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2012 DIGILAW 891 (KER)

Manmada Kumar v. State of Kerala

2012-09-25

V.K.MOHANAN

body2012
JUDGMENT : V.K. Mohanan, J. The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’) is the appellant since he is aggrieved by the judgment dated 04/09/2008 in ST No. 2588 of 2005 of the Court of the Judicial First Class Magistrate-V, Neyyattinkara by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that the accused had owed Rs. 6 lakhs to the complainant and towards repaying that amount, the accused issued Ext. P1 cheque to the complainant and when the same was presented for encashment, dishonoured due to insufficient fund in the account of the accused and the accused has not repaid the amount in spite of the statutory notice served on him and thus, according to the appellant, the accused has committed the offence punishable under Section 138 of the NI Act. From the side of the complainant, PWs 1 to 3 were examined and Exts. P1 to P7 were marked. From the side of the defence, DW 1 was examined and Ext. D1 was marked. The Trial Court, after considering the entire evidence and materials, came into a conclusion that the complainant has miserably failed to prove the transaction averred in the complaint and hence, the accused is entitled to get acquittal. Accordingly, the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. Learned counsel for the appellant vehemently submitted that the finding of the Court below is incorrect and illegal, especially when Sections 118(a) and 139 of the NI Act are available to draw presumption in favour of the complainant. The learned Magistrate, according to the counsel, failed to extend the benefit under the above provisions in favour of the complainant, especially when Ext. P1 cheque contained the signature of the accused. It is also the contention of the learned counsel that PW1 is the Power of Attorney Holder of the complainant and he had discharged his role as a Power of Attorney and not that of the complainant. But, the teamed Magistrate arrived into an erroneous conclusion and found against the complainant. P1 cheque contained the signature of the accused. It is also the contention of the learned counsel that PW1 is the Power of Attorney Holder of the complainant and he had discharged his role as a Power of Attorney and not that of the complainant. But, the teamed Magistrate arrived into an erroneous conclusion and found against the complainant. On the strength of the decision reported in Johnson Scaria v. State of Kerala and Another, 2006 KHC 1592 : 2006 (3) KLJ 561 : 2006 (4) KLT 290 , it is the submission of the learned counsel that the below ought to have considered that the law does not mandate proof of original transaction or existence of original consideration. Therefore, according to the learned counsel, the findings of the Court below are illegal and erroneous. According to the counsel, on the basis of the available evidence and materials, after reversing the order of acquittal recorded by the Trial Court, the respondent/accused is liable to be convicted and punished. 4. I have carefully considered the submission made by learned counsel for the appellant and I have gone through the judgment of the Trial Court carefully. 5. In the light of the contention raised by the counsel for the appellant and in view of the findings of the Court below, based upon the evidence and materials referred to in the impugned judgment, the question to be considered is whether the Trial Court is justified in its findings that complainant failed to prove the transaction as claimed in the complaint and further, whether the appellant has succeeded in making out a case so as to interfere with the order of acquittal recorded in favour of the respondent. 6. Admittedly, the complainant did not mount to the box during the trial of the case and no evidence is adduced with respect to the facts and circumstances stated in the complaint and in support of his allegation against the accused. PW 1, who was examined on behalf of the complainant, is the Power of Attorney Holder of the complainant. PW1, being the Power of Attorney Holder of the complainant, can adduce evidence for and on behalf of the complainant with respect to the facts and circumstances that are within the knowledge of the Power of Attorney Holder. PW 1, who was examined on behalf of the complainant, is the Power of Attorney Holder of the complainant. PW1, being the Power of Attorney Holder of the complainant, can adduce evidence for and on behalf of the complainant with respect to the facts and circumstances that are within the knowledge of the Power of Attorney Holder. In the present case, as seen from paragraph 11 of the impugned judgment, the learned Magistrate has specifically found on the basis of the deposition of PW 1 during his cross-examination that PW 1 was not present both at the time of alleged borrowal of money and issuance of cheque by the accused. It is also discernible from the said paragraph that according to PW 1, all what he deposed before the Court is on the basis of hearsay since the complainant told him about the transaction. Therefore, the evidence of PW 1/the Power of Attorney Holder of the complainant is in no way helpful for the complainant to substantiate his allegation against the accused. The learned Magistrate has also found in paragraph 12 that the evidence of PW 2, who is the brother-in-law of the complainant, is also not sufficient to prove the transaction because of the inherent defect and infirmities in the evidence of PW 2, who specifically deposed during cross-examination that he did not know the date on which the money transaction has taken place. PW3 has also admitted that he did not witness the transaction of Rs. 6 lakhs involved in the case even though the complainant was not prepared to adduce evidence by himself examining his evidence. In the absence of direct knowledge of PW 1/the Power of Attorney Holder, the complainant ought to have stepped into, the box and adduced evidence. That was not done. The evidence of PWs 2 and 3 purportedly is for the corroboration of evidence of the complainant, but in the present case, the complainant was not examined and the person, who was examined on behalf of the complainant viz., PW 1, who is the Power of Attorney Holder of the complainant, has no direct knowledge regarding the transaction. In the above circumstances, according to me, the learned Magistrate is fully correct in his finding that the complainant failed to prove transaction claimed in the complaint. The reasoning assigned by the learned Magistrate is supported by the evidence and materials on record. In the above circumstances, according to me, the learned Magistrate is fully correct in his finding that the complainant failed to prove transaction claimed in the complaint. The reasoning assigned by the learned Magistrate is supported by the evidence and materials on record. Therefore, the judgment sought to be impugned cannot be treated as a perverse one. 7. In a recent decision of the Apex Court reported in State of Rajasthan v. Darshan Singh @ Darshan Lal, 2012 KHC 4316 : 2012 (4) Supreme 72 : 2012 (2) KLT SN 120 : 2012 (5) SCC 789 : AIR 2012 SC 1973 : 2012 CriLJ 2908, the Hon'ble Apex Court has held as follows: "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, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question. Therefore, I find no ground to allow the appeal, especially when the petitioner miserably failed make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the Trial Court. In the result, this Criminal Appeal is dismissed.