Kerala High Court
Sasi vs Aged on 8 May, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934
Crl.L.P..No. 58 of 2013
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AGAINST THE ORDER/JUDGMENT IN CC.203/2009 of J.M.F.C., KAYAMKULAM
DATED 08/05/2012
PETITIONER : COMPLAINANT:
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SASI, AGED 45 YEARS,
S/O.KUTTAPPAN, SREESARATH VEEDU,
KANNAMBALLIL BHAGAM MURI, KEERIKKAD VILLAGE,
FROM KANNANKARA KIZHAKKATHIL VEEDU, MALAMEL BHAGAM MURI
KEERIKKAD VILLAGE,
ALAPPUZHA DISTRICT.
BY ADV. SMT.S.L.SYLAJA
RESPONDENTS/ACCUSED : STATE :
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1.AGED
PUSHPA,
36 YEARS, W/O.RAVI, RAVI NIVAS,
MALAMEL BHAGAM MURI, KEERIKKAD VILLAGE,
RESIDING AT KIZHAKKUMPURATHU VEEDU,
KARTHIKAPPALLY P.O., KARTHIKAPPALLY VILLAGE,
ALAPPUZHA DISTRICT.
2.REPRESENTED
STATE OF KERALA,
BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.S.SHANAVAS KHAN
R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON
21-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.L.P.No.58 of 2013
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Dated this the 21st day of March, 2013
ORDER
The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks leave under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the order of the trial court by which the learned Magistrate in his complaint, acquitted the accused under Section 255(1) of the Cr.P.C.
2. The case of the complainant is that the accused, who is a lady, borrowed an amount of `2,00,000/- from the complainant on 30/09/2007 after executing a promissory note and when demanded the amount, the accused issued Ext.P1 cheque dated 21/01/2009 which, when presented for encashment, dishonoured as there was no sufficient fund in the account of the accused and the accused has not paid the cheque amount in spite of Crl.L.P.No.58/2013 : 2 : the service of statutory notice on her and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PWs.1 and 2 respectively the complainant and his wife, were examined and Exts.P1 to P6 were marked. From the side of the defence DW.1 was examined and Ext.D1 was marked. The trial court finally found that there is total lack of cogent and convincing materials to prove the prosecution case and in such circumstance, the accused cannot be said to have executed and issued Ext.P1 cheque to the complainant in discharge of the liability of `2,00,000/- and accordingly the accused is found not guilty and consequently she is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are sought to be challenged by filing an appeal for which leave of this Court is sought for.
3. I have heard Smt.S.L.Sylaja, learned counsel for the petitioner/complainant and Sri.S.Shanavas Khan, learned counsel for the first respondent and I have perused the judgment of the trial court.
Crl.L.P.No.58/2013 : 3 :
4. The learned counsel for the petitioner vehemently submitted that the evidence of the complainant consists of the depositions of PWs.1 and 2 and Exts.P1 to P6 clearly shows the transaction and liability of the accused and further proved the execution of the cheque and the trial court repelled all the contentions advanced by the defence and still then the trial court on wrong approach and appreciation of the evidence, erroneously held that the complainant has not proved the case. According to the learned counsel, to prove the transaction the evidence of PWs.1 and 2 are sufficient particularly towards the execution of the cheque. The learned Magistrate himself has found that, though the accused disputed the signature and the other writings, the same are not correct after due verification and comparison of the admitted signature and handwritings. Thus, according to the learned counsel, the finding of the court below is contrary to his own observation and to the facts and circumstances involved in the case. On the other hand, the learned counsel after taking me through Crl.L.P.No.58/2013 : 4 : the judgment of the trial court particularly through paragraphs 12 and 13 submitted that there is lacuna in the case of the complainant especially when he failed to produce the promissory note which alleged to have been executed by the accused while she received the amount. It is also the submission of the learned counsel that the court below itself has found the different ink used for putting the signature and making the entries in the cheque which show that the complainant has failed to prove the execution of the cheque. Therefore, the trial court is correct in its finding and no interference is warranted.
5. I have carefully considered the rival contentions of the learned counsel appearing for the contesting parties and I have perused the judgment of the trial court.
6. The specific case of the complainant is that the accused borrowed an amount of `2,00,000/- on 30/09/2007, after executing a promissory note and towards the discharge of the said liability Ext.P1 cheque was duly executed and issued, whereas the case of the Crl.L.P.No.58/2013 : 5 : accused is that she has no acquaintance or contact with the complainant and he is a stranger to her and no amount was availed as claimed by him. It is the further case of the defence that the cheque in question is one among those which was stolen from her house and with respect to the execution of the cheque the accused took a plea of alibi. The learned Magistrate considered the case in the above backdrops of the case of the complainant as well as the defence. As rightly submitted by the learned counsel for the petitioner, though the defence has taken several contentions and plea before the court below, the same were repelled by the learned Magistrate by assigning cogent reasons that too on the basis of the materials and evidence on record. Still then the question is whether the complainant has succeeded in proving the transaction and the liability of the accused, connected with the transaction so claimed and the further the question to be answered is whether the complainant has succeeded in proving the execution of the cheque especially when the accused has not admitted the same. Crl.L.P.No.58/2013 : 6 : According to me, the above two issues are well settled by the judgment of the Hon'ble Apex Court as well as this Court. In the decision reported in Kumar Exports Vs. Sharma Carpets [2009 (1) KLT 197 (SC)], the Hon'ble Apex Court has held the presumption will be available under Section 139 of the N.I. Act only if the execution of the cheque is proved or it is admitted.
7. This Court in the decision reported in Shaji Vs. Ignatious [2009 (2) KLT 491] has held that, "when it is alleged that Ext.P1 cheque was issued towards repayment of the amount due under a promissory note, without proving the execution of the promissory note and the consideration for that promissory note, it is not possible to uphold the case of the complainant that Ext.P1 cheque was issued towards payment of the amount covered by the promissory note. The case could have been upheld only on establishing that the amount covered by the promissory note was a legally recoverable debt." In the present case, though the complainant has claimed that the amount was released in favour of the accused on Crl.L.P.No.58/2013 : 7 : executing a promissory note and the same is not seen produced before the court. Thus, in paragraph 12 of the judgment, the trial court has found that PW.1 during his cross-examination deposed that a case was filed in Mavelikkara using the said promissory note in the year 2009, but he does not know the present stage of the said case. The learned Magistrate has further observed that PW.1 has no case that the promissory note which executed by the accused, was returned to her at the time of issuance of Ext.P1 cheque. The learned Magistrate further found that, when PW.2 the wife of PW.1 was examined, she put forwarded a totally different version with respect to the promissory note. She deposed before the court that promissory note was returned to the accused, though she could not re-collect the date of return. Dissatisfied with the above conflicting evidence of PWs.1 and 2, who is none other than the husband and wife, the learned Magistrate has found the promissory note is a material evidence as far as the prosecution evidence is concerned and it is the best evidence to Crl.L.P.No.58/2013 : 8 : establish the prosecution case that the original transaction took place on 30/09/2007. Thus the learned Magistrate concluded that the evidence of PW.2 cut at the very root of the case of the complainant. Following the decision cited supra, according to me, the above finding of the court below is fully justified and accordingly the complainant has miserably failed to prove the transaction and the liability of the accused.
8. With regard to the execution of Ext.P1 cheque, it is beneficial to refer to paragraph 13 of the judgment of the trial court. After physical verification of Ext.P1 cheque, the learned Magistrate has found that the different inks are used in putting the signature and making entries in the cheque. According to me, the above differences in the ink is very material which goes against the prosecution especially in the backdrops of the evidence of PWs.1 and 2. When PW.1 during cross- examination stated initially that the accused herself wrote the cheque and signed the same in his presence. But PW.1 retracted from his previous version and stated that Crl.L.P.No.58/2013 : 9 : the cheque was given by the younger sister of the accused. But, PW.2 during her examination stated that the cheque was written by a lady who accompanied the accused. According to me, the above two versions of PWs.1 and 2 cannot be reconciled. So, in short, towards the execution of the cheque, there is no cogent and clear evidence. Thus, on examination of the said facts in the light of the decision of the Hon'ble Apex Court in Kumar Exports Vs. Sharma Carpets [2009 (1) KLT 197 (SC)], according to me, the complainant herein had also failed to prove the execution of the cheque.
9. Thus, going by the judgment of the trial court, it can be seen that the findings of the court below are based upon the evidence and materials on record and that it cannot be said that judgment of the trial court is perverse or illegal. The improbability of the case of the defence is not sufficient to probabilise the case of the prosecution and the complainant has to prove its case, its own footing. But in the present case, the complainant has miserably failed to discharge his burden particularly to prove the Crl.L.P.No.58/2013 : 10 : transaction and the liability of the accused and the execution of the cheque.
10. In a recent decision of the Apex Court reported in Pudhu Raja & Another Vs. State represented by Inspector of Police [(2013) 1 SCC (Crl.) 430=2012 (11) SCC 196], the Hon'ble Apex Court has held that:-
"14. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence, interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
On examining the facts and circumstances involved in the case, in the light of the dictum laid down by the Hon'ble Apex Court in the decision cited supra, I am of the view that the petitioner has miserably failed to show any exceptional circumstances or to show that the judgment of the appellate court is perverse or illegal. Therefore, even Crl.L.P.No.58/2013 : 11 : if an appeal is entertained, there is little scope to interfere with the finding and order of acquittal recorded by the trial court. Therefore, the petitioner is not entitled to get the relief as sought for and accordingly declining the special leave, this petition is dismissed.
Sd/-
V.K.MOHANAN, JUDGE skj True copy P.A. to Judge