Dismissed

Ajaykumar @ Ajaykumar Nair v. Baburajan &Another

Kerala HC8 Feb 2013Crl.L.P./38/2013

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed this criminal leave petition challenging an acquittal in a cheque bounce case. The court upheld the trial court’s finding that the complainant failed to satisfactorily prove the execution of the cheque, noting inconsistencies in testimony regarding the ink used. Consequently, the special leave to appeal was denied.

What did the court decide?

Leave to appeal and the petition were dismissed; the order of acquittal was upheld.

Ajaykumar @ Ajaykumar Nair Vs Baburajan &Another — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934

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Crl.L.P..No. 38 of 2013 ( )

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CC.40/2010 of J.M.F.C.-II,ALAPPUZHA DATED 05-05-2011

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PETITIONER/COMPLAINANT(S):

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AJAYKUMAR @ AJAYKUMAR NAIR, AGED 42 YEARS, S/O.RAJAPPAN NAIR, AJAY NIVAS, PAZHAVEEDU P.O., ALAPPUZHA.

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BY ADVS.SRI.P.KRISHNA KUMAR (ALAPPUZHA)

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SRI.SUNIL J.CHAKKALACKAL

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RESPONDENT(S)/ACCUSED:

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1.BABURAJAN, S/O. KRISHNAN CHETTIAR, LEKSHMI NIVAS, PAZHAVEEDU P.O., ALAPPUZHA, PIN-688 009.

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2.THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. PUBLIC PROSECUTOR ADV.SMT.V.H.JASMINE

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 08-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.L.P.No.38 of 2013

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Dated this the 8^th day of February, 2013.

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O R D E R

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The complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 5.5.2011 in C.C.No.40 of 2010 of the court of the Judicial First Class Magistrate-II, Alappuzha, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.

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The case of the complainant is that, towards the discharge of the debt of `1,35,000/-, the accused issued Ext.P1 cheque, which when presented for encashment, returned unpaid as the “account closed” and the accused has not repaid the amount in spite of a statutory notice served on him for repayment of the amount due to the

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Crl.L.P.No.38 of 2013

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complainant and therefore the accused has committed the offence punishable under section 138 of the N.I. Act.

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During the trial of the case, Pws.1 to 3 were examined and produced Exts.P1 to P5 documents. No evidence either oral or documentary adduced from the side of the defence. The trial court, after having considered the entire evidence and materials and the circumstances involved in the case, came into a conclusion that the execution of Ext.P1 cheque in the present form is under serious doubt and the prosecution has failed to prove the execution of the same, and also held that in the absence of proof regarding the execution, no presumption can be drawn in favour of the complainant and thus concluded that it is not safe to conclude that the accused issued Ext.P1 cheque to the complainant in discharge of the debt of `1,35,000/-. Consequent to the above finding, the accused was acquitted under section 255(1) of Cr.P.C. The above finding and order of acquittal sought to be challenged, for

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Crl.L.P.No.38 of 2013

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which leave of this Court is sought for.

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I have heard Adv.Sri.Sunil J.Chakkalackal, learned counsel for the petitioner and I have perused the judgment sought to be impugned.

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Learned counsel, after read out to me the deposition of PW1, has submitted that the trial court by an improper appreciation of evidence, went wrong in holding that the complainant has failed to prove the execution of cheque. It is also the submission of the learned counsel that the evidence of Pws.1 to 3 positively proves the transaction and the execution of the cheque. The difference in the ink with respect to the entries in Ext.P1 cheque is not relevant when the evidence of the complainant-PW1, positively proves that the same was filled up and brought by the accused. Therefore, the counsel submits that the findings of the court below are per se illegal and are liable to be interfered with, and consequently the order of acquittal is liable to be reversed.

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I am unable to sustain the above contention. The case advanced by the defence is denial of having any money transaction with the complainant. According to the defence, the complainant forged Ext.P1 cheque and filed the present case, and he has also denied the entries in the cheque as not of his. According to the accused, he had never seen the complainant. The learned Magistrate proceeded to decide the case, in the above backdrops of the case of the complainant and the defence. On the basis of the rival contentions and on the basis of the available evidence, the trial court formulated four points for its consideration, among which, the first point is whether the accused issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt. In paragraph 9 of the judgment, the learned Magistrate considered the first question and found that as the accused has disputed and denied the execution of the cheque, the burden is upon the complainant to prove the fact beyond reasonable doubt.

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Crl.L.P.No.38 of 2013

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During the cross examination of PW1, he had deposed that the accused and one of his cousins came together at his residence and issued Ext.P1 cheque. Whereas, in the complaint, absolutely there is no whisper regarding the transaction in spite of a mere statement to the effect that the accused executed and issued the cheque. In the proof affidavit also, PW1 has also no case about the origin of the transaction etc. But during the examination of complainant as PW1, his case is that the accused and one of his cousins came together at his residence and issued Ext.P1 cheque. To corroborate the above version of PW1, PW3 was also examined. The learned Magistrate has considered the version of PW3. According to PW3, he went to the residence of PW1 to get the gas cylinder, since his gas cylinder was got empty. According to PW3, he witnessed the transaction between PW1 and the accused, and according to PW3, the accused has signed the cheque and handed over to PW1. But he does not know the contents of

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Crl.L.P.No.38 of 2013

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Ext.P1 cheque. But according to PW1, the cousin who accompanied the accused signed the cheque using the same pen but later he stated that he was not certain about those facts and he deposed that the cheque which was handed over to him by the accused may be of blue colour and that the ink used for writing the entries as well as the signature may be of two colours. The learned Magistrate has found that, PW1 firstly deposed that the pen used for making entries as well as putting signature is the same one but later he changed his version that the entries and signature may be with the ink having two colours. The learned Magistrate has also held that, it is very strange to note that how the same pen can have two inks of having different colours. The learned Magistrate has physically verified Ext.P1 cheque and found that the signature in the cheque was made with a pen having liquid ink but the entries including the name of the payee and amount are written with ball point pen. The colour of the inks are also

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different. The signature is made with ink having light blue colour. Consequently, the learned Magistrate found that the testimony of PW1 that the signature and the entries in Ext.P1 cheque are made with the same pen is not true. The learned Magistrate has also found that the accused is not an illiterate person or any handicap to write and in the above circumstances, according to the learned Magistrate, PW1 has not pressed the accused to make the entries in Ext.P1 cheque in his own handwriting and the said circumstance is not explained properly. So, regarding the execution of cheque, from the above facts and evidence it can be seen that there is no positive and reliable evidence. As I indicated earlier, neither in the complaint nor in the proof affidavit, the complainant has got a case that the entries in the cheque are made by two persons. It appears to me that, such a twisted version of the complainant, during the cross examination was given only to get over the adverse situation of difference in the ink and hand writing, and the

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difference in pen for filling up the cheques. So regarding the execution of the cheque, absolutely there is no satisfactory and reliable evidence. It is well settled that, the presumption under section 139 of the NI Act can be pressed into service by the holder of the cheque or the complainant only if the complainant has succeeded in proving the execution of the cheque by the accused or else, when the execution is admitted by the accused. In the present case, the accused did not admit the execution. Regarding the execution of the cheque, the evidence of the complainant is in the nature which I indicated earlier. Therefore, I find no reason to interfere with the findings of the court below with respect to the execution of the cheque against the complainant.

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From the above discussion and the evidence and materials referred to above it can be seen that the findings of the court below are supported by the evidence and materials on record and therefore it cannot be said that the

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same are perverse or illegal. If that be so, even if an appeal is entertained, there is little scope to interfere with the above findings of the court below and the order of acquittal.

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Therefore, there is no merit in this petition and accordingly the same is dismissed.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Ajaykumar @ Ajaykumar Nair v. Baburajan &Another

Case brief

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Ajaykumar @ Ajaykumar Nair v. Baburajan &Another

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