Appeal by complainant against acquittal of accused under S.138 NI Act. Court held admission of signature insufficient to raise presumption under S.139 due to lack of proved consideration. Appeal dismissed; acquittal upheld.
Criminal appeal dismissed; order of acquittal of the accused affirmed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934
CRL.A.No. 1314 of 2009
[AGAINST THE ORDER/JUDGMENT IN ST.383/2007 of J.M.F.C.-II,THAMARASSERY DATED 11-02-2009]
APPELLANT(S)/COMPLAINANT:
SIVADASAN, S/O.SANKU, AGED 49 YEARS, NADUPARAMBIL VEEDU, KODENCHERY.
BY ADV. SRI.SUNNY MATHEW
RESPONDENTS(S)/ACCUSED AND STATE:
R1 BY ADV. SRI.T.G.RAJENDRAN
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07-02-
2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.A.No. 1314 of 2009
Dated this the 7th day of February, 2013
J U D G M E N T
The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 11.2.2009 in S.T.No.383 of 2007 of the court of Judicial First Class Magistrate-II, Thamarassery by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
50,000/- with a promise to repay the same within one month and when the complainant demanded back the amount, the accused came to his house and issued Ext.P1 cheque dated 15.2.2007 for an amount of 50,000/-, which when presentedfor encashment, dishonoured due to insufficient fund in the account
Crl.A.No.1314 of 2009
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maintained by the accused and the accused has not repaid the amount in spite of statutory notice and therefore, the accused has committed
the offence punishable under Section 138 of the N.I.Act. During the trial from the side of the complainant, he himself was mounted to the box and got examined as PW1 and produced Exts.P1 to P6. From the side of the defence, DW1 was examined and Ext.D1 receipt is produced. After considering the entire evidence and materials, the trial court has concluded and found that the complainant has miserably failed to prove the execution of Ext.P1 cheque by the accused in his favour towards the discharge of a liability. Accordingly, the accused is found not guilty and she is acquitted under Section 255(1) of the Cr.P.C. Against the said finding and order of acquittal, this appeal is filed.
Crl.A.No.1314 of 2009
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that the accused has admitted her signature in Ext.P1 cheque and therefore, the appellant is entitled to get presumption under Section 139 of the N.I.Act, but the learned Magistrate declined that presumption in favour of the complainant. Therefore, the counsel submitted that the finding of the court below is liable to be interfered with and setting aside the impugned order, the accused is liable to be convicted.
40,000/- as a loan from the complainant and according to her, except the sum of 2000/-, she had paid the entire amount. In order to substantiate the above case of the defence, apart from examining DW1, she has produced Ext.D1 as well. To prove the case of the complainant, except the interested version of theCrl.A.No.1314 of 2009
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complainant, there is no other independent or acceptable evidence.
It is true that the accused has admitted the signature in Ext.P1, but that itself is not sufficient to draw presumption under Section 139 of the N.I.Act in favour of the complainant.
v. 7. In the decision reported in M/s.Kumar Exports M/s.Sharma Carpets [2009(1) Supreme 231], it was held that the
presumption under Section 139 is available only if the execution of cheque is either admitted or proved. In the present case, the accused denied the execution and consideration as claimed by the complainant. The specific case of the accused is that out of 40,000/- obtained by her from the complainant as loan, 38,000/has already been paid and the remaining amount to be paid is `2000/-. So, there is no consideration at all connected with Ext.P1 cheque. By examining DW1 and producing Ext.D1 document, according to me, the accused has succeeded in making out a probable case. Ext.D1 is the receipt issued by the complainant and the same
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contains his signature which shows that the complainant has accepted
the amount of `38,000/-. The complainant has no case that he has transaction with the accused other than the present one. Though the complainant has denied his signature which is seen in Ext.D1, the learned Magistrate, after comparing his admitted signature in his vakalath, affidavit, complaint etc., found that the signature seen in Ext.D1 is that of the complainant. So, in the light of the facts and circumstances and the evidence referred to, which is borne out from the judgment impugned, it can be seen that the finding of the court below is supported by the evidence and materials on record and the reasons given are sound one. So, according to me, the appellant has miserably failed to make out a prima facie case in support of his challenge against the finding of the court below and the order of acquittal. For the reason stated earlier, the above finding cannot be treated as perverse or illegal so as to interfere with the order of acquittal in appeal. As the appellant has miserably failed to make out
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a prima facie case in support of his challenge against the impugned
judgment, the appeal fails and the same is accordingly dismissed.
( V.K.MOHANAN ) Judge.
MBS/
3 issues framed by the court
Whether the admission of signature on the cheque alone establishes the case relevant for raising presumption under Section 139 of the Negotiable Instruments Act.
Whether the minority finding of the trial court acquitting the accused is perverse or illegal warranting interference in appeal.
Whether the appellant has made out a prima facie case for reversing the finding against him.
Colour shows how this judgement treated each authority
M/s. Kumar Exports v. M/s. Sharma CarpetsApplied¶38
M/s.Kumar Exports M/s.Sharma Carpets [2009(1) Supreme 231]
4 provisions across 3 enactments
SIVADASAN, S/O.SANKU
K.VASANTHAKUMARI
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
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