Kerala High Court
Sibi Simon vs Ramla on 7 February, 2025
Crl.Appeal No.306 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
CRL.A NO. 306 OF 2014
AGAINST THE JUDGMENT DATED 30.07.2013 IN CC NO.341 OF
2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS , PATTAMBI
APPELLANT/COMPLAINANT:
SIBI SIMON,
S/O. C.K.SIMON,
CHEERANVEETIL HOUSE,
NEDIRI MANGALAM AMSOM,
OTTAPALAM TALUK.
BY ADV SRI.P.K.MOHANAN(PALAKKAD)
RESPONDENTS/ACCUSED AND STATE:
1 RAMLA
AGED 31 YEARS,
W/O. MOIDEENKUTTY, PERUMANOOR P.O.,
CHALISSERY(VIA),
PALAKKAD DISTRICT-679 536.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN-682031.
BY ADVS.
SRI.BIJU MARTIN
SRI.D.M.NOWFAL
SRI.P.T.SHAHUL HAMEED
SRI.M.M.SALIM
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2025, THE COURT ON 07.02.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.306 of 2014
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C.S.SUDHA, J.
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Crl.Appeal No.306 of 2014
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Dated this the 7th day of February 2025
JUDGMENT
This is an appeal under Section 378(4) Cr.P.C. filed by
the complainant against the judgment dated 30/07/2013 in
C.C.No.341/2010 on the file of the Judicial First Class Magistrate
Court, Pattambi acquitting the accused under Section 255(1)
Cr.P.C. of the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (the N.I. Act)
2. According to the complainant, the accused in
discharge of an amount of ₹50,000/- issued Ext.P1 cheque dated
17/04/2010 drawn on her account maintained with the Palakkad
District Co-operative Bank, Koottanad branch. When the
complainant presented the cheque for collection, it was
dishonoured due to insufficient funds in the account of the accused
as per Ext.P2 memo dated 17/04/2010. Thereafter, the
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complainant caused to issue Ext.P3 notice dated 24/04/2010
calling upon the accused to clear the cheque amount. Notice was
received by the accused, which is evidenced by Ext.P5
acknowledgment card. Instead of clearing the cheque amount, she
has sent Ext.P6 reply notice dated 14/05/2010 raising untenable
contentions. Hence, the complaint.
3. The trial court on the basis of the sworn
statement of the complainant, took cognizance of the offence
under Section 138 of the N.I. Act and summons was issued to the
accused. When the accused appeared on receipt of summons, she
was furnished with copies of all the relevant records. The
particulars of the offence were read over and explained to the
accused to which she pleaded not guilty.
4. The complainant examined himself as PW1 and
Exts.P1 to P6 were marked on his side. After closing the evidence
of the complainant, the accused was duly questioned under
Section 313(1)(b) Cr.P.C., she denied the entire allegations and
pleaded innocence. DW1 and DW2 and Exts.D1 to D4 were
marked on the side of the accused.
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5. The trial court on a consideration of the oral and
documentary evidence and after hearing both sides, by the
impugned judgment, found the accused not guilty of the offence
punishable under Section 138 of the N.I. Act and hence acquitted
her under Section 255 Cr.P.C. Aggrieved, the complainant has
come up in appeal.
6. The only point that arises for consideration in
this appeal is whether the finding of acquittal of the accused by
the trial court requires any interference by this Court.
7. When the matter was taken up for hearing, there
was no representation for the first respondent, though service was
complete. Hence the learned counsel for the complainant was
heard and this Court is proceeding to consider the appeal on merits
after going through the entire records in this case.
8. It was submitted by the learned counsel for the
appellant/complainant that the trial court committed a gross error
in acquitting the accused. The evidence on record is more than
sufficient to establish the offence alleged against her. The
issuance and execution of Ext.P1 cheque stands proved by the
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materials on record. Hence the presumption contained under
Section 118 of the N.I. Act was attracted and hence the trial court
ought to have convicted the accused, goes the argument.
9. The fact that Ext.P1 cheque and the signature on
the same is that of the respondent/accused are admitted. However,
mere admission of signature in the cheque would not mean that
execution is admitted. Here the respondent/accused has a definite
case that there was no financial transaction between herself and
the complainant. On the other hand, her husband in the year 2008,
had borrowed an amount of ₹10,000/- for interest from the
complainant. When the amount was borrowed, the complainant
had taken three signed blank cheque leaves, bank passbook,
identity card of the respondent/accused as well as a signed stamp
paper from the accused. An amount of ₹2,000/- each for 12
months was paid by the husband of the accused. Apart from this,
an amount of ₹1,000/- was also paid in cash. When DW1, the
husband of the accused, demanded the documents back, the
complainant demanded a further amount of ₹50,000/-. In 2011, the
accused lodged a complaint before the Pattambi police, pursuant
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to which the office of the complainant was raided and many
documents were seized.
10. In order to establish her case, the accused
examined DW2, the then Sub Inspector, Chalissery police station.
DW2 deposed that on 07/09/2011 as per the directions of Circle
Inspector of police, Pattambi, the business concern of the
complainant herein was raided. The search was conducted as
information was received that illegal money transactions were
going on in the said concern. He prepared Ext.D1 search list.
Among the several documents seized in the search, there was also
a passbook of the accused and that of DW1, her husband. The
fact that the bank passbook of the accused had also been seized
from his concern is admitted by the complainant. However, his
case is that the said passbook had been planted in his business
concern and thereafter the seizure was staged. It has also come
out in evidence that during the raid, about 50 blank stamp papers
and 20 blank cheque leaves had been seized by the police during
the search.
11. The learned counsel for the
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complainant/appellant during the course of the arguments, handed
over a copy of the judgment dated 28/12/2015 in
C.C.No.126/2012 on the file of the Judicial First Class Magistrate,
Pattambi. This was a case (Crime no.447/2011, Pattambi police
station) registered on the basis of a complaint of the accused
herein against the complainant/appellant alleging commission of
offences punishable under Section 420 IPC and Sections 3, 4 read
with Section 17 of the Kerala Money Lenders Act, 1958. As per
the said judgment, the complainant herein has been acquitted
under Section 248(1) Cr.P.C. of all the offences alleged against
him. Therefore referring to this judgment, it was pointed out that
the material witnesses including the accused herein never
appeared before the trial court concerned which resulted in an
acquittal of the accused therein, who is the complainant/appellant
herein. This would also show that the defence case set up by the
accused/respondent is not correct. It is true that in
C.C.No.126/2012, the complainant/appellant has been acquitted.
However the defence version of the accused herein is that there
was never any money transaction between herself and the
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complainant and that the actual transaction was between DW1, her
husband and the complainant herein. This defence of the accused
stands probabilised by the materials on record. The accused need
not prove her defence beyond reasonable doubt. She only needs to
show preponderance of probabilities. The respondent/accused on
the basis of the materials on record, has been able to raise doubts
regarding the passing of consideration. Hence in these
circumstances, I do not find any infirmity in the findings of the
trial court calling for an interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
