V.S. Chandran vs Bindhu and State of Kerala

V.K. Mohanan, J.—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 19.11.2012 in C.C. No. 1372 of 2007 of the court of Judicial First Class Magistrate-I, Attingal, 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 reached at the house of the complainant on 30.12.2006 and borrowed a sum of Rs. 3,00,000/- and towards payment of the same, she issued Ext. P1 cheque dated 24.09.2007 which when presented for encashment dishonoured due to insufficiency of funds in the account maintained by the accused. It is the further case of the appellant that though a statutory notice served on the accused demanding the amount covered by the dishonoured cheque the same was not paid and, therefore, the accused has committed the offence punishable u/s 138 of the Negotiable Instruments Act.

During the trial of the case besides the complainant who examined as PW1, PWs. 2 and 3 were also examined and Ext. P1 to P10 documents were produced. From the side of the defence, DW1 was examined though no documents is produced. After considering the entire case and the evidence and materials on record, the trial court came into the conclusion that the complainant has not proved the case beyond the shadow of doubt and accordingly found that the accused is not guilty and consequently she is acquitted u/s 255(1) of Cr.P.C. It is the above finding and order of acquittal are sought to be challenged by filing an appeal for which leave of this Court is prayed for.

I have heard Sri. J.S. Ajith Kumar learned counsel for the appellant.

Counsel for the appellant vehemently submitted that by examining PWs. 1 to 3 and producing the documents referred to Exts. P1 to P10, the complainant has established his case but the trial court mainly for the reason that the source of income of the complainant has not proved, came into a wrong conclusion that the case of the complainant has not proved beyond shadow of doubt.

I have carefully considered the submissions made by the learned counsel for the appellant and I have perused the judgment of the trial court under challenge. I have also verified the deposition of the complainant and other witnesses which read over to me by the learned counsel for the appellant.

In the light of the arguments advanced by the learned counsel for the appellant, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the findings of the trial court and whether the appellant has succeeded in making out any exceptional circumstances or substantial reason to interfere with the order of acquittal of the trial court or succeeded to show that the impugned judgment is perverse or illegal. I have already referred to the case of the complainant. The defence version is that the accused is a lady and she had no money transaction with the complainant but her mother borrowed a sum of Rs. 50,000/- from the complainant and on demand her mother issued Ext. P1 cheque in blank form but she has put her signature in the cheque. Thus according to the accused, it is the said cheque misused by the complainant in the present case. The trial court has considered the entire case in the above back drops of the case of the complainant as well as the defence. The amount allegedly given to the accused is a substantially huge amount, but except Ext. P1 cheque, no other document is produced by the complainant to prove the transaction. Neither in the complaint nor in the proof affidavit the complainant has got a case that Ext. P1 was a post dated cheque given as a security. As rightly observed by the learned Magistrate about the source of income also no reference in the complaint. It is also borne out from the evidence and materials that the husband and brother of the accused are in Gulf. Though the complainant has claimed that the accused is his neighbour, no believable evidence and reasons are forthcoming as to why the accused, who is a lady borrowed the amount, especially gent members are available in her family and who are working in Gulf. Though there is no averment in the complaint regarding the source of the complainant, during the trial of the case Ext. P6 to P10 documents were produced to prove the source of income. But the learned Magistrate has, as per his discussion in paragraph 11 of the judgment, found that as per the document PW1 the complainant obtained loan from the bank on 13.05.2006 but the accused allegedly borrowed Rs. 3 lakhs from the complainant only on 30.12.2006. The complainant during cross examination has admitted that he obtained the loan for the marriage of his daughter but the date of marriage of his daughter was not mentioned any where and he claimed to lend the money after 7 months from the date of receipt of loan amount and thus according to the learned Magistrate, till that time the marriage of his daughter was not held. So the case of the complainant that he obtained the money long period prior to the marriage of his daughter, but no reason is stated for obtaining loan much earlier. In this juncture, it is relevant to note that even if admitted that the above case of the complainant that he obtained money from the bank on 30.12.2006, there is no documentary evidence except Ext. P1 cheque to prove that a sum of Rs. 3,00,000/- was given to the accused.

In this juncture, it is also relevant to note that the learned Magistrate in paragraph 12 of the judgment, after physical verification of Ext. P1 cheque has observed that the writing and signature of the cheque was written by different persons. As per the above observation, the entries in the said cheque is not made by the same person who put the signature. In this juncture, the evidence of Pws. 1 and 2 with respect to the execution of cheque is relevant. According to the complaint and as per his evidence, the accused came to his house and obtained the money and at that time the accused executed and handed over cheque. But when PW2 was examined, according to the learned magistrate, his testimony would show that he saw the transaction and obtained the cheque and verified the same after the issuance of it, but he was not able to say the description of the cheque when defence counsel put questions on that aspect. The learned Magistrate has also found that both the witnesses said that the cheque was written by a 3rd person who accompanied the accused. But they were not able to identify that person. In this juncture, it is relevant to note that the complainant claimed that he is the neighbour of the accused, still then they failed to identify the person allegedly accompanied the accused. In the complaint there is no case to the effect that the cheque in question was written by a third person who accompanied the accused. The above evidence of Pws. 1 and 2 goes against the averment in the complaint that the accused executed and issued the cheque. In this juncture, it is also relevant to note that neither in the complaint nor in the deposition of PW1 he has got a case that the accused prior to 30.12.2006 contacted the complainant and demanded money and there was formal agreement to come with cheque on 30.12.2006 so as to pay the amount. The observation of the learned Magistrate after physical verification of Ext. P1 cheque about the writings and signature in the cheque written by different persons, very vital and relevant, which goes against the case of the complainant and the same probabilise the case of the defence.

On examination of the above defects and infirmities and contradictions in the case of the complainant, in the background of the defence advanced by the accused according to me, the same are crucial and against the complainant. The accused has got a definite case as to how Ext. P1 cheque reached in the hands of the complainant and to prove the same DW1 the mother of the accused was examined. According to the defence her signed cheque was given to the complainant by her mother when the accused''s mother borrowed a sum of Rs. 50,000/-. It is also the case of the defence that the complainant gave Rs. 50,000/- to the mother of the accused at the rate of interest of 4 rupees. Subsequently DW1 paid the amount to the complainant on 01.06.2006 and before that she give three months interest. But there was difference of opinion with regard to the interest arrears and thus the complainant has filed the present complaint against the daughter DW1 using the cheque so obtained from DW1, the mother of the accused. During the cross examination on behalf of the complainant, DW1 has stated that she is ready to pay the interest due. So the discrepancies in the evidence of the complainant and the physical appearance of Ext. P1 cheque shows that the case of the accused is more probable and the complainant could not clear the doubt and sued the findings of the learned Magistrate that the complainant not proved his case beyond shadow of doubt is absolutely correct. Therefore, the findings of the court below, in the light of the above facts and circumstances and in view of the evidence and materials referred to in the judgment, is not unreasonable or illegal or perverse. In a recent decision reported in Pudhu Raja and Another Vs. State, rep. by Inspector of Police, the Honourable Apex Court has held that, "The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court''s order of acquittal bolsters the presumption of innocence". In short, the appellant has miserably failed to make out a prima facie case in support of his challenge against the findings of the court below and the judgment under challenge. Therefore, I am of the view that even if the appeal is entertained any further, there is not even a remote scope to interfere with such finding and order of acquittal as there is no compelling circumstances or any substantial reason.

In the result, the appeal fails and accordingly the same is dismissed.