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2025 DIGILAW 1470 (KER)

Benny Joseph, S/o. Joseph v. State Of Kerala

2025-05-26

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. 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 1 st 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/1 st 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. 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 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? 8. Points Nos.1 and 2 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. 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 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. 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 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. Therefore, the evidence of PW1 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. 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 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. 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 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.