IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
CRL.A.No.2254 OF 2006
AGAINST THE JUDGMENT IN CC No.586/2002 DATED 25-08-2006 OF
JUDICIAL MAGISTRATE OF FIRST CLASS,THIRUVALLA
AGAINST THE JUDGMENT IN Crl.L.P. 599/2006 DATED 15-11-2006 OF
HIGH COURT OF KERALA
APPELLANT/COMPLAINANT:
THOMAS ABRAHAM,
AGED 58 YEARS.
S/O.ABRAHAM,, CHITTAZHATH VEEDU,
MALLAPPALLY VADAKKAKARA,
MALLAPPALLY VILLAGE.
BY ADV. SRI.ESM.KABEER
RESPONDENTS/ACCUSED:
1 THE STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
2 CHERIYAN UMMEN,
ASARIPARAMBIL VEEDU, CHENGAROOR,
MALLAPPALLY, MALLAPPALLY VILLAGE.
BY PUBLIC PROSECUTOR SRI.P.K.BABU
BY ADV. SRI.R.SANTHOSH BABU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2254 OF 2006 2
JUDGMENT
Dated this the 5th day of January, 2021 This Appeal is directed against the judgment in C.C.No.586 of 2002 of Judicial First Class Magistrate Court, Thiruvalla (for short, 'the trial court'). The judgment was pronounced by the court in a prosecution filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 (for short, the N.I Act').
2. The allegations in the complaint was that the accused borrowed a sum of Rs.50,000/- from the complainant on 11.10.2000 and when that amount was demanded back, a cheque dated 21.12.2001 drawn on Catholic Syrian Bank Ltd. Chengaroor extension counter was executed and issued. The cheque was presented for encashment before the Corporation Bank at Pathanamthitta Branch on 04.01.2002 and it was dishonoured on 09.01.2002 for the reason of insufficiency of funds in the account maintained by the accused with the Bank. Memo to intimate about the bouncing of the cheque was issued to the complainant from the Bank on 17.01.2002. Statutory notice in writing demanding repayment of the amount within 15 days and apprising the factum of dishonour of the cheque, was issued to the accused. Despite receipt of the notice, the amount demanded was not repaid. In that context, alleging that the accused has committed the CRL.A.No.2254 OF 2006 3 offence punishable under Section 138 N.I Act, the prosecution was launched by the appellant by filing a private complaint under Section 142 N.I Act.
3. The accused was summoned and on his appearance before the court, copies of all relevant prosecution records were furnished to him. On his appearance, particulars of the offence were read over to him and he pleaded not guilty. Thereupon trial was scheduled to be held and he faced trial.
4. The evidence of the complainant consists of oral evidence tendered by him as PW1 and Exts.P1 to P6. During examination under Section 313 (1)(b)Cr.P.C., all incriminating circumstances brought in evidence were put to the accused and he denied all those. He was called upon to enter on his defence and he examined a witness as DW1 and marked Exts.D1 & D2 series. On appreciation of the evidence, the trial court found that the complainant failed to prove that the bounced cheque was issued towards discharge of a legally enforceable debt. The trial court on appreciation of the evidence found the case put forth by the accused as more probable than that of the complainant. The court also found the evidence adduced by the complainant insufficient to render a finding that the accused has committed the offence under Section 138 N.I. Act. Accordingly, he was found not guilty for the offence and was acquitted by the impugned judgment.
5. The contention of Sri. E.S.M. Kabeer, the learned counsel for the appellant was that the trial court failed to appreciate that the CRL.A.No.2254 OF 2006 4 transaction alleged by the complainant was between himself and the 2 nd respondent. According to him, the signature of the cheque was admitted by the accused and in such a circumstance the trial court ought to have arrived at a finding of guilt of the accused and convicted and sentenced him for the offence under Section 138 N.I Act. The contention secondly raised was that in a context wherein signature in the cheque is admitted by the accused as affixed by him, there is no basis for the trial court to hold that the execution of the cheque is not proved by the complainant. According to him, the trial court is highly unjustified in reaching a conclusion that for establishing execution of the cheque, the complainant must have produced an agreement executed among himself and the accused. According to him, when the transaction alleged was not disputed by the accused and the signature in the cheque stands admitted by him the trial court ought not to have held that the evidence adduced by the complainant is insufficient to enter into a finding of guilt of the accused and to acquit him. Thus the appeal on hand was sought to be allowed and judgment under challenge, reversed.
6. On a perusal of the evidence adduced by the parties, it is found that the Power of Attorney Holder of the complainant has filed the proof affidavit and he has sworn precisely therein that Rs.50,000/- was borrowed by the accused from the complainant on 11.10.2000 and that Ext.P1 cheque dated 21.12.2001 was executed and issued by the accused to the complainant towards discharge of the said debt. CRL.A.No.2254 OF 2006 5
7. The stand taken by the accused was that there was a vehicle transaction between him and the wife of the complainant and the finance for meeting the price of the vehicle was availed from Investment Trust of India Ltd, Kottayam. As per the loan arrangement, the accused had remitted only Rs.2,41,685/-. The registration of the vehicle was demanded by the accused but the complainant threatened him and forcibly took away the vehicle from his custody. At the time of entering into the transaction the accused had entrusted three unfilled cheque leaves to the complainant's wife as security to ensure due payment of the loan arrears. According to him, the prosecution in question was launched utilising one among those cheques.
8. Though proof affidavit was filed by the Power of Attorney Holder, the original complainant appeared and faced the cross examination. He has admitted that Smt.Cisily Thomas is his wife. He denied the allegation of the accused that three cheques have been obtained by his wife from the accused as security.
9. The accused got marked Ext.D1 and D2 series in evidence. Ext.D1 is the R.C book and Ext.D2 series are receipts issued from Investment Trust of India Ltd, Kottayam. Ext.D2 series would establish that payments have been remitted by the accused towards the loan availed therefrom in the name of the wife of the complainant.
10. A precise transaction of borrowal of a sum of Rs.50,000/- by the accused from him was pleaded by the complainant. The nature CRL.A.No.2254 OF 2006 6 of relationship with the accused or in what manner the complainant is acquainted with the accused is not stated by him during cross examination. He does not also have a case that any security to assure repayment of the money has been taken at the time when it was advanced by him to the accused.
11. The accused by producing Ext.D1 RC book has established that vehicle bearing Registration No.KL-3-B-4165 is owned by him and Ext.D2 series that, payments towards the loan availed for arranging the finance for purchase of the vehicle from Investment Trust of India Ltd. Kottayam has been remitted periodically in the name of one Smt.Cisily Thomas. The case of the accused was that when change of the registered ownership was demanded by him from the financial institution, the vehicle was forcibly taken from his possession. According to him, three blank cheque leaves were entrusted with the wife of the complainant as security for the due payment of the loan amount and the case on hand was falsely foisted against the accused utilising one of those cheques.
12. Though the proof affidavit was filed by the Power of Attorney Holder of the complainant, he made himself available for cross examination. He has also admitted that Smt.Cisily Thomas is none other than his wife.
13. Therefore, the complainant failed to establish that Ext.P1 cheque dishonoured by the Bank for insufficiency of funds and which formed basis for the prosecution in question to originate was issued for CRL.A.No.2254 OF 2006 7 a legally enforceable debt as pleaded by him. Rather the accused by examining DW1 and adducing Ext.D1 and D2 series in evidence made the trial court convince that his case is more probable than that alleged by the complainant.
14. When the evidence adduced by the complainant is insufficient to establish that there was a legally enforceable debt and Ext.P1 was issued towards discharge of that debt, the court is perfectly justified to dismiss the complaint. The trial court has done accordingly, on a proper appreciation of evidence. This Court is not convinced of any justifiable reason warranting interference with the impugned judgment.
In the above circumstances, Crl.Appeal fails and is dismissed.
Sd/-
MARY JOSEPH JUDGE MJL