CRL.A/465/2008 of T.T.DEVASIA Vs C.M.MATHEW on 31 December 2012

J U D G M E N T

The complainant in a prosecution for the offence punishable under Section 138 of the NegotiableInstruments Act, 1881 (for short 'the N.I.Act') is theappellant since he is aggrieved by the judgment dated13.9.2007 in S.T.No.481 of 2006 of the court of JudicialFirst Class Magistrate-I, Kottayam, by which the learnedMagistrate acquitted the accused under Section 255(1) ofthe Cr.P.C.

2. Heard the counsels for the appellant and therespondent.

3. The case of the complainant is that the accused issued a cheque bearing No.880627 dated 15.12.2005 foran amount of `95,000/- to the complainant in discharge of adebt of the accused and when the said cheque presented for encashment, dishonoured for the reason “accountclosed”. It is the further case of the complainant that,though he had caused to sent a lawyer notice to the accusedinforming him about the dishonour of the cheque anddemanding payment of the amount covered by thedishonoured cheque, no amount was paid and therefore,according to the complainant, the accused has committedthe offence punishable under section 138 of the NI Act.During the trial of the case, the complainant himself wasexamined as PW1 and produced Exts.P1 to P7 documents.The accused has got examined as DW1 and producedExts.D1 to D7 documents. The trial court after havingconsidered the entire evidence and materials came into theconclusion that the complainant could not prove anyexceptional circumstance to receive a cheque filled by type-writing, that also without any witness for the execution andtherefore the complainant could not prove beyondreasonable doubt that the accused has executed the cheque in favour of the complainant and consequently found that the accused is not guilty under section 138 of the NI Actand thus he is acquitted under section 255(1) of Cr.P.C. Itis the above finding and order of the acquittal challenged inthis appeal.

4. I have heard Sri.Manuel Kachiramattam learned counsel for the appellant, Sri.M.P.Madhavankutty learnedcounsel for the respondent and Smt.Rema R. learned PublicProsecutor for the State and I have perused the judgment ofthe trial court and gone through the evidence and materialson record.

5. Learned counsel for the appellant submitted that the learned Magistrate solely on the ground that the chequein question filled by type-writing has held that, thecomplainant has not proved the execution of the cheque andaccording to the learned counsel, the above finding of thecourt below is absolutely illegal and incorrect. It is thefurther submission of the learned counsel that the accused

has admitted the signature in Ext.P1 cheque and thereforethe trial court ought not have held that the complainant hasnot proved the execution of the cheque. On the other hand,learned counsel for the respondent vehemently submittedthat the reasoning given by the learned Magistrate insupport of his finding are correct and supported by theevidence and materials on record, and therefore nointerference is warranted.

6. I have carefully considered the argumentsadvanced by both the counsels for the appellant and therespondent, and I have perused the evidence and materialson record.

7. In the light of the rival contentions and in thelight of the evidence and materials on record, the questionto be considered is whether the appellant has succeeded inmaking out any substantial ground so as to interfere withthe findings of the court below and the order of acquittalrecorded in favour of the accused. The only averment in the complaint regarding the transaction is that, “In discharge of debt due to the complainantaccused issued a cheque bearing No.880627 dated15.12.2005 for Rs.95,000/- (Rupees Ninety FiveThousand only) drawn on the State Bank of Travancore,Kozhuvanal Branch, complainant presented the chequefor encashment through the South Indian Bank Ltd.,Kozhuvanal Branch and cheque was dishonoured on19.12.2005 due to the reason “Account Closed” and thesame is intimated to the complainant on the same dayitself.”

Absolutely there is no averment in the complaint withrespect to the transaction between the complainant and theaccused and the nature of the transaction etc. In theabsence of any such averment, I find no fault with thefinding of the court below that the complaint is silentregarding the nature of debt. On a perusal of the proofaffidavit and the admission of the complainant during hiscross examination it can be seen that, according to thecomplainant, the accused had borrowed money from thecomplainant on execution of two promissory notes and byway of gold loan, and the amount involved in this case is theamount connected with the promissory notes. Suffice to say, no promissory note is produced in this case to provethe transaction as claimed by the complainant. Accordingto me, the non-production of the promissory note, as far asthe complainant is concerned, which is a vital document toprove the transaction, goes against the complainant.Though the counsel submitted that those promissory noteswere returned to the accused on receiving the cheques, thesaid claims are not supported by any material or evidence.

8. It is also relevant to note that Ext.P1 cheque isfilled by typing on it and the complainant has no case thathe had witnessed the execution of the cheque exceptsigning on it. The trial court refused to believe the aboveversion of the complainant. The trial court has specificallyfound that even as per the admission of the complainantduring his cross examination, it has revealed that thecomplainant has filed O.S.No.277 of 2001 before theMunsiff's court, Pala, against the accused for realising theamount under the gold loan and the said suit was

dismissed. According to the complainant, Ext.P1 cheque inthe present case was issued after the dismissal of the abovesuit. So the circumstances under which Ext.P1 chequeclaimed to have issued by the accused are not free of doubt,since no man would have prepared to issue a chequewarranting criminal liability, after getting relief from a civilcourt. It is also relevant to note that to prove the execution,there is no other independent witness, except the interestedversion of the complainant. It is in this juncture, the caseset up by the accused become relevant. According to theaccused, two signed blank cheques had been received bythe complainant from him, connected with the gold loantransaction. It is also admitted by the complainant that thecheque for an amount of `72,000/-, already issued by theaccused earlier, had been dishonoured for the reason that“account closed”. So according to the learned Magistrate,it is highly doubtful that the complainant could havereceived again a cheque having the subsequent serial number in the very same cheque book pertained to thesame account for `95,000/-. It is has also found by thelearned Magistrate that the cheque is typed and filled, isanother circumstance casting doubt regarding itsgenuineness. Thus, on a close perusal and consideration ofthe entire evidence and materials on record, it can be seenthat the complainant has no specific case in the complaintabout the circumstance or regarding the transaction, underwhich the cheque in question reached in his hand. Theadmission of the complainant further shows that Ext.P1cheque was allegedly issued by the accused after dismissalof the suit filed by the complainant against the accusedwhich claim of the complainant is quite unbelievable.Further, the execution of Ext.P1 cheque and the receipt ofthe same are not proved beyond reasonable doubt,especially when an earlier cheque for `72,000/- wasdishonoured for the reason that “account closed” andparticularly when Ext.P1 cheque belonged to the said

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account. To prove the execution of the cheque, noconvincing evidence and explanation are forthcoming fromthe part of the complainant that, why the cheque is filled upby typing it. So the learned Magistrate is perfectly justifiedin his finding that the complainant has miserably failed toprove beyond reasonable doubt that the accused hadexecuted cheque in his favour. Thus, the findings of thecourt below, according to me, are supported by theevidence and materials on record and therefore thosefindings cannot be treated as perverse or illegal so as tointerfere in an appeal, against the order of acquittal.

10. In the decision in StateofRajasthan v. Darshan Singh @ Darshan Lal (2012 (4) Supreme 72), the ApexCourt has held that, the jurisdiction of the appellate courtto interfere with the order of acquittal is very limited. Theapex court has held:

“In exceptional cases where there arecompelling circumstances and the judgment underappeal is found to be perverse, the appellate courtcan interfere with the order of acquittal. Theappellate court should bear in mind the presumption of innocence of the accused andfurther that the trial Court's acquittal bolsters thepresumption of his innocence.”

Therefore, on examination of the facts and circumstances involved in the present case, in the light of the dictum laiddown by the Honourable Apex Court, I am of the view that,the appellant has miserably failed to substantiate thechallenge against the impugned judgment of the trial court.No exceptional cases or compelling reasons are made out tointerfere with the order of acquittal recorded by the trialcourt in favour of the accused.

Therefore, I find no merit in this appeal andaccordingly, the same is dismissed.

ami/

//True copy//

Sd/-

V.K.MOHANAN, Judge

P.A. to Judge