AI Structured Summary
Not yet generated for this judgment
Judgment
Justice V.K. Mohanan
The complainant in a prosecution for the offence u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I. Act'') is the appellant
since she is aggrieved by the judgment dated 30.9.2009 in S.T. No. 487 of 2008 of the court of Judicial First Class Magistrate-II, Mavelikkara by
which the learned Magistrate acquitted the accused u/s 255(1) of the Cr. P.C. The case of the complainant is that on 10.5.2008, the accused
borrowed an amount of Rs. 70,000/- from the complainant and towards the discharge of the said liability, the accused has executed and issued a
cheque of which Ext.P1 is its certified copy. According to the complainant, when the said cheque was presented for encashment, the same was
dishonoured for the reasons insufficient fund and Drawers signature differs from specimen recorded. According to the complainant, though the
accused was demanded to pay the amount covered by the cheque by sending a lawyer notice, no payment was made. Therefore, the accused has
committed the offence punishable u/s 138 of the N.I. Act. During the trial of the case, the complainant himself was examined as PW1 and Exts.P1
to P12(a) documents were produced. After considering the entire evidence and materials, the trial court came to a conclusion that the complainant
miserably failed to show that Ext.P7 was executed by the accused. Therefore, the complainant is not entitled to get the benefit of legal
presumption. Consequently, held that the complainant failed to prove that Ext.P7 was issued by the accused for the discharge of a legally
enforceable liability as claimed by the complainant. Thus, the accused is found not guilty and accordingly, she is acquitted u/s 255(1) of the Cr.
P.C. It is the above finding and order of acquittal challenged in this appeal.
I have heard Sri. P. Sreekumar, learned counsel appearing for the appellant and I have perused the judgment sought to be impugned.
The learned counsel for the appellant vehemently submitted that the accused has admitted the signature in Ext.P7 cheque and the evidence of the
complainant shows that it was the accused, who handed over Ext.P7 cheque after its due execution by making appropriate endorsement therein.
But, the learned Magistrate, on erroneous conclusion, went wrong and held that the complainant has not established the execution of the cheque.
Therefore, the counsel submitted that the further probe in the appeal is absolutely necessary and the appellant has succeeded in making out a prima
facie case.
In the light of the above submission of the learned counsel for the appellant and in the light of the findings of the court below in the judgment
sought to be impugned, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of her
challenge against the findings of the court below and further, the appellant has succeeded in making out a case to interfere with the order of
acquittal recorded by the trial court in favour of the accused.
The specific case of the complainant is that towards the discharge of the liability from the accused due to the complainant, the accused executed
and issued Ext.P7 cheque whereas while disputing and denying the case of the complainant, the specific case of the accused is that Ext.P7 cheque
was handed over to the husband of the complainant in blank form, when the accused borrowed a sum of Rs. 12,000/-, from him as a security. The
amount due to the husband of the complainant has already been repaid, but the cheque which was given as a security is not returned, but the same
was misused by the complainant who filed the present case. Suffice to say, to prove the entire transaction and execution of the cheque, there is no
independent evidence other than the interested version of PW1. To prove the transaction, no documentary evidence is also produced. The learned
Magistrate, in paragraph 14 after referring to the deposition of PW1/the complainant, specifically stated that the complainant was not aware
whether the endorsements in Ext.P7 were made by the accused herself. It appears that the learned Magistrate made such an observation, because
of the specific and particular deposition of PW1, that the accused brought a filled up cheque and put the signature in the presence of the
complainant. So, the evidence of PW1 does not positively prove the execution of the cheque in question. According to me, the absence of any
such positive evidence is relevant especially in the light of the particular defence taken by the accused. According to the accused, Ext.P7 cheque in
its blank form was handed over to the husband of the complainant, when she obtained a loan of Rs. 12,000/- from him. It is also relevant to note
that by examining DW1, the accused has made out a case to the effect that the accused borrowed money from several persons and the same were
finally settled by the intervention of DW1 and thus, the amount due to the husband of the complainant was already given. According to me, the
entire evidence and materials and the allegations have to be examined in the above backdrop of the defence and the defence evidence and
materials. There is no positive evidence from the side of the complainant to prove the execution of the cheque and the complainant was not aware
as to who made the endorsement in Ext.P7 cheque. The learned Magistrate has also found that in Ext.P7, against the name portion an English
capital letter ""R"" was written for which there is no explanation from the side of the complainant. In this juncture, it is relevant to note that the
complainant has no case that the accused is illiterate or not capable to fill up the cheque in the presence of the complainant. If that be so, it is for
PW1 to explain as to why she received the filled up cheque brought by the accused. There is no plausible explanation. It is also relevant to note
that as rightly observed by the learned Magistrate, there is no explanation why ""R"" put in Ext.P7 cheque against the name of the payee. According
to me, in the absence of any justifiable explanation regarding the appearance of letter ""R"" in Ext.P1 cheque, the same probabilises the case of the
accused that Ext.P7 originally is given to the husband of the complainant, who is one Rajan Pillai. So, going by the judgment of the trial court, it can
be seen that the learned Magistrate of the trial court has rightly refused to act upon the interested version of PW1, when the loan transaction and
execution of the cheque are not proved by the complainant. Thus, the learned Magistrate assigned justifiable reasons in support of his finding and
the findings are supported by the evidence and materials. Hence, it cannot be said that the finding of the court below is perverse or illegal.
Therefore, even if the present appeal is entertained any further, I find not even a remote scope to interfere with the findings of the court below. As
such, the appellant has miserably failed to make out a prima facie case in support of her challenge against the finding of the court below. In the
recent decision of the Apex Court reported in State of Rajasthan Vs. Darshan Singh @ Darshan Lal, , the Hon''ble Apex Court has held that the
jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The Apex Court has held:-
In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial
court''s acquittal bolsters the presumption of his innocence.
Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in
the decision cited supra, I find no ground to interfere with the order of acquittal recorded by the trial court. Therefore, the appeal fails and
accordingly, the same is dismissed.
In the result, this appeal is dismissed.