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Judgment
V.K. Mohanan, J.—The complainant in a prosecution for the offence u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I. Act'') is the appellant herein, as he is aggrieved by the judgment dated 13.10.2008 in C.C. No. 382 of 2007 of the Judicial First Class Magistrate Court, Erattupetta by which the learned Magistrate, in his complaint, acquitted the accused u/s 255(1) of the Cr.P.C. The case of the complainant is that towards the repayment of the loan availed by the accused from him, the accused issued Ext.P1 cheque dated 12.5.2007 for an amount of Rs. 2 lakhs which when presented for encashment, returned dishonoured due to insufficient fund in the account of the accused. It is the further case of the complainant that the accused has not repaid the cheque amount in spite of the statutory notice served on him. Thus, according to the complainant, the accused has committed the offence punishable u/s 138 of the N.I. Act. During the trial of the case, the complainant himself has mounted to the box and got examined as PW1. He has also produced Exts.P1 to P6 documents. From the side of the defence, Dws.1 to 3 were examined and produced Exts.D1 and D2. The trial court finally has found that the accused has not issued Ext.P1 cheque towards the discharge of any legally enforceable debt or liability and accordingly, found that the essential ingredients of Section 138 of the N.I. Act are not attracted and consequently, found that the accused is not guilty for the said offence and thus, he is acquitted. The trial court has also ordered to book M.C. case against the complainant u/s 250 of the Cr.P.C. for having made the accusation against the accused without reasonable cause and ordered to issue summons to the complainant to show cause why he should not pay compensation to the accused. It is the above findings and order of acquittal and the proceedings u/s 250 of the Cr.P.C. are challenged in this appeal.
I have heard Sri. Asok. M. Cherian, learned counsel for the appellant and Sri. Sebastian Davis, learned counsel for the first respondent.
Counsel for the appellant vehemently submitted that the accused has admitted that Ext.P1 cheque belongs to his account and also admitted the signature as that of him, which is seen in Ext.P1 cheque. Therefore, according to the counsel, the complainant being the holder of the cheque is entitled to get presumption u/s 138 of the N.I. Act, but the learned Magistrate rejected the case of the complainant and opted to accept the case of the defence against the decision of the Apex Court reported in Rangappa Vs. Sri Mohan, .
On the other hand, the learned senior counsel Sri. Sebastian Davis, after taking me through the complaint, the proof affidavit and the deposition of PW1 through cross-examination has submitted that the learned Magistrate is fully justified in his finding that the appellant has miserably failed to prove the execution of the cheque in question. Therefore, according to the learned counsel, the complainant has miserably failed to prove the execution of cheque which is an essential ingredient to attract the offence u/s 138 of the N.I. Act. It is also the submission of the learned counsel that the findings of the court below are supported by the evidence and materials and therefore, there is no scope for any interference with the impugned judgment and with the order of acquittal recorded in favour of the accused.
I have carefully considered the arguments put forward by the counsel for the appellant and the respondents. I have gone through the judgment of the trial court and the evidence and materials on record.
In the light of the rival contentions and in the light of the evidence and materials on record, the question that emerges for consideration is whether the trial court is justified in its finding and acquitting the accused and further, whether the appellant has succeeded in making out a case so as to interfere with the findings of the court below and the order of acquittal secured by the respondent/accused.
The specific case of the complainant is that since the accused being a close relative of the complainant, on his demand, the complainant released an amount of Rs. 2 lakhs as a loan in favour of the accused and when demanded back the said amount, the accused executed and issued Ext.P1 cheque, which is dishonoured for want of sufficient fund, whereas the specific case of the accused is that there was no transaction with the complainant and no amount is availed of from him and the cheque in question is the one, which was entrusted with the complainant, being a mediator, connected with the property transaction in which DW1 and the accused are involved. The trial court considered the entire facts and circumstances including the pleading in the complaint and the evidence on record. During my enquiry, to find out any illegalities or irregularities with respect to the above finding, I find that the complainant has no specific case regarding the transaction under which Ext.P1 reached in his hand. In the first paragraph of the complaint, the allegation is only to the effect that towards the loan availed of by the accused, from the complainant and on demand of such amount, the accused issued the cheque in question by putting the signature at the residence of the complainant. No details with respect to the demand of money, payment of the same etc. are pleaded in the complaint. So also in the proof affidavit filed by the complainant in lieu of chief examination, what is stated is that on demanding the money, the accused came to his house and put his signature on the cheque before him and handed over the same to the complainant. It is stated in the proof affidavit that the accused is his relative and on 9.8.2007, the accused obtained a sum of Rs. 2 lakhs as loan. Strictly speaking, the above version in the affidavit is not in terms of the plea in the complaint. During the cross-examination, the defence has succeeded in bringing out that there is no reason for non-mentioning of the date of the payment of the loan on 12.3.2007 in the complaint. At that point of time, the complainant has added that it was on 9.3.2007, the amount paid. It is also relevant to note that neither in the complaint nor in the proof affidavit or even during the cross-examination, PW1/the complainant has a case that the accused made any endorsement in the cheque towards execution of the cheque in his presence. According to PW1, the accused brought up a filled up cheque and put his signature in the cheque in the presence of the complainant. No explanation is forthcoming for adopting such a recourse. The complainant has no case that the accused is illiterate or unable to make entries in the cheque. In the absence of any such claim or the evidence, I am unable to understand why the complainant accepted, if the same is true, a filled up cheque brought by the accused. In this juncture, it is also relevant to note that when a question is put to PW1, he answered as follows:-
On a physical perusal of Ext.P1 cheque, it can be seen that the entries in the cheque and the signature therein are made in two different ink and hand writing. In the light of the ignorance expressed by PW1, during the cross-examination about the handwriting and ink used in Ext.P1 cheque and particularly in the light of the admission made by him during the cross-examination that he had received signed cheque of the accused connected with the property transaction mentioned by him, probablise the case of the defence as to how Ext.P1 cheque reached the hands of the complainant. It is beyond dispute that in Ext.P1 cheque, the date is though written as 12.5.2007, the cheque is printed and meant for use in 1990s. In the light of the above fact sand circumstances, it can be seen that the learned Magistrate of the trial court is fully justified in his finding that the complainant has miserably failed to prove the execution of the cheque particularly in the light of the evidence and materials on record which I referred to above. The accused has also succeeded in bringing out a probable case as to how the signed cheque of the accused reached the hands of the complainant. If that be so, according to me, it cannot be held that the judgment of the trial court is perverse or the finding of the learned Magistrate is illegal so as to interfere with the same.
In a recent decision of the Apex Court reported in State of Rajasthan Vs. Darshan Singh @ Darshan Lal, , the Hon''ble Apex Court has held as follows:-
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, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the impugned judgment. Therefore, I find no reason to allow the appeal, especially when the petitioner has miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court and hence, the appeal is liable to be dismissed.
However, it is relevant to note that the learned Magistrate has, as per his decision in paragraph 21 of the judgment, ordered to initiate proceedings against the appellant u/s 250 of the Cr.P.C. and booked M.C. No. 47/2008. In the present case, it can be seen that according to the complainant, the accused is one of his relatives and the accused is not denying the same. The parties are belonging to the same family. It is also relevant to note that the cheque in question is produced from the possession of the complainant, though he had failed to prove its execution and the passing of consideration. Under the above circumstances, according to me, it was just and proper to put an end to the litigation between such parties and to restore cordial relationship between the parties and not warranted to initiate proceedings against the appellant u/s 250 of the Cr.P.C. Therefore, it is only just and proper to set aside that portion of the judgment of the trial court and the further proceedings in M.C. No. 47 of 2008, so as to create cordial relation among the parties.
In the result, this Criminal Appeal is dismissed as there is no merit. At the very same time, the decision of the learned Magistrate to register and institute M.C. No. 47 of 2008 u/s 250 of CrP.C. is set aside and the further proceedings in M.C. No. 47 of 2008 are quashed. Subject to the above order, the appeal is dismissed.