Kerala High Court
Benny Joseph vs State Of Kerala And Another on 26 May, 2025
2025:KER:36116
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
CRL.A NO. 1174 OF 2007
AGAINST THE JUDGMENT IN C.C.NO.101 OF 2004 OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS, ERATTUPETTA
APPELLANT/COMPLAINANT:
BENNY JOSEPH
S/O.JOSEPH
JAVALLICHOORANATTU,
AMBARANIRAPPEL P.O., KOTTAYAM.
BY ADV SRI.S.RAJEEV
RESPONDENTS/ACCUSED:
1 STATE OF KERALA AND ANOTHER
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
2 SUDARSAN P.
S/O. PURUSHOTHAMAN NAIR
PURUSHOTHAMA VILASOM, POOVARANI P.O.,
PIKA, VAZHAMATTOM JUNCTION.
BY ADV P.C. HARIDAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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CRL.A NO. 1174 OF 2007
2
CR
JUDGMENT
Dated this the 26th day of May, 2025
This criminal appeal has been filed under Section
378(4) of the Code of Criminal Procedure, 1973, challenging
the judgment of acquittal in C.C.No.101/2004 on the files of
the Judicial First Class Magistrate Court, Erattupetta. The
appellant herein is the complainant in the said case. The 2 nd
respondent herein is the accused and the 1st respondent is the
State of Kerala, represented by the Public Prosecutor.
2. Heard the learned counsel for the
appellant/complainant as well as the learned counsel for the
accused/1st respondent. Also heard the learned Public
Prosecutor. Perused the trial court records.
3. I shall refer the parties in this appeal as
'complainant' and 'accused' for easy reference.
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4. On dishonor of Ext.P1 cheque for
Rs.1,50,000/- (Rupees one lakh fifty thousand only), alleged to
be issued by the accused to the complainant for a legally
enforceable debt, the complainant approached the trial court
and lodged a complaint alleging that the accused committed
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'NI Act' for
short).
5. The trial court took cognizance for the
offence punishable under Section 138 of the NI Act and
proceeded with trial. During trial, PW1 was examined and
Exts.P1 to P6 were marked on the side of the complainant.
DW1 examined on the side of the defence.
6. On appreciation of evidence, trial court
acquitted the accused on the finding that the complainant
miserably failed to prove the transaction which led to issuance
of Ext.P1 cheque towards the discharge of a legally
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enforceable debt or liability.
7. The points arise for consideration are;
1. Whether the trial court wrongly acquitted
the accused on the finding that he did not
commit the offence punishable under
Section 138 of the NI Act?
2. Whether the verdict under challenge
would require any interference?
3. Order to be passed?
The learned counsel for the complainant argued that
in this matter, even though in the legal notice or in the
complaint or in the chief affidavit, the date of transaction was
not disclosed, during cross-examination, the complainant
specifically given evidence that Ext.P1 cheque was issued
before one month from the date of Ext.P1 cheque. That is to
say, the cheque was issued on 01.01.2004 and the money
was borrowed one month before. It is also pointed out by the
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learned counsel for the complainant that even though during
initial cross-examination, PW1 given evidence that the amount
was obtained by sale of his property and the deposit of the
same in Federal Bank, Pala branch, the same was a mistake,
traced out during examination of DW1, the Manager of Federal
Bank. Subsequently, PW1 was recalled and given evidence
that the amount advanced to the accused was from the loan
amount of Rs.3,00,000/-, obtained by the complainant on
10.11.2003 by availing loan from Aruvithura branch of
Meenachil East Urban Co-operative Bank and he had
document to show availing of loan and discharge of liability by
selling his property. But documents relating to the said loan or
the sale of the property not produced. According to the learned
counsel for the complainant, the transaction led to execution of
Ext.P1 cheque has been proved and therefore, the
complainant is entitled to avail the presumptions under
Sections 118 and 139 of the NI Act.
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9. Repelling this contention, the learned counsel
for the accused argued that the complainant is not aware of
the exact date on which he had advanced Rs.1,50,000/- to the
accused as alleged. It is pointed out that either in the notice or
in the complaint or in the chief affidavit or during cross-
examination of PW1, he did not state the exact date. During
cross-examination, for the first time, he deposed that the
amount was borrowed one month before the date of the
cheque, that too, without specifying the date. It is pointed out
that regarding the source, during his initial cross-examination,
his version is that he had sold the property and deposited the
same in Federal Bank, Pala branch. But when DW1, the
Manager of the Branch, was examined, the said aspect was
found to be false. Later, when PW1 is recalled, his version is
that he had availed loan from Meenachil Urban Co-operative
Bank Ltd. has been introduced without producing any
documents to show the same. Therefore, the evidence of PW1
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as regards the source of money is totally unbelievable and as
such, the trial court is right in holding that the complainant
miserably failed to prove the transaction led to execution of
Ext.P 1 cheque. He also pointed out that in the case of
acquittal, there are double presumptions in favour of the
accused. Firstly, the presumption of innocence available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened
by the trial court. Further, if two reasonable conclusions are
possible on the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal recorded by the
trial court. In this regard, the learned counsel for the accused
given emphasis to the decision in Dasegowda C.K. and
Others V. State of Karnataka, reported in 2014 KHC 4456.
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10. In the instant case, the specific finding of the
learned Magistrate is that the complainant failed to prove the
transaction led to execution of Ext.P1 cheque. Going by the
evidence, as argued by both sides, the date of transaction is
not at all disclosed specifically, either in the complaint or in the
legal notice or in the chief affidavit. Similarly, in the chief
affidavit also, the exact date not mentioned. Instead, PW1
deposed that the transaction was one month before the date
of the cheque and the date of the cheque, as discernible from
Ext.P1, is 01.01.2004. Thus it is to be presumed that the
cheque was issued on 01.12.2003. In such a case, when PW1
was initially cross-examined, he deposed that the amount
deposited, by selling the property of the complainant, in the
Federal Bank, Pala in the account of his wife was advanced to
the accused. In order to negative this contention, the accused
summoned DW1, the Bank Manager, and it was proved that
the account in the name of the wife of the complainant even
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opened only during the year 2004 -2005. Later, PW1 was
recalled and he deposed that the amount was given to the
accused from the amount of Rs.3 lakh, availed as loan from
Meenachil Urban Co-operative Bank Ltd., for which she had
records. But he did not produce any records to support the
contention. Thus, the available evidence of PW1, after telling a
falsehood as evident from the deposition of DW1, without
support of any documents to show that he had availed loan
from the Aruvithura branch of Meenachil East Urban Co-
operative Bank, would not substitute the necessity to prove
that his version as to the money advanced to the accused is
true.
11. It is true that the legal position argued by the
learned counsel for the accused relying on the decision in
Dasegowda C.K. and Others (supra) is well settled. If so, the
finding of the trial court to the effect that the transaction which
led to execution of Ext.P1 cheque was not proved is only to be
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confirmed, since a definite finding that the accused committed
the offence could not be found by this Court from the evidence
tendered.
In view of the above, the verdict under challenge does
not require any interference.
Accordingly, this criminal appeal is dismissed.
Registry is directed to forward a copy of this judgment
to the jurisdictional court forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
