In this appeal against an order of acquittal under Section 138 of the Negotiable Instruments Act, the High Court upheld the trial court's decision. The court found the defence evidence credible, which rendered the prosecution's claim of a loan improbable, thus justifying the acquittal.
The criminal appeal was dismissed with no interference in the order of acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 18TH DAY OF NOVEMBER 2013/27TH KARTHIKA, 1935
CRL.A.No. 1888 of 2008 ( )
AGAINST THE JUDGMENT IN CC 114/2007 of J.M.F.C.COURT-III, KOTTARAKARA, DATED 23.05.2008
APPELLANT(S)/COMPLAINANT::
SATHYASEELAN, S/O.GOVINDA PILLAI, LEKSHMIYIL, NEELESWARAN P.O., NEDUVATHOOR.
BY ADV.SRI.K.SUBASHCHANDRA BOSE
RESPONDENT(S)/ACCUSED AND STATE;:
1. SUDESAN, S/O.GOPINADHAN, SULEKHA SADANAM, CHEERANKAVU, EZHUKONE.
2. STATE OF KERALA REPRESENTED BY THE
BY ADV. SRI.SYAM J SAM
BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
Crl.A.No.1888 of 2008
Dated this the 18th day of November, 2013.
The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant as he is aggrieved by the order of acquittal recorded by the trial court in favour of the accused u/s.255 (1) of Cr.P.C. Thus, the challenge in the present appeal is against the judgment dated 23.5.2008 in C.C.No.114/07 of the court of Judicial First Class Magistrate-III, Kottarakara.
2 lakhs on 1.12.2006 and he simultaneously issued Ext.P1 cheque which is a post dated cheque bearing date 9.2.2006 for an amount of 2 lakhs and when the said cheque presented for encashment, thesame dishonoured for the reason funds insufficient and it is the further case of the complainant that though he caused
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to sent a registered notice to the accused and though he received it, no amount was paid thereafter and therefore the accused has committed the offence punishable under section 138 of the NI Act.
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dated 30.4.2007 in C.C.No.114/07, the learned Magistrate has found that the accused is guilty of the offence under section 138 of the NI Act. Accordingly he is convicted thereunder. On such conviction, the learned Magistrate sentenced the accused to undergo simple imprisonment for 15 days and also directed him to pay compensation of `2 lakhs to PW1 under section 357(3) of Cr.P.C.
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matter to lower court to give an opportunity to the accused to cross examine PW1 and to adduce defence evidence, if he prefers so and also securing an opportunity to the complainant to adduce fresh evidence if he desires so. The accused was directed to pay cost of `3,000/- to the complainant within 5 days from the date of the judgment, failing which, it was made clear that the appeal will stand dismissed, resulting the confirmation of impugned judgment.
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Kerala [2006(3) KLT 404 (SC)] , the trial court has found that when the totality of the evidence is considered, the defence version is more probable and there is absolutely no chance of advancing a sum of 2 lakhs on 1.2.2006 by the complainant and the complainant's case that Ext.P1 cheque was given by the accused for 2 lakhs borrowed on 1.2.2006 cannot be believed. So also, it is held that the complainant failed to establish that Ext.P1 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt. Consequent to the above finding, the accused is found not guilty and accordingly he is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.
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how Ext.P1 cheque reached in the hands of the complainant. The learned counsel pointed out that during the 313 enquiry, which took lace on two occasions, the accused took different contentions. One of the contention is that, the cheque which given as security in connection with the vehicle transaction that occurred between the complainant and the accused, and the amount connected with such transaction though paid off, the cheque was not returned. Another contention taken by the accused is to the effect that Ext.P1 cheque was stolen by the complainant from his house in the building which was rented out to the accused by the complainant himself. So, according to the learned counsel for the appellant, the trial court has committed wrong in its finding that the cheque in question was given as a security and the same was misused by the complainant. In order to substantiate the above contention, the learned counsel took me through the deposition of PW1 as well as the deposition of DW1-the
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accused himself. On the basis of Ext.D1 agreement and Ext.D2 endorsement contained in R.C. book, the learned counsel submitted that the vehicle transaction has no connection with the present transaction and even according to the version of the defence, the entire matter connected with such vehicle transaction has been finally settled. According to the learned counsel, the evidence on record shows that the cheque in question is issued by the accused connected with the amount borrowed by the accused from the complainant on 1.2.2006 and therefore Ext.P1 cheque is no way connected with the vehicle transaction.
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circumstances involved in the case. According to the counsel for the respondent, to prove the alleged transaction, except Ext.P1 cheque there is no other evidence or materials. So, according to the learned counsel for the respondent, the findings of the court below are quite reasonable and legal and no interference is warranted.
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in making out any ground to interfere with the order of acquittal recorded by the trial court. The specific case of the complainant is that on 1.2.2006, the appellant/accused came to his house and demanded a loan of `2 lakhs and he gave the same to the appellant/accused and the appellant/ accused executed and issued Ext.P1 cheque which is a post dated cheque bearing date 9.2.2006. Besides the above bare assertion, there is no averment in the complaint or any factual input in the proof affidavit filed in lieu of chief examination of the complainant who was examined as PW1. Suffice to say, to prove the above transaction, the only document available is Ext.P1-a cash cheque and absolutely there is no other documents. It is also relevant to note that to prove the above transaction, there is no other documentary or any independent evidence other than the interested version of PW1, the complainant himself. The only case of the complainant is that he knows the accused and got acquaintance with him, as the accused was his
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brother's tenant. According to me, even then, there is no sufficient evidence or materials to prove the depth of the friendship between the complainant and the appellant/ accused, so as to give such a huge amount of `2 lakhs in the absence of any other security or documents. Going by the case of the complainant it appears that, on a fine morning when the appellant/accused approached the respondent/complainant in his house and requested for the amount, he simply handed over the money. There is no whisper either in the complaint or in the proof affidavit that there was a prior request for such a huge amount and the complainant has raised money on such a request and made available the same on 1.2.2006. So, in the given facts and circumstances as spelled out from the case of the complainant, it is quite unbelievable that on a fine morning the respondent/complainant was ready with the money and gave the same to the appellant/accused without any security or documents other than Ext.P1 cheque.
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seen that there was a vehicle transaction between the complainant and the accused, and the vehicle which is covered by Ext.D1 agreement, has agreed to sell to the accused by the complainant as per Ext.D1 agreement executed on 12.1.2006, on which date the complainant accepted an amount of 1 lakh from the accused and the total sale consideration was fixed as 3 lakh, out of which, the accused has to pay `2 lakhs to the complainant. It appears from the endorsement contained in Ext.D2 R.C. Book that, the ownership of the vehicle was transferred in the name of the accused as per the endorsement dated 7.2.2006. The ownership stand transferred w.e.f. 19.1.2006. As per the recital contained in Ext.D1 agreement, the R.C.book and other documents with respect to the vehicle would be given only on paying the balance sales consideration. However, the endorsement contained in the R.C. book is dated 7.2.2006. As submitted by the learned counsel for the appellant, the balance sales
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consideration would have been given to the complainant by the accused on 19.1.2006. But it is pertinent to note that the above materials and defence evidence shows that when the accused allegedly borrowed the sum on 1.2.2006, as per the endorsement contained in the R.C. Book and in Ext.D1, an amount of 2 lakh being the balance sales consideration was due to the complainant. If that be so, it cannot be believed for a moment that while the said amount was due from the accused connected with transaction of the vehicle, the complainant again advanced an amount of 2 lakhs to the accused. In order to accept the case of the complainant, it is to be believed that after receiving `2 lakhs from the accused connected with the vehicle transaction, the complainant again released the same to the accused, which is not rational and sensible. So, the case of the complainant is rendered as improbable and unbelievable.
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Krishna Janardhan Bhat Vs. Dattatraya Hegde reported in [2008(1) KLT 425 (SC)] , it was held that, “The accused can make use of the defence or materials or evidence relied on by the complainant prosecution, to develop or to establish the plea of the defence so as to rebut the presumption”. In the same decision, it is further held that, “Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is “preponderance of probabilities”. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.” So, by adducing the defence evidence, the accused has succeeded in rebutting the presumption by establishing a very strong probable case as to how Ext.P1 cheque reached in the hands of the complainant. So,
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according to me, the trial court is fully justified in its finding that Ext.P1 cheque was the one which was given as security connected with the vehicle transaction. While the complainant has miserably failed to substantiate his claim with respect to the borrowal of `2 lakh by the accused on 1.2.2006 for the afore said reasons, the defence evidence that produced in this case will probabilise the circumstances under which Ext.P1 cheque reached at the hands of the complainant. Therefore, according to me, there is no perversity or illegality in the findings of the court below so as to interfere with the findings of the court below and the impugned judgment.
Vs. State, Rep. by the Inspector of Police, Tamil Nadu
[2013 (1) Supreme 88], it has held that,
“8. In a recent decision in Murugesan & Ors. vs. State Through Inspector of Police, 2012 (10) SCC 383, one of us Ranjan Gogoi, J. elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the
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trial Judge. After adverting to the principles of law laid down in Sheo Swarup vs. King Emperor, AIR 1934 PC 227 (2) and series of subsequent pronouncements in para 21 summarized various principles as found in para 42 of Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 as under:
21. xxxxxxxxxxxxxx
“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent
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unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” (emphasis supplied).
So, on examination of facts and circumstances of the case on hand and the evidence and materials on record, in the light of the guideline issued by the Honourable Apex Court in the above cited decision, it can be seen that the reasons assigned by the learned Magistrate in support of his finding are quite reasonable and legal, and it cannot be said that the same are perverse or illegal. The appellant has miserably failed to make out any compelling circumstances or substantial reasons to disturb the double presumption of innocence secured by the 1st respondent/ accused as per the impugned judgment. Therefore, no interference is warranted with the order of acquittal recorded by the trial court.
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In the result, I find no merit in this appeal and
accordingly the same is dismissed.
Sd/-
V.K.MOHANAN,
Judge
ami/
//True copy//
P.A. to Judge
3 issues framed by the court
Whether the trial court was justified in acquitting the accused on facts creating reasonable doubt regarding the existence of a legally enforceable debt.
Whether the appellate court could interfere with an order of acquittal where the defence evidence made the prosecution case improbable.
Whether the accused successfully rebutted the presumption under Section 138 of the Negotiable Instruments Act by adducing defence evidence.
Colour shows how this judgement treated each authority
Narayana Menon Vs. State of KeralaExplained¶35
Narayana Menon Vs. State of Kerala [2006(3) KLT 404 (SC)]
Krishna Janardhan Bhat Vs. Dattatraya HegdeExplained¶69
Krishna Janardhan Bhat Vs. Dattatraya Hegde [2008(1) KLT 425 (SC)]
Mokkiah & Anr. Vs. StateExplained¶76
Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88]
Murugesan & Ors. vs. State Through Inspector of PoliceExplained¶78
Murugesan & Ors. vs. State Through Inspector of Police, 2012 (10) SCC 383 · Who else cites this
Sheo Swarup vs. King EmperorExplained¶82
Sheo Swarup vs. King Emperor, AIR 1934 PC 227 · Who else cites this
Chandrappa & Ors. vs. State of KarnatakaExplained¶82
Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 · Who else cites this
3 provisions across 2 enactments
SATHYASEELAN
SUDESAN
STATE OF KERALA
V.K. MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court