IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 CRL.A.No. 100 of 2005() ---------------------------------- CC.183/2002 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... APPELLANT(S): COMPLAINANT -------------------------------------------- K.J.STEPHEN, KIZHEKKEPURATHU HOUSE, RAMAPURAM, KOODAPALAM P.O., KOTTAYAM DISTRICT. BY ADV. SRI.SUBHASH SYRIAC RESPONDENT(S): ACCUSED AND STATE ---------------------------------------------------------- 1. P.K.GEORGE, PULIVELIL HOUSE, MONIPPALLY P.O. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, RAM MOHAN PALACE COMPOUND, ERNAKULAM. R1 BY ADV. SRI.P.C.HARIDAS R2 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.100 of 2005 ---------------------------------------------------- Dated this the 5th day of August, 2011 Judgment The complainant is in appeal. The complaint filed by him against the accused alleging offence under Section 138 of the N.I.Act ended in acquittal under Section 255(1) Cr.P.C. Hence this appeal. 2. Shorn of details the case of the complainant is that the accused had borrowed from him Rs.60,000/- and to discharge that debt Ext.P1 cheque dated 20.8.2001 was issued by the accused which on presentment was bounced due to insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent. It was acknowledged by the accused, but he failed to pay the amount. Hence, the complaint was filed. 3. The complainant got himself examined as P.W.1 and Exts.P1 to P7 were marked. The accused and the Bank Manager and another witness were examined on behalf of the accused as D.Ws.1 to 3 and Exts.D1 to D11 were marked. 4. The learned Magistrate after analysing the entire evidence found that Ext.P1 was not issued by the accused to Crl.A.100/05 2 P.W.1 in discharge of any legally enforceable debt or liability. The case putforward by the accused is that Ext.P1 cheque was given to D.W.2 as a security for the amount which he owed to D.W.2 and it was misused by the complainant and D.W.2 and this complaint has been filed raising false contentions. Relying on the evidence adduced on the side of the defence, the learned Magistrate found that the case set up by the accused is more probable and thus he was acquitted by the learned Magistrate. 5. The learned counsel for the appellant would submit that there was no specific case for the accused that Ext.P1 was not issued to P.W.1. The evidence given by P.W.1 would show that the name of the payee, the amount payable and date were written by the accused and it was signed by the accused and so the presumption under Section 139 should have been drawn by the learned Magistrate to hold the accused guilty of the offence under Section 138 of the N.I.Act. The learned counsel further submits that the learned Magistrate should not have been swayed by the evidence given by the accused and the documents produced by him, since it was not sufficient to rebut the presumption under Section 139 of the Act. Crl.A.100/05 3 6. The learned counsel for the accused/respondent would submit that there is ample evidence to show that Ext.P1 cheque was in fact handed over by the accused to D.W.2 who is admittedly a close relative of P.W.1. The learned counsel would draw the attention of the court to Ext.D5 notice dated 10.8.2001 as per which he demanded D.W.2 to return the cheque in question. That notice was received by D.W.2 on 11.8.2001. On 14.8.2001 Ext.D2 reply was sent by D.W.2; of course denying the allegations made by the accused in Ext.D5 notice. The learned counsel would further submit that on 14.8.2001 itself the complainant who was thitherto not having a bank account, opened a bank account on that day itself for which he was introduced by D.W.2 before the Bank Officer. This, according to the learned counsel, would unravel the mystery behind the whole show. Ext.P1 bears the date 20.8.2001. This, according to the learned counsel for the accused was the date put by the complainant to suit his case. The fact that the bank account was opened on 14.8.2001 and it was presented on 20.8.2001 would itself show the falsity of the complainant's case. In this connection, it is also pointed out as per Ext.D8 the entry in the Crl.A.100/05 4 cheque return register proved through D.W.1 (the Bank Manager) would also show that it was D.W.2 who got back Ext.P1 from the bank. That also would strengthen the case of the defence that the real transaction was between the accused and D.W.2. D.W.2 was the real man behind, the complainant contends. 7. The learned counsel for the complainant would submit that when D.W.1 and D.W.2 were in the witness box, the cheque return register was not shown to them to say who actually was the signatory therein. But it is pertinent to note that there is no case for the complainant that the signature therein was of the complainant. It is true that Ext.D8 was produced at a later stage. But that did not prevent the complainant from giving further evidence after reopening the evidence to give details regarding those circumstances. The learned Magistrate, in these circumstances, chose to verify the signature seen in Ext.D8 as to whether it was of D.W.2 as contended by the defence. The learned Magistrate was convinced that the signature in Ext.D8 was similar to the signature of D.W.2 put by him in the deposition. In the absence of any other evidence, the finding so entered by the learned Magistrate has to be accepted as correct. Crl.A.100/05 5 Therefore, looking at the whole conspectus of factors, it is possible to discern the truth that Ext.P1 cheque in all probability must have been given by the accused to D.W.2 in relation to the transaction which the accused had with D.W.2. The events narrated above probablises the case advanced by the accused. It is not necessary for the accused to prove his case beyond reasonable doubt. It is sufficient that he proves his case on the preponderance of probability. He could succeed in it. It is also of mention that the learned Magistrate had the added advantage of analysing the evidence, watching the demeanour of the witnesses etc. That court came to the conclusion that the case putforward by the accused is more probable and acceptable. There is no reason to upset that finding. The order of acquittal is to be thus confirmed. In the result, the appeal is dismissed. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.100/05 6 Crl.A.100/05 7