Kerala High Court
Sree Gokulam Chit And Finance Company ... vs Suresh M.R on 14 August, 2009
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 16TH DAY OF NOVEMBER 2012/25TH KARTHIKA 1934
CRL.A.No. 1750 of 2009 (c)
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CRLP.689/2009 DATED 14-08-2009
STC.114/2008 of C.J.M.COURT, MUTTOM, THODUPUZHA
PETITIONER/COMPLAINANT:
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SREE GOKULAM CHIT AND FINANCE COMPANY (P) LTD.,
356, ARCOT ROAD, KODAMBAKKOM, CHENNAI,
REPRESENTED BY THE POWER OF ATTORNEY HOLDER
MR.A.V.SANTHOSH, S/O.VIJAYA BHANU,
ASSISTANT MANAGER (BUSINESS),
THODUPUZHA BRANCH.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.M.RAVIKRISHNAN
RESPONDENTS/ACCUSED & STATE:
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1. SURESH M.R., MANIYANKALLEL HOUSE,
KUMARAMANGALAM P.O., THODUPUZHA.
2. SHEEJA SURESH,
MANIYANKALLEL HOUSE, KUMARAMANGALAM P.O.
THODUPUZHA.
3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 & 2 -- BY PUBLIC PROSECUTOR SMT.M.MADHUBEN
BY ADV. SRI.T.J.MICHAEL
R3
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
16-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No.1750 of 2009
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Dated this the 16th day of November, 2012
JUDGMENT
The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as it is aggrieved by the order dated 06/07/2009 in S.T. Case No.114 of 2008 of the court of the Chief Judicial Magistrate, Muttom, Thodupuzha by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
2. The case of the complainant is that the first accused joined two chitties with the Todupuzha branch of the complainant company for sala Rupees Three lakhs and Rupees Two lakhs. The said chitties were prized respectively with prize amounts of `2,38,500/- and `1,50,000/-. According to the complainant, the prize amounts were paid to the first accused the subscriber by the complainant respectively on 27/09/2006 and Crl.A.No.1750/2009 : 2 : 24/04/2006. The second accused is, the wife of the first accused, as she is a guarantor of the said two chitties. According to the complainant, the accused and the guarantor executed all relevant documents Exts.P3 to P6 debt acknowledgments and guarantee agreements. According to the complainant that both chitties commenced on 23/12/2005 and terminated on 23/07/2007. It is the case of the complainant that, if the subscriber defaults the subscriptions to the chitties, the subscriber is liable to pay interest at the rate of 18% per annum for the defaulted amount to the complainant company. It is the further case of the complainant that, after repeated demands made by the complainant company to both the accused to pay the amount due to it, towards the discharge their liability due to the complainant company, the accused issued, from their joint account, Ext.P9 for `.2,23,000/-. When the said cheque presented for encashment, the same was dishonored due to insufficient fund. Accordingly, though Crl.A.No.1750/2009 : 3 : the complainant sent a formal demand notice, the same was returned unclaimed and therefore according to the complainant, in spite of the formal demand, the amount covered by the dishonoured cheque was not paid by the accused and thus the accused two in numbers committed the offence punishable under Section 138 of the N.I.Act.
3. During the trial of the case PWs.1 and 2 were examined from the side of the complainant and Exts.P1 to P15 were produced. No evidence either oral or documentary was produced from the side of the defence. The trial court after referring the entire evidence and materials and through an elaborate discussion came into a conclusion that materials available on record are not sufficient to show, that Ext.P9 was executed by the accused to discharge their liability. The complainant has not discharged its initial burden that the cheque was issued by the accused for the discharge of their liability as contended. Consequently the accused is not found guilty and they are acquitted under Section 255(1) of Crl.A.No.1750/2009 : 4 : Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal.
4. I have heard Sri.P.Vijaya Bhanu, learned counsel for the appellant. I have also gone through the judgment of the trial court.
5. The learned counsel for the appellant vehemently submitted that execution of Ext.P9 cheque stands proved and therefore the complainant is entitled to get presumption as provided under Section 139 of the N.I.Act. But the learned Magistrate without considering the above legal aspect went wrong and held that the complainant has failed to prove that Ext.P9 cheque was issued towards the discharge of the liability of the accused. Therefore, according to the learned counsel the findings of the court below is absolutely incorrect and illegal and requires interference.
6. I have carefully considered the arguments advanced by the learned counsel for the appellant and I have gone through the judgment of the trial court. Crl.A.No.1750/2009 : 5 :
7. In the light of the submission made by the learned counsel for the appellant, the question that is to be considered is whether the appellant has succeeded in making out a prima facie case in support of its challenge against the finding of the court below and further to be considered is whether the appellant has made out a case so as to interfere with the order of acquittal recorded by the trial court in favour of the accused.
8. Admittedly the chitty as claimed by the complainant commenced on 23/12/2005 and terminated on 23/07/2007. Thus, according to the complainant, after the termination of the chitty the accused on demand from the part of the complainant, came to the office of the complainant with filled up cheque that Ext.P9 and put the signature in the presence of PWs.1 and 2 and issued the cheque towards the discharge of the liability, due to the complainant, which is equivalent to the amount shown in the cheque in question. Whereas the specific defence taken by the accused is that at the time of availing the Crl.A.No.1750/2009 : 6 : prize amount, the complainant obtained blank signed cheque as security. In the 313 statement of the accused also their stand is that Ext.P9 cheque was given as security in blank form and they have admitted all the other transactions related to the chitty prize amount, etc. The learned Magistrate after considering the entire evidence and materials has found that particularly in paragraph 8 of the judgment that PW.1 has deposed that for discharge of the said liability there were repeated demands to both the accused and hence to discharge their liability they from their joint account issued Ext.P9 cheque and further observed that PW.1 categorically stated in cross examination that the accused brought filled up cheque but signed before PW.2. PW.2 has also deposed in that manner. The learned Magistrate while examining the correctness of the claim of the prosecution witnesses namely, PWs.1 and 2 has significantly noted and stated that none of the alleged written demands have been produced before the court. According to the Crl.A.No.1750/2009 : 7 : learned Magistrate, Pw.2 would also say categorically that he could not say whether any demand was made for the amount covered by Ext.P9 cheque. In this juncture, it is pertinent to note that chitty was terminated on 23/07/2007. It is also relevant to note that, though Exts.P1 to P15 documents were produced by the complainant, which is a well established chitty company, no document is produced to substantiate that before the date of Ext.P9, a formal demand was made to the accused informing them about the amount due to the complainant and for the payment of the same. In the absence of any documentary evidence to that effect, it cannot be said that the accused was aware of the due amount, if any, towards the complainant. It is only when the complainant could show that the accused was made aware of the due amount, the accused can be expected to bring a filled up cheque showing the actual due amount.
9. It is also relevant to note that the learned Magistrate has found that Exts.P7 and P8 ledger extracts Crl.A.No.1750/2009 : 8 : would not show that on 06/12/2007 the amount covered by Ext.P9 was due to the complainant. So the learned Magistrate further found that, the said fact indicate that the outstanding liability was not assessed and quantified and acknowledged by the accused and hence there is no reason for the so-called alleged several demands, for the amount covered by Ext.P9 cheque. From the above facts and documents, according to me, it is crystal clear that even during the trial of the case, the complainant has not assessed the actual outstanding liability and the accused was made aware of the due amount, if any. In such circumstance, it cannot be believed that the accused brought a filled up cheque incorporating the due amount. It was under the above backdrop of the case, the learned Magistrate proceeded to observe that the case of the accused that Ext.P9 is a blank cheque taken by the complainant at the time of disbursement of prize amount as security assumes greater importance. So going by the judgment of the trial court it can be seen that the learned Crl.A.No.1750/2009 : 9 : Magistrate refused to accept the case of the complainant by assigning several reasons on the basis of the available materials and record. Therefore it cannot be said that those findings are perverse or illegal.
10. In a recent decision of the Apex Court reported in State of Rajasthan v. Darshan Singh @ Darshan Lal (2012(4) Supreme 72), the Hon'ble Apex Court has held that, "In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of 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 his innocence."
Thus, according to me, the appellant has miserably failed to make out a prima facie case in support of his challenge against the finding of the trial court and no substantial reason is made out to interfere with the order Crl.A.No.1750/2009 : 10 : of acquittal recorded by the trial court.
Therefore, there is no merit in the appeal and accordingly the same is dismissed.
V.K.MOHANAN, JUDGE skj True copy P.A. to Judge