{"id":70167,"date":"2009-06-11T00:00:00","date_gmt":"2009-06-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajithkumar-vs-rejinkumar-on-11-june-2009"},"modified":"2016-08-04T04:53:46","modified_gmt":"2016-08-03T23:23:46","slug":"ajithkumar-vs-rejinkumar-on-11-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajithkumar-vs-rejinkumar-on-11-june-2009","title":{"rendered":"Ajithkumar vs Rejinkumar on 11 June, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Kerala High Court<\/div>\n<div class=\"doc_title\">Ajithkumar vs Rejinkumar on 11 June, 2009<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1028 of 2002()\n\n\n1. AJITHKUMAR S\/O. KELUKUTY NAIR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. REJINKUMAR S\/O. ACHUTHAN, AGED 31\/02,\n                       ...       Respondent\n\n2. STATE OF KERALA, REPRESENTED BY THE\n\n                For Petitioner  :SRI.P.S.SREEDHARAN PILLAI\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :11\/06\/2009\n\n O R D E R\n                   S.S. SATHEESACHANDRAN, J.\n               - - - - - - - - - - - - - - - - - - - - - - - - -\n                          Crl.A.No.1028 of 2002\n               - - - - - - - - - - - - - - - - - - - - - - - - -\n                          Dated: 11th June, 2009\n\n                                JUDGMENT\n<\/pre>\n<p>       Complainant is the appellant. His complaint filed under Section<\/p>\n<p>138 of the Negotiable Instruments Act (for short &#8216;the N.I.Act&#8217;) against<\/p>\n<p>the first respondent, after trial, ended in a judgment absolving the<\/p>\n<p>accused of the offence. Questioning the correctness and propriety of<\/p>\n<p>the judgment of acquittal rendered in favour of the accused, he has<\/p>\n<p>filed this appeal.\n<\/p>\n<p>       2. The case of the complainant in brief is thus: Towards<\/p>\n<p>discharge of a liability, the accused issued Ext.P1 cheque for a sum of<\/p>\n<p>Rs.2,50,000\/- promising its encashment on presentation in due<\/p>\n<p>course. The cheque presented, however, was dishonoured with<\/p>\n<p>endorsement &#8220;payment was stopped by drawer&#8221;. Enquiry by the<\/p>\n<p>complainant disclosed that the accused had no sufficient funds in his<\/p>\n<p>account to honour the cheque. Statutory notice issued intimating the<\/p>\n<p>dishonour demanding the sum covered by the instrument to the<\/p>\n<p>accused was responded with a reply raising false contentions.<\/p>\n<p>Complainant, thereupon, launched prosecution against the accused<\/p>\n<p>for the offence under Section 138 of the N.I.Act filing the complaint.<\/p>\n<p>       3. The accused, on appearance, pleaded not guilty when the<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                 &#8211; 2 &#8211;<\/span><\/p>\n<p>particulars of the offence were made known. Complainant examined<\/p>\n<p>himself as P.W.1 and two other witness as P.Ws.2 and 3. He also got<\/p>\n<p>marked Exts.P1 to P12 to prove his case. Accused questioned under<\/p>\n<p>Section 313 Cr.P.C. reiterating his innocence denied of having any<\/p>\n<p>transaction with the complainant. He examined two witnesses as<\/p>\n<p>D.Ws.1 and 2 the former to disprove the case of the complainant that<\/p>\n<p>Ext.P1 cheque was issued towards balance sale price of a motor<\/p>\n<p>vehicle in his favour and the latter to show that there was substantial<\/p>\n<p>difference in the specimen signature in the card maintained in the<\/p>\n<p>bank with that seen in Ext.P1 cheque, the signature of which was<\/p>\n<p>disputed as not having been subscribed by him. The learned<\/p>\n<p>Magistrate, after considering the materials produced, concluded that<\/p>\n<p>the complainant had not proved the due execution of Ext.P1 cheque<\/p>\n<p>by the accused and also that the transaction alleged by him relating<\/p>\n<p>to the instrument was not acceptable. The contention of the accused<\/p>\n<p>that there was variation of his signature in Ext.P1 cheque with the<\/p>\n<p>specimen signatures was found appealing to the court below which<\/p>\n<p>concluded that there is no proof that Ext.P1 was issued by the<\/p>\n<p>accused to the complainant in discharge of a legally existing debt. In<\/p>\n<p>that view of the matter, the accused was found not guilty and he was<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                &#8211; 3 &#8211;<\/span><\/p>\n<p>acquitted of the offence imputed.\n<\/p>\n<p>      4. I heard the learned counsel on both sides. Learned counsel<\/p>\n<p>for the complainant assailed the judgment of acquittal passed in<\/p>\n<p>favour of the accused as unsustainable under law and facts<\/p>\n<p>submitting that the evidence tendered in the case has been<\/p>\n<p>misappreciated by the learned Magistrate and that has resulted in<\/p>\n<p>miscarriage of justice. Ext.P7 agreement relating to the transaction<\/p>\n<p>between the complainant and the accused over the sale of a motor<\/p>\n<p>vehicle in which the issue of Ext.P1 cheque by the accused towards<\/p>\n<p>the balance sum payable on such sale, it is submitted, was duly<\/p>\n<p>proved in the case. But the court below on mere surmise and<\/p>\n<p>conjunctures discarded its evidentiary value. The case of the<\/p>\n<p>complainant regarding the sale transaction of the vehicle and issue of<\/p>\n<p>Ext.P cheque, it is submitted by the learned counsel, was disbelieved<\/p>\n<p>by the court for the reason that no material was produced to show<\/p>\n<p>that he was the registered owner of the vehicle overlooking the<\/p>\n<p>prevailing practice that ownership of motor vehicles often take place<\/p>\n<p>without change of names in R.C.Book, but, on the basis of sale letter<\/p>\n<p>and other documents. The case set up by the accused as to missing<\/p>\n<p>of his cheque book in the hotel of his father and the dispute regarding<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                &#8211; 4 &#8211;<\/span><\/p>\n<p>the signature in Ext.P1 cheque remained unsubstantiated by any<\/p>\n<p>convincing legal evidence, but, still the court below has accepted that<\/p>\n<p>defence, submits the counsel. Further opportunity sought by the<\/p>\n<p>plaintiff to examine the witness who had subscribed in Ext.P7<\/p>\n<p>agreement to prove the sale transaction of the vehicle and issue of<\/p>\n<p>Ext.P1 cheque was declined by the learned Magistrate and it had<\/p>\n<p>resulted in denial of opportunity to the complainant in proving his<\/p>\n<p>case, is the further grievance of the complainant. On the other hand,<\/p>\n<p>the learned counsel for the accused contended that the judgment of<\/p>\n<p>acquittal passed by the court below does not suffer from any infirmity<\/p>\n<p>and requires only to be confirmed. When an enquiry on the complaint<\/p>\n<p>was proceeded by the Magistrate under Section 200 Cr.P.C. the<\/p>\n<p>complainant had stated that Ext.P1 cheque was issued towards<\/p>\n<p>discharge of a loan availed by the accused, but, later in evidence a<\/p>\n<p>contradictory version of the transaction was presented that the<\/p>\n<p>instrument was given towards the balance sale price over a motor<\/p>\n<p>vehicle sold to the accused producing Ext.P7 agreement. Accused had<\/p>\n<p>denied the execution of Ext.P7 agreement and also the sale<\/p>\n<p>transaction of the vehicle and no convincing evidence was adduced by<\/p>\n<p>the complainant to prove his case over the transaction canvassed. In<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                 &#8211; 5 &#8211;<\/span><\/p>\n<p>such circumstances, the acquittal of the accused passed by the court<\/p>\n<p>below is proper, correct and valid and the appeal is devoid of any<\/p>\n<p>merit, submits the learned counsel.\n<\/p>\n<p>      5.   I have considered the submissions of the counsel with<\/p>\n<p>reference to the materials produced in the case. The most significant<\/p>\n<p>question emerging for consideration is whether the complainant has<\/p>\n<p>proved due execution of Ext.P1 cheque and also         the transaction<\/p>\n<p>relating to the issue of that cheque, both of which were disputed by<\/p>\n<p>him contending that the cheque book covering Ext.P1 cheque leaf was<\/p>\n<p>missing from the hotel of his father where it was kept by him and also<\/p>\n<p>that he had no transaction whatsoever with the complainant at any<\/p>\n<p>point of time. Complainant examined as P.W.1 gave evidence that<\/p>\n<p>Ext.P1 cheque was issued by the accused towards the balance sale<\/p>\n<p>consideration over the sale of his vehicle, a tempo challenger jeep to<\/p>\n<p>the accused. He produced Ext.P7 agreement to substantiate the sale<\/p>\n<p>transaction of the vehicle wherein the issue of Ext.P1 cheque towards<\/p>\n<p>the balance sale consideration due has been specifically made<\/p>\n<p>mention of. He was not the registered owner of the vehicle covered<\/p>\n<p>by Ext.P7 agreement, but some one else and no witness was<\/p>\n<p>examined to prove the sale transaction and issue of Ext.P1 cheque by<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                &#8211; 6 &#8211;<\/span><\/p>\n<p>the accused persuaded the learned Magistrate to hold that the<\/p>\n<p>evidence of the complainant is insufficient to prove his case that<\/p>\n<p>Ext.P1 cheque was duly executed and issued by the cheque towards<\/p>\n<p>discharge of a debt or liability to him. I am afraid that the learned<\/p>\n<p>Magistrate failed to take note of some material circumstances borne<\/p>\n<p>out by the records produced in the case which prima facie<\/p>\n<p>demonstrated that the defence canvassed by the accused was<\/p>\n<p>unworthy of any credence. The accused has issued a stop payment<\/p>\n<p>order to the bank before the presentation of Ext.P1 cheque. Other<\/p>\n<p>than a plea raised that the whole cheque book covering 10 cheque<\/p>\n<p>leaves was missing from the hotel of his father he has not produced<\/p>\n<p>a scrap of paper to show what was the instruction given to the bank<\/p>\n<p>to stop payment of the cheque or cheques presented as drawn by<\/p>\n<p>him. I have adverted to the above aspect taking note of the specific<\/p>\n<p>assertion of the accused in Ext.P6 reply notice sent in response to the<\/p>\n<p>statutory notice issued by the complainant on dishonour of Ext.P1<\/p>\n<p>cheque. He had stated in the reply notice that his cheque book<\/p>\n<p>containing 10 leaves, bearing Nos.05391 to 05400, with all the leaves<\/p>\n<p>in blank and none signed by him, was missing from the hotel of his<\/p>\n<p>father and it came to his notice in January, 1998, and then he<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                 &#8211; 7 &#8211;<\/span><\/p>\n<p>informed the bank for stop payment of the cheque leaves. Is there<\/p>\n<p>any truth in that defence has to be examined with reference to<\/p>\n<p>Ext.P10, the certified statement of accounts relating to his account<\/p>\n<p>maintained in the bank. Ext.P10 would disclose that one among the<\/p>\n<p>cheque, cheque No.05392 covered by his cheque book which was<\/p>\n<p>stated to have been missing was transacted for a sum of Rs.250\/- as<\/p>\n<p>early as on 5.2.1996. So, one among the cheque leaves covered by<\/p>\n<p>the book was transacted through his account is a material<\/p>\n<p>circumstance discrediting the defence canvassed by him that the<\/p>\n<p>cheque book containing all 10 cheque leaves kept in blank form and<\/p>\n<p>none signed by him was missing. That also indicates that he could not<\/p>\n<p>have issued a stop payment order to the bank for stoppage of all the<\/p>\n<p>10 cheque leaves in the book, as contended by him when one of<\/p>\n<p>them had already been transacted.\n<\/p>\n<p>      6. I do note that the falsity of the defence canvassed by the<\/p>\n<p>accused by itself is not sufficient to improve the case of the<\/p>\n<p>complainant. But, in examining the merits of the case advanced by<\/p>\n<p>the complainant and in appreciating his sworn testimony before the<\/p>\n<p>court which has withstood the cross examination of the accused, the<\/p>\n<p>falsity of the defence set up by the accused definitely has to be taken<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                 &#8211; 8 &#8211;<\/span><\/p>\n<p>into consideration in forming a conclusion whether the case of the<\/p>\n<p>complainant deserve acceptance. It is too much to believe after<\/p>\n<p>examining Ext.P7 agreement that it was fabricated by the accused to<\/p>\n<p>sustain his case. Ext.P7 agreement shows that the stamp papers for<\/p>\n<p>executing that agreement was purchased in the name of the accused<\/p>\n<p>as early as on 21.8.1997. Specific mention of Ext.P1 cheque with the<\/p>\n<p>number and sum is stated in Ext.P7 agreement which according to<\/p>\n<p>the complainant was entered into on the sale transaction of his<\/p>\n<p>vehicle, a challenger tracks jeep, bearing registration No.KL-12\/2627<\/p>\n<p>with the accused for a sum of Rs.3,10,000\/-. On the date of the<\/p>\n<p>transaction, the agreement would show a sum of Rs.60,000\/- was<\/p>\n<p>paid and the rest agreed to be paid on or before 8th January, 1998 for<\/p>\n<p>which Ext.P1 cheque was executed by the accused and handed over<\/p>\n<p>to the complainant. In this connection, it is to be noted Ext.P1 cheque<\/p>\n<p>is dated 8.1.1998. Handing over of the registration certificate, sale<\/p>\n<p>letter, insurance tax token etc. to the accused on the sale transaction<\/p>\n<p>of the vehicle is also made mention of in Ext.P7 agreement. As rightly<\/p>\n<p>contended by the learned counsel for the complainant, the common<\/p>\n<p>prevailing practice in respect of sale transactions over vehicles is by<\/p>\n<p>way of handing over the sale letter, registration certificate, insurance<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                  &#8211; 9 &#8211;<\/span><\/p>\n<p>tax token etc. for which the vendor need not be the registered owner<\/p>\n<p>shown in the registration certificate of the vehicle. Complainant was<\/p>\n<p>not the registered owner of the vehicle as recorded in the registration<\/p>\n<p>certificate of the vehicle is of no consequence because sale of motor<\/p>\n<p>vehicles is often carried out on the basis of possessory title handing<\/p>\n<p>over the connected documents. I find no reason whatsoever to<\/p>\n<p>discard the evidentiary value of Ext.P7 agreement which has been<\/p>\n<p>proved by the complainant, one of the parties involved in the<\/p>\n<p>transaction covered by that agreement. He has not examined any<\/p>\n<p>witness to prove the transaction and also the execution of the<\/p>\n<p>agreement by the accused has no value especially where the accused<\/p>\n<p>has not taken any step for forensic examination of the signatures<\/p>\n<p>which are disputed contending that they were not subscribed by<\/p>\n<p>him.`<\/p>\n<p>       7. The learned Magistrate has compared the signatures of the<\/p>\n<p>drawer in Ext.P1 with the admitted signatures of the accused in some<\/p>\n<p>documents, Ext.P5 acknowledgement card and Ext.D3 specimen<\/p>\n<p>signature card of the accused produced by D.W.2,           which was<\/p>\n<p>maintained by the bank wherein the account relating to Ext.P1 was<\/p>\n<p>operated. In the impugned judgment, reference is also made that<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                &#8211; 10 &#8211;<\/span><\/p>\n<p>comparison was made with another document exhibited as Ext.D5,<\/p>\n<p>presumably it must be a mistake as Exts.D1 to D3 alone were<\/p>\n<p>exhibited by the accused. Strangely enough, no comparison was<\/p>\n<p>made by the learned Magistrate of the signature appearing in Ext.P1<\/p>\n<p>with the signatures of the accused seen in Ext.P7 agreement.<\/p>\n<p>Signature of the accused in Ext.P5 acknowledgement card and his<\/p>\n<p>vakkalath for comparison with the signature in Ext.P1 by the learned<\/p>\n<p>Magistrate    to determine whether Ext.P1 had been signed by the<\/p>\n<p>accused, no doubt, was a futile exercise. No relevance could have<\/p>\n<p>been    given   to  the   signature   of   the  accused   in   Ext.P5<\/p>\n<p>acknowledgement card and vakkalath which have got only self<\/p>\n<p>serving value and, further, those signatures were subscribed by the<\/p>\n<p>accused after the dishonour of Ext.P1 cheque. Strangely enough, the<\/p>\n<p>learned Magistrate has also taken the statement of P.W.1 in his<\/p>\n<p>evidence that there is difference in the signature of Ext.P1 and P5<\/p>\n<p>acknowledgement card of the accused as a circumstance justifying his<\/p>\n<p>conclusion that the signature in Ext.P1 cheque differed from the<\/p>\n<p>signatures of the accused in other documents. The accused who<\/p>\n<p>disputed his signature in Ext.P1 has not taken any step to<\/p>\n<p>substantiate his plea of not signing that instrument was lost sight of<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                &#8211; 11 &#8211;<\/span><\/p>\n<p>by the learned Magistrate when he proceeded to compare the<\/p>\n<p>signature appearing in Ext.P1 with the signatures of the accused in<\/p>\n<p>some documents of which other than Ext.D3 specimen card could<\/p>\n<p>have been given any value for the purpose of comparison. I fail to<\/p>\n<p>understand why the learned Magistrate has not verified the signature<\/p>\n<p>in Ext.P1 with Ext.P7 agreement, the stamp papers which had been<\/p>\n<p>purchased in the name of the accused nearly four months prior to the<\/p>\n<p>presentation of Ext.P1 cheque before the bank. No burden was cast<\/p>\n<p>upon the complainant to prove that the signature appearing in Ext.P1<\/p>\n<p>was that of the accused as it was for the accused to establish his<\/p>\n<p>defence that the instrument    admittedly    covered by the account<\/p>\n<p>maintained by him was not signed by him. To sustain his case that<\/p>\n<p>the instrument was forged and his signature was fraudulently<\/p>\n<p>subscribed by someone else in Ext.P1 instrument as contended by the<\/p>\n<p>accused, he should establish it by taking steps for sending the<\/p>\n<p>document for forensic examination with such other documents<\/p>\n<p>containing his signatures subscribed at an anterior point of time<\/p>\n<p>earlier to Ext.P1. No such step was taken by the accused other than<\/p>\n<p>causing the production of Ext.D3 specimen signature card relating to<\/p>\n<p>his account which is hardly sufficient to show that Ext.P1 instrument<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                &#8211; 12 &#8211;<\/span><\/p>\n<p>was not signed by him. He has not even made any attempt to<\/p>\n<p>substantiate his defence over the denial of his signature in Ext.P1<\/p>\n<p>cheque. Opinion given by D.W.2, the Secretary of the Bank that the<\/p>\n<p>signature in Ext.P1 differed from the signatures of the accused in<\/p>\n<p>Ext.D3 specimen card, which, of course, the learned Magistrate has<\/p>\n<p>not taken into account, is unworthy of any value.\n<\/p>\n<p>      8. The accused has examined a witness as D.W.1 and through<\/p>\n<p>him got marked photo copy of the R.C.Book of the vehicle KL-<\/p>\n<p>12\/2627 covered by Ext.P7 agreement. The attempt of the accused,<\/p>\n<p>it appears, was to show that at the time of Ext.P7 agreement one<\/p>\n<p>K.A.Mohammed was the registered owner of the vehicle for which he<\/p>\n<p>relied on the endorsement in the R.C.Book separately marked as<\/p>\n<p>Ext.D2(a). Whatever be the attempt of the accused to show that the<\/p>\n<p>complainant     was not the registered owner and as such he was<\/p>\n<p>incapable of effecting of a transfer of the vehicle and so much so,<\/p>\n<p>authenticity of Ext.P7 should be doubted is shown to be bereft of any<\/p>\n<p>value by the evidence of D.W.1. The witness asserted that he is the<\/p>\n<p>owner in possession of the vehicle though ownership of the vehicle is<\/p>\n<p>shown in the name of another person. He would also state that the<\/p>\n<p>usual practice of sale transaction of the vehicle is done by handing<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                 &#8211; 13 &#8211;<\/span><\/p>\n<p>over the agreement and a signed sale paper and not necessarily by<\/p>\n<p>change of ownership in the registration certificate of the vehicle. The<\/p>\n<p>witness would further state that the R.C. ownership is different from<\/p>\n<p>ownership of the vehicle with possession. When the sale paper given<\/p>\n<p>by the previous owner is duly filled up and presented<\/p>\n<p>at the R.T.O.Office, necessary changes are made in the R.C.Book<\/p>\n<p>regarding ownership, but, even before, on the basis of the sale<\/p>\n<p>document and other documents regarding the possession of the<\/p>\n<p>vehicle, ownership can be legally claimed over the vehicle. The<\/p>\n<p>defence of the accused is seen shattered by the evidence of his own<\/p>\n<p>witness D.W.1. Needless to point out that ownership recorded in<\/p>\n<p>registration certificate is not the sole criteria for having ownership<\/p>\n<p>over a vehicle which can be claimed on the basis of possession over<\/p>\n<p>the vehicle     with relevant documents. A close scrutiny of the<\/p>\n<p>materials produced in the case would show that other than putting<\/p>\n<p>forth some suggestive questions when the complainant was examined<\/p>\n<p>as P.W.1 disputing the signature in Ext.P1 and also the sale<\/p>\n<p>transaction over the vehicle and impeaching the validity of Ext.P7<\/p>\n<p>agreement contending that it is a forged document, the accused has<\/p>\n<p>not placed any material worthmentioning to discredit the evidence of<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                &#8211; 14 &#8211;<\/span><\/p>\n<p>the complainant. The evidence of his witnesses D.Ws.1 and 2, that of<\/p>\n<p>the former is totally destructive of his defence and the latter, the<\/p>\n<p>Secretary of the Bank, has innocuous value as his opinion regarding<\/p>\n<p>the difference in the signature in Ext.P1 cheque with those in the<\/p>\n<p>specimen card (Ext.D3) deserve to be noticed only for its rejection as<\/p>\n<p>he has no expertise to express such opinion.\n<\/p>\n<p>       9. The complainant had stated during the enquiry under Section<\/p>\n<p>200 Cr.P.C. on presentation of his complaint that Ext.P1 cheque had<\/p>\n<p>been issued towards discharge of debt in a loan transaction which<\/p>\n<p>was highlighted by the learned counsel for the accused to contend<\/p>\n<p>that a contradictory version was presented by him at the time of trial,<\/p>\n<p>in the given facts of the case and materials tendered, has no<\/p>\n<p>significance. He was answering the questions put by the Magistrate<\/p>\n<p>during the enquiry under Section 200 Cr.P.C. has to be taken note of<\/p>\n<p>in appreciating the submissions made at that point of time with his<\/p>\n<p>sworn testimony when examined before the court in the trial of the<\/p>\n<p>case. Statement made by the complainant that Ext.P1 cheque was<\/p>\n<p>issued in respect of discharge of a debt utmost has to be treated as a<\/p>\n<p>mistake not affecting the merit of his case when he has produced<\/p>\n<p>cogent and convincing evidence that the cheque was issued by the<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02                 &#8211; 15 &#8211;<\/span><\/p>\n<p>accused in discharge of a liability arising from a sale transaction of a<\/p>\n<p>motor vehicle. Sworn testimony of the accused supported by the<\/p>\n<p>materials    produced,   especially,    Ext.P7   agreement    deserved<\/p>\n<p>acceptance in the proved facts and circumstances of the case. The<\/p>\n<p>learned Magistrate went wrong in holding that the complainant has<\/p>\n<p>not proved due execution of the cheque by the accused and that<\/p>\n<p>conclusion formed on the basis of comparison of the signature in<\/p>\n<p>Ext.P1 with Ext.P5 acknowledgement card and vakkalath and Ext.D3<\/p>\n<p>specimen card of the accused and finding fault with the complainant<\/p>\n<p>for not proving the sale transaction of the vehicle despite production<\/p>\n<p>of Ext.P7 agreement is patently erroneous and unsustainable under<\/p>\n<p>law and facts. I find, the complainant has established his case with<\/p>\n<p>cogent and convincing legal evidence and the defence canvassed by<\/p>\n<p>the accused disputing his signature in Ext.P1 cheque and also liability<\/p>\n<p>under the sale transaction covered by Ext.P7 agreement in respect of<\/p>\n<p>which Ext.P1 was issued, is totally false. So much so, in reversal of<\/p>\n<p>the order of acquittal rendered in favour of the accused, he is found<\/p>\n<p>guilty and convicted of the offence under Section 138 of the N.I.Act.<\/p>\n<p>      7. Having regard to the nature of the offence, falling under<\/p>\n<p>Section 138 of the N.I.Act, I am of the view that incarceration of the<\/p>\n<p><span class=\"hidden_text\">Crl.A.No.1028\/02               &#8211; 16 &#8211;<\/span><\/p>\n<p>accused in prison for a term is not called for to advance the ends of<\/p>\n<p>justice. Accused is sentenced to undergo imprisonment till the rising<\/p>\n<p>of the court, and to pay a sum of Rs.2,50,000\/- as compensation<\/p>\n<p>under Section 357(3) of the Cr.P.C. to the complainant within three<\/p>\n<p>months from the date of this judgment. In default of payment of<\/p>\n<p>compensation as directed, the accused shall undergo simple<\/p>\n<p>imprisonment for four months. The accused shall appear and his<\/p>\n<p>sureties shall produce him before the Judicial Magistrate of First<\/p>\n<p>Class-I, S.Bathery on 15th September, 2009, and the learned<\/p>\n<p>Magistrate shall execute the sentence as directed.<\/p>\n<p>      Appeal is allowed as above.\n<\/p>\n<\/p>\n<pre>srd                          S.S. SATHEESACHANDRAN, JUDGE\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Kerala High Court Ajithkumar vs Rejinkumar on 11 June, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 1028 of 2002() 1. AJITHKUMAR S\/O. KELUKUTY NAIR, &#8230; Petitioner Vs 1. REJINKUMAR S\/O. ACHUTHAN, AGED 31\/02, &#8230; Respondent 2. STATE OF KERALA, REPRESENTED BY THE For Petitioner :SRI.P.S.SREEDHARAN PILLAI For Respondent :PUBLIC PROSECUTOR The Hon&#8217;ble [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-70167","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Ajithkumar vs Rejinkumar on 11 June, 2009 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajithkumar-vs-rejinkumar-on-11-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajithkumar vs Rejinkumar on 11 June, 2009 - Free Judgements of Supreme Court &amp; 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