TMI Blog2021 (4) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... by the first respondent in the manner alleged by the appellant. The learned Magistrate was not expected or justified in drawing a presumption in favour of the appellant so as to convict the first respondent. If only the appellant/complainant has discharged his initial burden, the first respondent is expected to rebut the presumption - thus, the appellant has not put up a genuine, convincing case; the learned Magistrate cannot be found fault with for acquitting the first respondent, in spite of the fact that appreciation of evidence is not up to the expectation. Whatever it may be, overwhelming reasons are not made out to interfere with the judgment of acquittal passed by the learned Magistrate, under Section 378(4) of the Cr.P.C. Appeal dismissed. - Crl. A. No. 1534 of 2011 - - - Dated:- 8-4-2021 - THE HONOURABLE MR. JUSTICE K.HARIPAL For the Appellant : P. B. Sahasranaman , T. S. Harikumar and K. Jagadeesh , Advs For the Respondents : A. R. Dileep , George Vargheseperumpallikuttiyil , Advs. , M. S. Breez , Public Prosecutor and Nava Varghese , Adv JUDGMENT This is an appeal preferred under Section 378(3) and (4) of the Criminal Procedure Code, hereinaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Sudeesh Kumar of Vazhuvadi, in consideration of some other transaction. In the said agreement, her son was not an attestor. She had put only one signature on the stamp paper. The other signatures were not put by her. All the documents were subsequently fabricated for the purpose of this case at the instance of the said Sudeesh Kumar. The appellant is the agent of the said Sudeesh Kumar. Thereafter, the accused/first respondent gave evidence as DW1 and Ext. D1 is marked on her side. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found the first respondent/accused not guilty of the offence punishable under Section 138 of the Act and acquitted her under Section 255(1) of the Cr.P.C. Challenging that judgment, the appellant initially moved an application for leave before this Court and after obtaining leave, preferred this appeal. 4. I heard the learned counsel for the appellant and also the learned counsel for the first respondent. According to the learned counsel for the appellant, by the oral testimony of PWs 1 to 3 and Ext. P1 cheque and Ext. P7 agreement, the appellant could prove that there was a transaction in which the first respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izers and Chemicals [2007 (4) KLT 977 (SC)]. In reply, the learned counsel for the appellant said that the cheque amount has been specifically demanded in the Ext. P4 notice and the learned Magistrate did not appreciate the contentions of the parties in proper perspective and therefore, the judgment warrants interference in appeal and he prayed for convicting the first respondent under Section 138 of the Act. He also prayed for granting appropriate amount as compensation to the appellant. 7. The appellant/complainant was examined as PW1; PW2 is the scribe of Ext. P7 document. He said that the agreement was executed on the stamp paper produced by the first respondent at the time of passing ₹ 70,000/-. It was done at the residence of the appellant. He also deposed the presence of the witness and also the son of the first respondent. PW3 is the attestor to the Ext. P7 agreement. He has dual role. According to him, he had also witnessed the passing of Ext. P1 cheque, in the residence of the appellant on 09.04.2009. According to him, the cheque was brought prepared and signed in the presence of himself and the appellant. 8. The learned Magistrate considered the Exts. P1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or to draw presumptions under Sections 118 and 139 of the Act in favour of the complainant. If only the execution of the document is admitted or proved, the complainant will be entitled to draw the statutory presumptions in his favour. Here, merely for admitting the signature on the document, its genuineness cannot be presumed. There is no presumption of fact. The initial burden that the cheque was issued in a genuine transaction between the parties is proved, then only the statutory presumptions can be drawn by the appellant. 11. Here, in my assessment, that has not been established beyond doubt. It was urged by the learned counsel for the respondent that the details of transaction are not stated in the complaint or in the lawyer notice. But that is not necessary at all. The only question is whether the Ext. P1 is a genuine document, supported by consideration. If only its genuineness is proved, the statutory presumptions can be drawn. In fact, Ext. P7 is the sheet anchor of the appellant. But there are very many incongruities surrounding this document also and it cannot be believed that such a document was handed over as an agreement as wanted by the appellant to be made t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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