S.Bhaskaran vs C.T.Muraleedharan
2021 Latest Caselaw 18050 Ker

Crl.A.No.1431/2007                     1

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                     THE HONOURABLE MR. JUSTICE GOPINATH P.
      FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
                             CRL.A NO. 1431 OF 2007
 AGAINST THE JUDGMENT IN CC 201/1998 OF ADDITIONAL CHIEF JUDICIAL
           MAGISTRATE,THIRUVANANTHAPURAM, THIRUVANANTHAPURAM
APPELLANT/COMPLAINANT:

              S.BHASKARAN
              SANTHA BHAVAN, TC 17/1970, PALACE VIEW ROAD,,
              POOJAPPURA, THIRUVANANTHAPURAM.

              BY ADV SRI.SUMAN CHAKRAVARTHY



RESPONDENT/ACCUSED & STATE:

      1       C.T.MURALEEDHARAN
              SOUMATHY, TC 17/1822-2, POOJAPPURA,,
              THIRUVANANTHAPURAM.

      2       STATE OF KERALA REPRESENTED BY
              THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
              ERNAKULAM.

              BY ADVS.BIJI MATHEW




OTHER PRESENT:

              SRI. BIJI MATHEW - R1.
              SRI SANGEETH RAJ (PP)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.1431/2007                       2

                                 JUDGMENT

The complainant in C.C.No.201/1998 on the file of the Additional Chief

Judicial Magistrate Court, Thiruvananthapuram is the appellant herein. The

appellant/complainant filed C.C.No.201/1998 on the allegation that a cheque

issued by the 1st respondent /accused for a sum of Rs.90,400/- for settling a debt

due from the 1st respondent/accused to the appellant/complainant was returned

'unpaid' on the premise that the account on which the cheque was drawn had been

closed. The complaint alleged the commission of offences under Section 138 of

the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The 1 st

respondent/accused denied any transaction with the appellant/complainant and

took the plea that the subject account had been closed by him as he had lost five

cheque leaves in respect of that account and further that one of the said cheque

leaves had somehow reached the possession of the appellant/complainant. The

appellant/complainant examined himself as PW1. PWs 2 and 3 were his sons, who

also deposed that they had seen the 1 st respondent/accused handing over the

cheque in question to their father. The 1 st respondent/accused examined DW1,

who was the Manager of the State Bank of Travancore, Statute Branch,

Thiruvananthapuram, who also produced the account opening from in respect of

the subject account. On an appreciation of the evidence and finding that PWs 2

and 3 are the sons of the appellant/complainant-PW1, the trial Court found that

their evidence cannot be given much weight in the matter of establishing any

transaction between the appellant/complainant and the 1 st respondent/accused.

The Court also compared the alleged signature on Ext.P1 cheque with the signature

on Ext.D1 account opening form and found that there was absolutely no similarity

in the signature on Ext.P1 with the admitted signature on Ext.D1 account opening

form. The Court also found that the complaint and the evidence given by PW1 (the

appellant/complainant) in the box did not, with any clarity, explain the nature of

the transaction between the appellant/complainant and the 1 st

respondent/accused. On all these findings, the trial Court acquitted the 1 st

respondent/accused.

2. Before this Court, it is the case of the learned counsel appearing for

the appellant/complainant that the trial Court has proceeded on completely wrong

basis and that the Court went wrong in carrying out the comparison of signature in

Ext.P1 cheque with the signature of the 1 st respondent/accused in Ext.D1 account

opening form. He would submit that, if there is any doubt regarding the

signature, Ext.P1 cheque should have been forwarded for forensic examination by

a handwriting expert. It is also submitted that the trial Court completely

overlooked the fact that there is a statutory presumption in favour of the holder of

a cheque under Section 139 of the Negotiable Instruments Act.

3. The learned counsel for the 1st respondent/accused would contend that

a perusal of Ext.P1 cheque will show that it does not even bear the signature of any

person much less the signature of the 1st respondent/accused. All that it bears are

the alphabets 'Mdn', which is not even written at the place where the signature

should be affixed on the cheque. He also submits that the 1 st respondent/accused

was, at the relevant point of time, a fairly senior official of the State Government

and there are several documents which would show the actual signature of the 1 st

respondent/accused. He would further submit that the question of applying the

statutory presumption under Section 139 of the Negotiable Instruments Act does

not arise in this case as such a presumption is a rebuttable presumption and in the

facts of the present case, the 1 st respondent/accused had clearly discharged any

burden on him by virtue of the statutory presumption and it was for the

appellant/complainant to prove his case by adducing credible evidence. He,

therefore, submits that the trial Court had rightly acquitted the 1 st

respondent/accused.

4. I have considered the contentions raised. I have also perused Ext.P1

cheque and Ext.D1 account opening form. The initials 'Mdn' on Ext.P1 cheque

does not bear any resemblance whatsoever to the signature of the 1 st

respondent/accused on Ext.D1 account opening form. The procedure adopted by

the Court in examining the signature on Ext.P1 cheque with the signature on

Ext.D1 account opening form cannot be faulted in the light of the provision in

Section 73 of the Indian Evidence Act. That apart, the alphabets 'Mdn' on Ext.P1

cheque does not even appear to be any form of signature as it is not even affixed at

the place where a cheque is normally signed by a person issuing a cheque. Further,

as rightly found by the trial Court, a reading of the complaint also shows that there

is absolutely no averment regarding the nature of the transaction between the

appellant/complainant and the 1st respondent/accused. The evidence tendered in

the box by PW1 also does not inspire confidence as the appellant/complainant has

not cared to explain the circumstances under which an amount of Rs.90,400/

became due to him from the 1st respondent/accused. The evidence of PWs 2 and 3

are, as rightly found by the trial Court, those of persons having from close

relationship with the appellant/complainant and therefore, their evidence also

does not inspire any confidence for reaching a finding of guilt against the 1 st

respondent/accused. Further, as rightly found by the trial Court, there is no

evidence to suggest that an offence under Section 420 of the Indian Penal code had

been made out.

For all the aforesaid reasons, I find that the order of acquittal in the

judgment dated 15.12.2006 in C.C.No.201/1998 on the file of the Additional Chief

Judicial Magistrate Court, Thiruvananthapuram warrants no interference at the

hands of this Court. The appeal fails and it is accordingly dismissed.

sd/-

GOPINATH P.

JUDGE acd