IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 CRL.A.No. 763 of 2003() ------------------------------------ CC.998/2000 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... APPELLANT(S): COMPLAINANT ------------------------- P.JAYALAKSHMI, D/O.KANARAN, 51 YEARS, 'SAMASYA', PUTHUPPANAM AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. MR.B.KRISHNAN RESPONDENT(S): ACCUSED & STATE --------------------------- 1. V.K.VIJAYAN, 45 YEARS, 'JEEVAS', TRADER, ICE ROAD, VADAKARA AMSOM, DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. MR.ANOOP U.R. FOR R1 SMT.THUSHARA.V FOR R1 BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.763 OF 2003 ------------------------------ Dated this the 30th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed in C.C.No.998/2000 of the Judicial First Class Magistrate, Vadakara. It was a case under Section 138 of the N.I.Act. It is the case of the complainant that the accused had borrowed a sum of Rs.40,000/= and towards the discharge of the liability, had issued a cheque for Rs.40,000/=, which when presented for encashment, returned with the endorsement of insufficiency of funds. Thereafter, a statutory notice was issued, to which a false reply was sent and the payment was not made. So, action was initiated under Section 138 of the N.I.Act. 2. The case of the defence is to the effect that the husband of the complainant namely Krishnadas was working in the Department of Drugs Control and after his retirement, he persuaded the husband of the complainant to start a medical shop by entrusting the entire charge of the medical 2 CRL.A.NO.763/03 shop. Towards security, an amount of Rs.40,000/= was received from Krishnadas and to evidence the same, a cheque was given in the name of the wife of Krishnadas namely the complainant. Thereafter, Krishnadas not only did not behave properly but also misappropriated the amounts and caused loss to the accused and there was a mediation to pay back the amount which has been misappropriated after deducting the amount of Rs.40,000/=. The trial court on appreciation of the materials, found in favour of the accused and acquitted the accused. It is against that decision, the present appeal is filed. 3. The learned counsel for the appellant would contend before me that the finding of the trial court is wrong and it requires interference. At the stage of appeal, the respondent has produced one document which came into being after the disposal of the case by the criminal court. It is a judgment of the appellate court, whereby on the basis of some cause of action, a suit was filed for realisation of the amount, which was decreed by the trial court and reversed by the appellate 3 CRL.A.NO.763/03 court by dismissing the suit. So, the civil litigation has ended in favour of the accused. It is argued that it will become a conclusive judgment but, in the light of the decision of the Apex Court, it cannot be held so and therefore, appreciation of the materials available here may be of relevance for determination of the case. It is the definite case of the complainant in evidence that the accused had borrowed a sum of Rs.40,000/= in July, 2000 and had issued a cheque on 8.8.2000 towards the discharge of the liability. There is no mention about the date of borrowal in the complaint. So, the matter which requires consideration is whether the case set up by the complainant is true or the defence set by the accused is probable. At the same time, it has also to be borne in mind that Section 315 of the Cr.P.C specifically mandates that the court cannot insist for examination of the accused in a case. Similarly, it also mandates that the court is not to commend upon the absence of any evidence not adduced by the accused in a criminal case. In a Section 138 case, it is the burden of the complainant to prove that the 4 CRL.A.NO.763/03 cheque was issued towards the discharge of the liability, its execution is to be proved and mere admission of a signature in a cheque does not amount to prove the execution. Until and unless the execution is proved, the presumption under Sections118 and 139 of the N.I.Act will not come to play. It is also the settled position of law that in a Section 138 N.I.Act case when the complainant and the accused choose to let in evidence in support of their respective contentions, the court is at liberty to consider the evidence adduced by both sides to find out where the preponderance of probability lies. So, with these principles in mind, one has to approach the subject. 4. It has to be pin pointedly stated that there is a case for the complainant that the amount which she had advanced in favour of the accused was the amount she received from her daughter Muktha while leaving the service from the Chinmaya school. It is also brought out in evidence that more than Rs.40,000/= was in the credit of her account at the time of this case. But, unfortunately, no scrap of 5 CRL.A.NO.763/03 paper was produced to show the withdrawal of that amount. So, it goes against the case of the complainant. Dw1 is the witness examined on the side of the accused. He had deposed before the court that there was some dispute with respect to J.J. Medicals. He had identified Ext.D2, the accounts prepared by the complainant's husband and Ext.D4 , the compensation amount paid to the employees of the shop. It is seen that the husband of the complainant had agreed to pay the balance amount to the accused after adjusting the security amount of Rs.40,000/= which was given by Krishnadas to the accused when he took charge of the medical shop. So, there is something to show that there was some dispute with respect to the conduct of the medical shop and misappropriation of the amount. It is true that Ext.D3 is written in a piece of paper and it does not contain the signature of any person. But, so far as the case is concerned, these are all documents which can be looked into merely for the purpose of testing the probability of the case set up by the accused. It is also to be stated that civil court 6 CRL.A.NO.763/03 of competent jurisdiction had also not found in favour of the complainant in a civil litigation and I am also informed that there is no appeal preferred against the dismissal of the case by the Subordinate Judge at Vadakara in A.S.No.52/2004. It is under this circumstance, the evidence of PW1 does not inspire confidence in me. I had meticulously gone through the cross examination of PW1. Her version is that the amount which was received her from her daughter was not in the bank but materials show otherwise. So, she is not speaking the truth. Therefore, I feel that it is not proper for this Court to interfere with the appreciation of the evidence done by the trial court regarding the execution and other aspects. I do not find any merit in the appeal and therefore, the same is dismissed. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.763/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.763 OF 2003 ------------------------------ 30th day of June, 2009 JUDGMENT 8 CRL.A.NO.763/03