Kerala High Court
K.Raveendran Nair vs C.Latha on 7 February, 2025
CRL.A NO. 2284 OF 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
FRIDAY, THE 7
DAY OF FEBRUARY 2025 / 18TH MAGHA,
1946
CRL.A NO. 2284 OF 2007
GAINST
A THE ORDER/JUDGMENT DATED
20.11.2007 IN Crl.L.P.
NO.1162
OF
2007
OF HIGH
COURT
OF KERALA
ARISING OUT OF
THE
ORDER/JUDGMENT
DATED
20.07.2007
IN
ST
NO.336
OF
2005
OF
JUDICIAL
MAGISTRATE OF FIRST CLASS -VII, THIRUVANANTHAPURAM
APPELLANT/COMPLAINANT:
K.RAVEENDRAN NAIR,
VIJAYA GOKULAM, ATHANI LANE, VANCHIYOOR,
THIRUVANANTHAPURAM.
BY ADV PAUL JACOB (P)
RESPONDENTS/ACCUSED:
1
C.LATHA,
STENOGRAPHER, PROPELLANT FUEL COMPLEX (PFC), VSSC,
THUMBA, THIRUVANANTHAPURAM.
2
TATE OF KERALA REPRESENTED BY
S
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
Y ADVS.
B
PUBLIC PROSECUTOR
SRI.K.K.DHEERENDRAKRISHNAN
SRI.S.RAJEEV
SRI.SHAJIN S.HAMEED
OTHER PRESENT:
SR.PP-SRI.RENJIT GEORGE
HIS
T CRIMINAL
APPEALHAVING
BEEN
FINALLY
HEARD
ON
07.02.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2284 OF 2007
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JUDGMENT
ThisappealisattheinstanceofthecomplainantinST.No.
336 of 2005, on the file of Judicial First Class Magistrate
Court-VII, Thiruvananthapuram, challenging acquittal of the
accused, in a complaint filed by him under Section 138of the
NegotiableInstrumentsAct(forshort,'theNIAct')videjudgment
dated 20/7/2007.
2. The case of the complainant is that, the accused
borrowed Rs.8 lakh from him, and towards discharge of that
debt, sheissued Ext.P1cheque dated25/8/2002,assuringthat
it would behonoured onpresentation before thebank.Butthe
chequewasdishonouredforthereason 'insufficientfunds'.The
complainant sent registered lawyer notice to the accused
intimating dishonourof thecheque,anddemandingthecheque
amount. Inspite of receiptof notice,the accused didnot return
the amount, and hence the complainant.
3.Ontakingcognizanceandonappearanceoftheaccused
before the trial court, particulars of offencewas read overand
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explained to which she pleaded not guilty and claimed to be
tried.
4. PW1 was examined, and Exts.P1 to P5 were marked
from the side of the complainant.
5. On closure of complainant's evidence, accused was
questioned under Section 313 of Cr.P.C. She denied all the
incriminating circumstances brought onrecord, andstatedthat
the complainant was a friend of herdriver Shajahan. Shewas
giving salary to herdriver bywayofcheques.Thecomplainant
andSri.Shajahanmadesexualadvancesagainsther,andsince
she refused, Sri.Shajahan handed over her signed cheque to
the complainant, which was manipulated to file this complaint.
6. Theaccused herself gotexaminedasDW1,andExt.D1
was marked from her side.
7.Onanalyzingthefactsandevidence,andonhearingthe
rival contentions from either side, the trial court acquitted the
accused, finding that the complainantcouldnotprovehiscase
beyond doubt. Aggrieved by the acquittal of the accused, the
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complainant has preferred this appeal.
8.Heardlearnedcounselfortheappellant/complainantand
learned counsel for the 1st respondent/accused.
9.Learnedcounselfortheappellantwouldcontendthatthe
accused was admitting her signature in Ext.P1 cheque. The
presumptions available under Sections 118 and 139ofthe NI
Act was there, to prove that Ext.P1 cheque was issuedfor an
amountofRs.8lakh,towardsdischargeofalegallyenforceable
debt. So according to him, the trial court went wrong in
acquitting the accused, and hence the accused has to be
convicted under Section 138 of the NI Act setting aside the
impugned judgment.
10. Whereas learned counsel for the 1st respondent/
accused would submitthat, thecomplainanthasnocase,even
in the complaint, what was the real transaction between the
appellantandthe1st respondent,soastoadvanceRs.8lakhto
her. Inthe year 2002, Rs.8 lakhwas notasmallamount,tobe
advanced to a lady without executing any documents and
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without the presence of anywitnesses.Moreover,the accused
was a confidential assistant working in VSSC,
Thiruvananthapurm, and her husband was employed abroad.
So there was no need for her to borrow any money from the
complainant. Learned counsel further contend that, one
Mr.Shajahan wasthedriveroftheaccused,towhomsalarywas
given by way of cheques signed by the accused. The
complainant was a friend of Mr.Shajahan and both of them
madesomeillicit advancesagainst her,andsincesherefused,
they conspired together, to file a false complaint against her,
misusing her cheque.
11. In the original complaint, the complainant has stated
that,theaccusedhadsentreplynoticetothecomplainant.Butit
is not mentioned, when that reply noticewas receivedby him.
But in the proof affidavit filed by the complainant, there is no
mention about receipt of reply notice, which was sent by the
accused. In theappeal learnedcounsel fortheappellantfiled
Crl.M.A.No.4328 of 2013, to receive the reply notice dated
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8/11/2002 as Annexure-A1. But no such documents as
Annexure-A1 was seen produced before this Court. On going
through the deposition of DW1-the accused, she categorically
stated that, she had not sent any reply notice. So the
complainant could notprovebeforecourtthat,theaccusedhad
admitted in her reply notice that she had borrowed some
amounts from the complainant, for which Ext.P1 cheque was
issued.
12. The 1st respondent/accusedischallengingthefinancial
capacity of thecomplainanttoadvanceRs.8lakh.Duringcross
examination PW1 admitted that he was not an income tax
payee.Accordingtohim, intheyear1998,hesoldawayhistwo
lorries, for an amount of Rs.5 lakh, and that was used forthe
advancingRs.8lakhtotheaccused.Evenaccordingtohim,the
lorries were sold awayin the year1998.But accordingto him,
he advanced Rs.8 lakh to the accused in the year 2002. He
failed to show the source for the balance of Rs.3 lakh for
advancing Rs.8 lakh to the accused. Moreover, it is difficultto
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believethat,hewaskeepingthesaleproceedsofhislorries for
almostfouryears,soastoadvancethatamounttotheaccused.
No bank passbookof the complainantwas produced to prove
hisfinancialcapacitytoadvanceRs.8lakhtotheaccused.True
that it is not necessary to plead and prove the original
transactionforwhichthechequewasissued,when executionof
the cheque is otherwise proved or admitted. But at thesame
time, in proof of due execution of the cheque, the original
transaction, liability or debt for which the cheque was issued,
may assumerelevancefor dischargingtheinitialburden,which
lies on the complainant. Only when that initial burden is
discharged by the complainant, the presumptions under
Sections 118 and 139 of the NI Act will come to his rescue.
When execution of the cheque is denied by the accused, the
burden is on thecomplainant to provethat theinstrument was
duly executed by the maker.
13. In the case on hand, the accused never admitted
execution of Ext.P1 cheque, in favour of the complainant,
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towards discharge of any legally enforceable debt. Her case
was that, her cheque given to her driver was misused by the
complainant, as she did not heed to his illicit demands. Mere
admission of signature in Ext.P1 cheque, is not sufficient to
provethetransactionasallegedbythecomplainant.Therewas
no probability for the complainant to advance Rs.8 lakh tothe
accused, without receiving any documents, and without the
presenceofanywitnesses,astheamountinvolvedwasahuge
one. Thecomplainant failedto prove hisfinancialcapacityalso
to advance Rs.8 lakh to the accused, that too in the year 2002.
14.Advertingtothesefactsandcircumstances,ithastobe
held that, the trial court rightly acquitted the accused. So this
court finds no reason to interfere with the impugned judgment.
The appeal fails, and hence dismissed.
d/-
S
SOPHY THOMAS
JUDGE
ska
