Thomas Abraham vs The State Of Kerala
2021 Latest Caselaw 129 Ker

             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

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

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.

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

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

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