Allowed

Kanchanavally v. M.Phalgunan

Kerala HC3 Apr 2009CRL.A/400/2001

Case brief

AI extract

What is this about?

The Kerala High Court dismissed the appeal and revision against an acquittal under Section 138 NI Act, confirming the trial court's finding that the accused rebutted the statutory presumption. However, the court quashed proceedings under Section 250 Cr.P.C. initiated against the complainant for false prosecution, holding the activating magistrate incompetent to pass the final order under precedent

What did the court decide?

Quashing of proceedings under Section 250 Cr.P.C. initiated against the complainant; Appeals and Revision Petitions dismissed.

Kanchanavally Vs M.Phalgunan — Cheque Dishonour | Kerala HC (2009)

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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 3RD APRIL, 2009 / 13TH CHAITHRA, 1931

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CRL.A.No. 400 of 2001 (A) (CC.56/1998 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA) ....................

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APPELLANT/COMPLAINANT:

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----------------------------------------P.KANCHANAVALL, SASIVIHAR, VARANAM, WARD NO.9, KANJIKUZHI PANCHAYATH, CHERTHALA.

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BY ADV. SRI.J.OM PRAKASH

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RESPONDENTS/ACCUSED AND STATE:

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------------------------------------------------------1. M.PHALGUNAN, PUTHAN PURAMPIL,

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S.L.PURAM.P.O.,

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CHERTHALA.

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THE STATE OF KERALA REPRESENTED BY THEFOLLOWING PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA,

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ERNAKULAM.

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BY ADV. SRI.T.A.UNNIKRISHNAN FOR R1

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BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED FOR R2.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2009, ALONG WITH CRRP NO. 3025 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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---------------------------------------------CRL.A. No.400 of 2001 & Crl.R.P.No.3025 of 2003 ---------------------------------------------Dated 3^rd April, 2009. JUDGMENT

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The above two cases arose out of the judgment dated 29.12.2000 in C.C.No.56 of 1998 in the court of Judicial First Class Magistrate-II, Cherthala. The appellant in Crl.A.No.400/2001 and the revision petitioner in Crl.R.P.No.3025/2003 are one and the same person , viz., the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act. Challenging the impugned order, the complainant initially preferred a Crl.Revision Petition before the Sessions Court, Alappuzha as Crl.R.P.No.18/2001 which was pending there for consideration. In the meanwhile, she preferred this Crl.appeal after having obtained special leave of this Court by order dated 2.4.2001 in Crl.M.C.No.1880/2001. But in the impugned order, both in the Crl.Revision Petition as well as in the Crl.Appeal, the trial court while acquitting the accused under section 255(1), ordered to initiate proceedings against the complainant under section 250 Cr.P.C. Accordingly, M.C.No.34/2000 was registered in the trial court. Since the challenge, both in the Crl.R.P before

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Crl.A.No.400/01 & Crl.R.P.3025/03

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the Sessions Court and in this appeal, is against one and the same order, Cr.R.P.18/2001 which was pending before the Sessions Court Alappuzha was called for and decided to hear along with the above appeal so as to avoid multiple proceedings and also to avoid conflicting judgment. Thus, the Crl.Revision Petition was renumbered as Crl.R.P.No.3025/2003, and thus, Crl.A.No.400/2001 and Cr.R.P.No.3025/2003 were heard together and being disposed of by this common order.

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C.C.No.56/98 was instituted in the trial court based upon a complaint preferred by the appellant herein for the offence under section 138 of the N.I.Act. According to her, a cheque, issued by the Ist respondent/accused for an amount of Rs.30,000/-, which when presented for encashment was dishonoured due to insufficiency of funds in the account of the accused. When the accused appeared, particulars of the allegations were read over and explained to the accused and he denied the same, consequently, further trial was undertaken during which PWs 1 and 2 were examined from the side of the complainant and Exts.P1 to P6 were marked. When the incriminating circumstances put to the accused under section 313 of Cr.P.C., he denied the same. According to him, no amount is due to the complainant. The further case of the accused is that at the

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Crl.A.No.400/01 & Crl.R.P.3025/03

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instance of the complainant, connected with the business transaction between himself and the complainant, a new account was opened and the complainant obtained a blank signed cheque from the accused and such cheque leaf was misused for filing the complaint. To substantiate the defence case, the accused examined DWs 1 to 3 and produced Ext.D1 account opening form. After considering the entire materials and evidence on record, the trial court found that the case spoken by the complainant that she advanced Rs.30,000/- to the accused is false and cooked up case. It is also found that the accused has succeeded in rebutting the presumption under section 139 of the N.I.Act and he is acquitted of under section 255(1)Cr.P.C. Further, the learned Magistrate was of the opinion that it is a fit case in which proceedings under section 250 Cr.P.C. can be initiated against the complainant for awarding compensation against the accused for instituting a false case against the accused. Thus it was ordered to register a separate M.C in that matter.

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Against the above finding, order of acquittal and also against the proceedings initiated under section 250Cr.P.C., the appellant firstly preferred Crl.Revision Petition before the Sessions Court, Alappuzha, and as indicated above, subsequently, she filed the present appeal after obtaining leave of this Court.

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Crl.A.No.400/01 & Crl.R.P.3025/03

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I have heard Sri J.Omprakash, the learned counsel appearing for the appellant and also Sri T.A.Unnikrishnan appearing for the Ist respondent.

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The learned counsel for the appellant/revision petitioner argued that the appellant/complainant had succeeded in establishing the case against the accused by cogent evidence and by producing materials. It is the case of the counsel for the appellant/revision Petitioner that the complainant had succeeded in establishing the execution of the cheque and issuance of the same and therefore, it was for the accused to rebut the presumption. But According to the learned counsel, the accused failed to rebut the presumption, but the trial court, based upon irrelevant consideration and materials, came to the conclusion that the accused has rebutted the same. The learned counsel also submitted that the complainant has also moved the civil court by filing O.S.No. 518/2000 of the Munsiff's Court, Cherthala and the same was decreed in favour of the plaintiff therein who is the complainant. It is the further case of the counsel for the appellant/revision petitioner that going by the averments taken in the complaint and the nature of evidence adduced, the complainant has bona fidely prosecuted the Ist respondent/accused based upon the

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Crl.A.No.400/01 & Crl.R.P.3025/03

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cheque in question which bore the signature of the accused. Even if it is admitted - not conceded, that the materials furnished by the complainant are not sufficient to enter into a finding in favour of the complainant under section 138 of the N.I.Act, no presumption can be arrived that the complaint itself was filed with a mala fide intention so as to prosecute the accused on false allegation. Thus according to the learned counsel, in the light of the decision reported in

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Nandkumar Krishnarao Navgire v. Jananath Laxman Kushalkar {(1998)2 SCC 355) and Krishnan Moopan v. State of Kerala (2005 (2) KLT 700) ) the further proceedings initiated under section 250 Cr.P.C. is liable to be set aside.

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On the other hand, the learned counsel for the Ist respondent/accused submitted that the finding of the court below is absolutely correct and the accused/Ist respondent by producing cogent materials established a probable case which was accepted by the court below and therefore, no interference of this Court is warranted. The learned counsel also pointed out that against the decree in favour of the complainant, the first respondent/accused has already filed an appeal before the Sub Court, Cherthala as A.S.No.26/2006 and the same is pending there. .

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Crl.A.No.400/01 & Crl.R.P.3025/03

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I have carefully considered the arguments advanced by

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both the counsel and also perused the evidence and materials on record. On examination of the evidence and records, especially, in the background of the averments taken by the parties concerned, it can be seen that the account to which the cheque in question pertained was opened only on 16.6.97, that too, at the instance of the complainant. According to PW1- the complainant, the amount was borrowed on 18.6.97 and towards the said debt, the accused issued the cheque in question. The trial court found that the suggestion of the defence that the account in question was started or opened at the instance of the complainant was flatly denied by her. On the basis of the above materials, the trial court came into a conclusion that the version given by PW1 is unbelievable and, therefore, the entire transaction claimed by the complainant cannot be taken at its face value. Besides the above flaws in the case of the complainant, the trial court has also considered the defence advanced by the accused. The fact, regarding the opening of the account in the name of the accused , that too, at the instance of the complainant, though denied by the complainant herself, endorsed by the husband of the complainant when he was confronted with Ext.D1 account opening form, was not brought to the notice of the court till Ext.D1

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Crl.A.No.400/01 & Crl.R.P.3025/03

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was produced by the accused. It was on the basis of the above defence materials, the trial court found that the accused had succeeded in rebutting the presumption under section 139 of the Act which is otherwise available in favour of the complainant. Thus, going by he entire materials and evidence, I am of the view that the finding arrived on by the court below is absolutely correct and supported by materials and evidence. Therefore, no interference is warranted. Moreover, the appellant seeks interference of this Court with the order of acquittal passed by the trial court. In the decision in Ghurey Lal v. State of U.P . (2008(4) KLT SC 17 (C.No.17)(SC), the Apex Court has held that presumption of innocence of accused is reinforced by order of acquittal. Appellate court can interfere only for very substantial and compelling reasons. Reiterating the same principle, the Apex Court in Batcu Venkateshwarlu and Ors. v. Public Prosecutor H.C. of A.P. ((2009(1) Supreme 67), held that in case of acquittal, there is double presumption in favour of the accused, there must be substantial and compelling reasons for holding that the trial court was wrong. I have already found that the finding of the court below is absolutely correct, especially, in the light of the evidence and materials on record, and therefore, I find no

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Crl.A.No.400/01 & Crl.R.P.3025/03

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compelling and substantial reasons to interfere with the order of the trial court. Hence, the finding arrived on by the court below and the order of acquittal passed under section 255(1) Cr.P.C. is confirmed.

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I have already found that the appellant/revision petitioner - the complainant - was bona fidely prosecuting the Ist respondent/accused on the basis of the Ext.P1 cheque which bares the signature of the Ist respondent/accused and the complainant was the holder of the cheque in question. Of course, the Ist respondent/accused has got an explanation as to how Ext.P1 cheque reached in the hands of the complainant/appellant. It is true that the said version of the Ist respondent/accused was accepted by the court below which approved by me in this judgment and found that there is a probable case in favour of the defence. But that does not necessarily mean that the case of the complainant was basically false and she preferred the complaint before the court against the Ist respondent/accused for a false prosecution. From the averments contained in the complaint and also the deposition of PW-1, it cannot be said that she had initiated the prosecution with mala fide intention or with false allegations. Therefore, the finding of the trial court to that effect is absolutely unwarranted and incorrect. Consequently, the proceedings initiated under section 250

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Crl.A.No.400/01 & Crl.R.P.3025/03

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Cr.P.C. is also liable to be set aside. The factual position is also under dispute that the learned Magistrate who initiated the proceeding as per the impugned judgment had already been transferred. In the decision reported in Nandkumar Krishnarao Navgire v. Jananath Kushalkar {(1998)2 SCC 355) (cited supra), the Apex Court has held that succeeding Magistrate cannot continue with the proceedings initiated by his predecessor. It was also held that the same Magistrate alone is competent to initiate action and pass final orders. Reiterating the above decision, the learned Judge of this Court in the decision reported in Krishnan Moopan v. State of Kerala (2005 (2) KLT 700), was of the opinion that the same Magistrate alone can initiate action and pass the final orders.

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Under the above legal position, the succeeding Magistrate of the court of Judicial First Class Magistrate-II, Cherthalla who passed the impugned judgment in C.C.No.56/98 and who initiated M.C.34/2000 under section 250 Cr.P.C. cannot pass the final order. Therefore, the proceedings initiated against the appellant/revision petitioner, the complainant in C.C.No.56/98, as per the proceedings is set aside.

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Crl.A.No.400/01 & Crl.R.P.3025/03

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The Crl.Appeal and the Crl.Revision petition are dismissed

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accordingly.

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V.K.MOHANAN, JUDGE

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kvm/-