722 of 2001 (CC.38/169998 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM) .................... APPELLANT/COMPLAINANT: ---------------------------------- V. SUDHAKARAN, VARANIVIL HOUSE, ALAPPUZHA KARA, PANACHIKKADU VILLAGE, KOTTAYAM. BY ADV. SRI.P.RAVINDRA BABU RESPONDENTS/ACCUSED & STATE: ------------------------------------------- 1. P.K.SARASWATHI, D/O.KUTTAN KOCHERUKKAN, PUTHENPARAMBIL HOUSE, POOVATHURUTHU KARA, PANACHIKKADU VILLAGE, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 722 of 2001 --------------------------------------------- Dated this the 4th day of November, 2008 J U D G M E N T This appeal is filed at the instance of the complainant who failed in a private complaint for prosecution against the accused for the offence under Section 138 of the Negotiable Instruments Act. 2. The case of the appellant/complainant is that the accused borrowed from the complainant a total sum of Rs.98,000/- in five instalments promising him to return the amount by selling the processed rubber waste. According to the complainant, the accused defaulted payment and when demanded, she had issued a cheque for Rs.86,220/- drawn on the Kollad Service Co-operative Bank. The cheque is dated 29.9.1997. According to the complainant, when the above cheque was presented for encashment, the same was dishonoured for want of sufficient fund as evidenced by Ext.P2. Ext.P1 is the cheque. On receipt of Ext.P2 dishonour memo, the complainant had caused to send Ext.P3 lawyer notice dated 24.10.1997. Exts.P4 and P5 are evidences to show the service of notice. Ext.P5 is the reply notice. Thus, in spite of the demand for the repayment of the amount as Crl.A. NO.722 of 2001 :-2-: per Ext.P3, according to the complainant, the accused failed to pay the amount and hence, by filing the complaint, he approached the court below whereupon the sworn statement was recorded and C.C.No.38 of 1998 was instituted in the court of the Chief Judicial Magistrate, Kottayam. When the accused appeared in pursuance of the process, the particulars of the allegations in the complaint were read over and explained to her to which she pleaded not guilty which resulted in further trial during which, the complainant himself was examined as PW1 and Exts.P1 to P6 were marked. When the accused questioned under Section 313 of the Code of Criminal Procedure, she denied all the incriminating circumstances came out in evidence and it is the further case of the accused that she is an illiterate lady residing in puramboke and she had neither gone to the bank nor opened any account and she had not issued any cheque to the complainant and the cheque was not signed by her and given to the complainant. From the side of the defence, Dws.1 to 3 were examined. DW3 is the accused herself. Documentary evidences such as Exts.D1 and D2 were also marked. On the basis of the rival pleadings and contentions, three issues were framed for Crl.A. NO.722 of 2001 :-3-: consideration by the court. The first point is whether Ext.P1 cheque was issued in discharge of the liability as claimed by the complainant and the second question was whether the accused opened and maintained an account in the Kollad Service Co- operative Bank, and had issued Ext.P1 cheque. The third question is whether the accused is liable to be punished under Section 138 of the N.I.Act. Under the first two points, the finding is in favour of the accused and against the complainant and thus the trial court came into a conclusion that the accused was not guilty and accordingly, she was acquitted under Section 255(1) of the Code of Criminal Procedure. It is the above finding and order of acquittal, challenged in this appeal. 3. I have heard learned counsel for the appellant. Though notice was served on the first respondent/accused, there is no appearance for her. 4. Learned counsel for the appellant submits that by producing Ext.P1 cheque and other documents, and through the oral testimony of PW-1/the complainant himself, the complainant has established the case against the accused. Counsel pointed out that the accused/defence took a total denial of the transaction Crl.A. NO.722 of 2001 :-4-: and denied the signature in Ext.P1 cheque. The finding arrived on by the court below is absolutely incorrect and against the evidence and materials on record. Learned counsel pointed out that when DW3/the accused was examined, she was confronted with Ext.P4 acknowledgment card which contained the address of the accused and signature. But, in the cross-examination, she had stated that the name and signature is not endorsed by her though she had admitted the address shown therein. The learned counsel further pointed out that when the vakalath is shown to the witness, she had admitted her signature contained therein. On the basis of the above admission, it is submitted by counsel that there is no difference in the signature contained in Ext.P1 cheque ad therefore, the execution of Ext.P1 is established. It is also pointed out by the learned counsel that though the trial court was requested to have a comparison of the signatures contained in the vakalath as well as Ext.P1 cheque, the trial court did not make any comparison as requested for. The learned counsel further submits that the deposition of PW1 is sufficient to show the transaction entered into between the accused and the complainant, particularly the accused is none Crl.A. NO.722 of 2001 :-5-: other than the distant relative of the complainant and as such, at the request of the accused, the complainant parted with the money for the purpose of her business connected with the waste rubber. 5. The trial court, after considering the contentions advanced by the complainant as well as the defence and after appreciation of the evidence on record, found that the evidence of PW1 himself raises a suspicion about the genuineness of the alleged transaction, the circumstances in which the cheque is stated to have been drawn and the business transaction between them. It was also found that there is no proper account or any other supporting document to prove the transaction, though a substantial amount is stated to have been advanced to the accused in the course of business on four occasions. The trial court discussed the defence evidence in detail. DW1 is the Secretary of the Service Co-operative Bank and he produced the Account Opening Form which is marked as Ext.D1. Ext.D2 is the cheque issue register He had categorically stated that as per the records, there was only an initial deposit of Rs.100/- and there was no other transaction except Ext.P1. DW2 was examined to Crl.A. NO.722 of 2001 :-6-: depose that he was engaged in cleaning rubber waste and according to him, labour charges were paid by the complainant. The trial court, on scrutiny of Ext.D1, found that the complainant himself had introduced the accused for opening the account with Kollad Service Co-operative Bank and he has signed Ext.D1 and it is further written in it to the effect that one more cheque book might be issued through Sri.Sudhakaran. Ext.D2 is the extract of the cheque issue register. After perusal of Ext.D2, the trial court found that on 27.12., Sri.V.Sudhakaran (complainant) had collected cheque leaf Nos.22551 to 22560 in account No.1909 and on the same day, from account No.3802, i.e. the account to which Ext.P1 cheque pertained, cheque leaf Nos.22561 to 22570 were issued for which also the same signature of V.Sudhakaran was seen in Ext.D2. Thus, the trial court found that as per the endorsement in Ext.D1, the cheque books were to be handed over to V.Sudhakaran and the signature of the complainant seen in Ext.D2 acknowledging the receipt of the cheque leaves shows that he had collected the cheque leaves from the Kollad Service Co-operative Bank. The trial court had also considered the oral evidence of the accused when she was examined as DW3. She Crl.A. NO.722 of 2001 :-7-: is an illiterate lady living, in a puramboke land which are beyond dispute. According to her, she was persuaded by the complainant for engaging in collecting rubber wastes and cleaning it on the promise that the complainant would finance for the same and thus, the complainant got some papers signed by her and the entire transaction relates to the collection of rubber waste and payments were effected by the complainant and she had no occasion to deal with that. It is also brought out in her cross-examination that a civil case was pending and the same was decreed as ex parte. DW3 had emphatically denied the signature in the cheque and denied the execution of Ext.P1 cheque in favour of the complainant. Thus, after evaluating the materials on record and considering the defence case and also considering the case of the complainant, the trial court found against the complainant and in favour of the defence. 6. I have carefully considered the contentions of learned counsel for the appellant and also perused the records. Admittedly, the accused is an illiterate lady residing in puramboke. She had denied the execution of Ext.P1 cheque and the passing of consideration and also submits that she did not Crl.A. NO.722 of 2001 :-8-: issue Ext.P1 cheque in favour of the complainant and she denied the signature contained therein. Though PW1 was examined, no evidence was adduced to prove the transaction which was alleged to have taken place between the complainant and the accused. Though it is claimed that the accused availed of a total sum of Rs.98,000/- on five occasions, the cheque in question is only for an amount of Rs.86,220/- and there is no explanation regarding the remaining amount. Admittedly, the accused is a distant relative of the complainant. But she is not having that much financial capacity to have a joint venture with the complainant. It is true that the complainant has no case that they were conducting the business together, but the case of the complainant is that he had given loan to the accused for collecting waste rubber from the mill and also for its sales. But, except the interested version of the complainant, there is no other material. This Court in the decision reported in Johnson Scaria v. State of Kerala [2006(4) KLT 290] had held that the burden is on the complainant to prove the execution and issue of cheque which depends on the facts of each case. In the above case, this Court had further held, Crl.A. NO.722 of 2001 :-9-: ”Execution and issue of the cheque have to be proved to draw the presumption under S.139 and S.139 does not shift the burden to prove execution and issue of the cheque. Admission of signature in a cheque goes a long way to prove 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 S.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 explanation offered.” On examination of the facts and circumstances involved in the present case, in the light of the above decision, it can be seen that the complainant has miserably failed to prove the execution of Ext.P1 by the accused. In the present case, there is ample material to show that the cheque and the cheque leaf connected with the account are collected by the complainant himself from the bank when he furnished the document connected with the opening of the account in the name of the accused. It is the specific case of the accused that she had never gone to the bank for opening the account and the complainant had obtained some signed documents from the accused. From the above evidence and materials, one can come into the right conclusion that Ext.P1 cheque was with the complainant right from the time of issuance Crl.A. NO.722 of 2001 :-10-: of the same from the bank and it never reached in the hands of the accused. So the facts and circumstances involved in the case and also the materials show that the accused did not execute Ext.P1 cheque and issued in favour of the complainant and there was no passing of consideration. 7. It is also relevant to note that one of the contentions raised by counsel for the appellant to the effect that the trial court failed to compare the signatures that contained in Ext.P1 cheque and that of signatures contained in the vakalath as well as Ext.P4 postal acknowledgment card. 8. I have perused and made a comparison of the signatures contained in Ext.P1 cheque and acknowledgment card and according to me, the same are not similar and there is glaring dissimilarities in the signatures. However, during the trial itself, the specific case taken by the defence is to the effect that of total denial of execution of cheque and signature contained therein. If that be so, the burden was on the complainant, especially in the particular facts and circumstances involved in the case to prove the execution and when the accused disputes the signature, the matter ought to have been sent for expert opinion and to adduce Crl.A. NO.722 of 2001 :-11-: evidence in favour of the complainant. But, no step is seen taken in that direction. 9. In the light of the above facts and circumstances of the case, I am of the view that the complainant has failed to discharge his initial burden to establish the execution and issuance of cheque and passing of consideration and no presumption is available to him, if otherwise available under Section 139 of the N.I.Act. In the present case, the defence has succeeded in establishing her case and therefore, the finding arrived on by the court below is not liable to be interfered. Therefore, the finding of the court below that the complainant failed to establish the case beyond doubt is absolutely correct and no case is made out to interfere with such finding in exercise of the appellate jurisdiction of this Court. In the result, there is no merit in the appeal and the same dismissed. There is no order as to costs. V.K.Mohanan, Judge MBS/ Crl.A. NO.722 of 2001 :-12-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO.722 OF 2001 -------------------------------------------- J U D G M E N T DATED: 4-11-2008 Crl.A. NO.722 of 2001 :-13-: