C. Radhakrishna Pillai Maryadiyil Veedu, Naduvilakkara Muri Thevalakkara Village vs S. Vasudevan Pillai and Another (Thayyil Veedu), Naduvilamuri, Kunnathoor Village and State of Kerala

Justice V.K. Mohanan

The complainant in a prosecution for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I. Act'') is the appellant since he is aggrieved by the judgment dated 7.8.2007 in S.T. No. 14 of 2006 of the court of Judicial First Class Magistrate-II, Karunagappally, by which the learned Magistrate acquitted the accused u/s 255(1) of the Cr.P.C. The case of the complainant is that the accused is one of his friends and also his near relative, and on 1.9.2001, the accused approached him and borrowed a sum of Rs. 3 lakhs and at the time of borrowing the said amount, the complainant was told that the amount will be repaid on 2.11.2001. According to the complainant, on 2.11.2001, the accused approached him and informed that the amount could not be arranged and in discharge of that liability, the accused had issued a post dated cheque bearing date 20.11.2001. According to the complainant, when the above cheque presented for encashment, the same returned dishonoured for the reasons "funds insufficient" and "payment stopped by drawer". It is the further case of the complainant that, though a formal statutory notice was sent to the accused, instead of paying the amount, he sent a reply raising false contentions. Thus according to the complainant, the accused has committed the offence punishable u/s 138 of the NI Act. During the trial of the case, Pws. 1 and 2 were examined from the side of the complainant and Exts.P1 to P10 were marked. From the side of the defence, Dws. 1 to 4 were examined and Exts.D1 to D11 were produced. Beside the above, X1 to X2(c) are also marked as court exhibits. The trial court, after an elaborate consideration of the entire evidence and materials, has found that in this case, there is nothing to come to a conclusion that Ext.P1 is supported by consideration or else Ext.P1 was not given in consideration for a legally enforceable debt or liability. It is also found that the accused in this case had successfully rebutted the presumption. It is the above finding and order of acquittal challenged in this appeal.

Heard the counsel for the appellant and the respondent.

Learned counsel, while challenging the entire findings of the trial court, specifically contended that one of the reasons by which the learned Magistrate refused to accept the case of the complainant is that the civil court in an identical circumstance has found that through Ext.D1 judgment, the Sub Court has found that Ext.P1 and the promissory note in favour of PW1''s wife were given as a security and those documents were not supported by consideration and hence there was already a finding by a competent court. According to the learned counsel, the above findings of the Sub court are not final since the appeal against the above judgment is pending before this Court as R.F.A. No. 314 of 2006. Therefore, the counsel submits that the disposal of the appeal may be postponed till a decision in the above appeal.

On the other hand, the counsel for the respondent submitted that the cheque was dishonoured not only for the reason of insufficiency of fund but also for the reason that there was a stop memo issued by the drawer-the respondent/accused. The trial court has also found that the accused has succeeded in making out a probable case and thereby rebutted the presumption u/s 139 of the NI Act and therefore according to the counsel, there is no scope for any interference by this Court in the above appeal.

I have carefully considered the arguments advanced by the counsel for the appellant and the respondent. Regarding the liability connected with the cheque in question, a competent civil court has already came to a specific finding that the cheque in question and the promissory note in favour of PW1''s wife were given only as a security and the same are not supported by any consideration. According to me, the learned Magistrate is fully justified and correct in his finding based upon the civil court finding, especially in the light of the decision of the Hon''ble Apex court reported in K.G. Premshanker Vs. Inspector of Police and Another, . If that be so, I find not even a remote scope to interfere with the findings of the court below, especially considering the other findings of the court below with respect to the defence advanced by the accused. Therefore, the appellant is miserably failed to make out a prima facie case in support of his challenge against the judgment of the trial court. Going by the judgment of the trial court it can be seen that the findings of the court below are supported by valid reasons and the reasons are rested upon the evidence and materials on record. Therefore, it cannot be said that, neither the findings of the court below nor the judgment impugned in this appeal are perverse or illegal. In the decision in State of Rajasthan Vs. Darshan Singh @ Darshan Lal, , the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held:

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.

The appellant in the present case has miserably failed to make out exceptional cases or compelling reasons to interfere with the order of acquittal recorded by the trial court. Therefore, I find no merit in this appeal.

Accordingly, the same is dismissed.