Dismissed

Samkutty Abraham v. Labour India Publications Ltd. & Others

Kerala HC15 Feb 2013CRL.A/2279/2009

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed this criminal appeal against an acquittal. The court held that the respondent company failed to prove that money or documents were entrusted to them, a necessary ingredient for criminal breach of trust under section 406 IPC. Relying on Supreme Court precedent, the appeal was rejected for failing to show perverse findings.

What did the court decide?

The criminal appeal is dismissed; the order of acquittal stands affirmed.

Samkutty Abraham Vs Labour India Publications Ltd… — Cheating and Forgery | 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 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934

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CRL.A.No. 2279 of 2009 (D)

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CC.37/2004 of C.J.M.PATHANAMTHITTA DATED 10.9.2009

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APPELLANT(S)/COMPLAINANT:

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SAMKUTTY ABRAHAM MARANGATTUPILLY P.O., KOTTAYAM DIST- REP. BY ANTO JOSEPH, GENERAL MANAGER, LABOUR INDIA PUBLICATIONS LTD., MARANGATTUPILLY P.O., KOTTAYAM.

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BY ADV. SRI.MVS.NAMBOOTHIRY

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RESPONDENT(S)/ACCUSED & STATE:

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1. LABOUR INDIA PUBLICATIONS LTD., MARANGATTUPILLY P.O.

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KOTTAYAM DISTRICT-REP. BY ANTO JOSEPH, GENERAL MANAGER, LABOUR INDIA PUBLICATIONS LTD., MARANGATTUPILLY P.O., KOTTAYAM.

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2. GEETHA MOHAN, EXECUTIVE, LABOUR INDIA PUBLICATIONS LTD., MARANGATTUPILLY P.O. KOTTAYAM.

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3. SANTHOSH GEORGE KULANGARA, EXECUTIVE MANAGING DIRECTOR LABOUR INDIA PUBLICATIONS LTD., MARANGATTUPILLY, P.O. KOTTAYAM.

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4. STATE OF KERALA-REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R,R1-R3 BY ADV. SRI.SUNIL CYRIAC BY PUBLIC PROSECUTOR ADV.SMT.SHEEBA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.2279 of 2009

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Dated this the 15^th day of February, 2013.

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J U D G M E N T

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Aggrieved by the judgment dated 10.9.2009 in C.C.No.37 of 2004 of the court of Chief Judicial Magistrate-

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Pathanamthitta, the complainant therein preferred this appeal by which the learned Magistrate acquitting the accused 3 in numbers, who faced the prosecution for an offence punishable under sections 420 and 406 r/w 34 of IPC.

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The case of the complainant is that, he was an agent of Labour India Publication of the 1^st accused for the period from 21.4.2003 to 5.11.2003 within the local limits of Kozhencherry Educational Sub District and at the time of appointment as an agent, the accused demanded `30,000/- as cash deposit, two blank signed cheques and one stamped signed blank paper from the complainant as

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security. According to the complainant, it is agreed by the accused that the cash deposit will be returned at the time of termination of agency with interest @ 10% p.a. and also agreed to return other documents furnished by the complainant, on termination of agency. It is also averred that on 21.4.2003, the 2^nd accused approached the complainant at his residence at Ayroor and obtained 20,000/- as cash and cheque for 10,000/- drawn from the Federal Bank Limited, Kottathoor branch. She also obtained five blank signed cheques and a signed blank stamped paper worth `50/- from the complainant as security. According to the complainant, the 2^nd accused obtained the cash and other documents from the complainant on behalf of the 1^st accused company by entering into an agreement with him. It is also averred that the complainant had gone to the company on the same day along with the 2^nd accused who entrusted the cash and other documents to 3^rd accused in the presence of the

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complainant. It is also the case of the complainant that, A1 company had given receipt dated 21.4.2003 for accepting 20,000/- as security deposit and another receipt dated 8.5.2003 after encashing the cheque for 10,000/-. According to the complainant, finally the complainant had demanded back the security amount with interest and other records given by him, but the 1^st accused company did not heed his request and evaded to return the amount and other documents by stating lame excuses. Thereafter, the 1^st accused company with an intention to cheat the complainant, dishonestly filled up the signed blank cheque making entries without his consent and knowledge and claimed `1,81,688/- and presented the cheque before the bank for encashment and got it dishonoured, and thereafter, complying with the provisions in the NI Act, issued notice to the complainant demanding the said amount. According to the complainant, he had also sent a reply notice to the said notice. Thus it is the further case of

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the complainant that while issuing reply to the said notice, the complainant demanded return of the cash deposit and other documents given by him at the time of agreement and so far the same were not returned. It is the further allegation in the complaint that the accused in furtherance of their common intention committed cheating by misrepresenting facts so as to obtain unlawful enrichment to them and unlawful loss to the complainant and also alleged that the accused have committed criminal breach of trust by misappropriating the amount entrusted with the first accused-company by the complainant, as the company failed to return the security deposit even after repeated demand raised by him.

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On the basis of the complaint, process were issued to the accused and on the appearance of the accused, Pws.1 to 3 were examined and marked Exts.P1 to P6, and thereafter a formal charge was framed against the accused for the offence under sections 420 and 406 r/w 34 of IPC to

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Crl.A.No.2279 of 2009

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which the accused pleaded not guilty. Thereafter, Pws.1 to 3 were recalled and cross examined at the instance of the accused. Exts.P7 and P8 were also marked during that stage. Thereafter, PW4 was examined and Exts.P9 and P10 were marked. From the side of the defence, Exts.D1 to D3 (a) were marked, though no witness was examined. Thus, finally the trial court has found that there is no evidence to show that the amount had been entrusted with any of the accused persons and there was a promise to return the same as and when demanded. It is further found that the evidence adduced by the prosecution is not at all sufficient to prove the ingredients of section 406 of IPC and accordingly found that the complainant has failed to prove its case and finally the accused are acquitted of all the charges levelled against them. It is the above finding and order of acquittal challenged in this appeal.

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I have heard Adv.Sri.M.V.S.Nampoothiry, learned counsel for the appellant and I have perused the judgment

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impugned in this appeal.

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Learned counsel for the appellant vehemently submitted that the learned Magistrate discarding the oral evidence of the complainant, who was examined as PW1 and particularly based upon Ext.D1 document, came into a conclusion that no money or documents were entrusted with the accused as claimed by the complainant. According to the learned counsel for the appellant, the learned Magistrate has erroneously found that Ext.D1 agreement was executed between the complainant and the accused solely for the reason that the name and signature of the complainant found a place in Ext.D1. It is the specific contention of the learned counsel that the complainant never admitted the contents of Ext.D1 agreement. On the other hand, according to the counsel, the very production of Ext.D1 agreement from the possession of the accused justifies the allegation raised by the complainant against the accused. Therefore, the counsel submits that the findings

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Crl.A.No.2279 of 2009

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of the court below, though no offence under section 405 is attracted, against the accused is incorrect and that too without proper appreciation of the evidence and materials on record.

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I have carefully considered the arguments advanced by the counsel for the appellant and I have perused the judgment of the trial court.

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At the outset it is to be noted that, before this Court as well as in the trial court, no argument is advanced canvassing a conviction against the accused for the offence under section 420, since according to the counsel for the appellant/complainant, section 420 of IPC is not attracted in the light of the facts and circumstances involved in the case.

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In the light of the arguments advanced by the counsel for the appellant and in the light of the findings of the court below based upon the findings, evidence and materials referred to in the judgment, the question to be considered is whether the appellant has succeeded in

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making out a prima case in support of his challenge against the findings of the court below. The offence alleged against the accused are under sections 420 and 406 r/w 34 of IPC. As I indicated earlier, the complainant did not press the offence under section 420 against the accused. In order to attract penal liability under section 406, the ingredients of section 405 has to be established. The most essential requirement to attract section 405 is the entrustment of property with the accused. In the present case, the learned Magistrate has specifically found that there is no evidence to show that the amount had been entrusted with any of the accused persons and there was a promise on their part to return the same as and when demanded. Challenging the above finding, the learned counsel for the appellant submitted that the oral evidence adduced by the complainant would show that there was an endorsement of money, blank cheque leaves and stamped paper with the accused. Let us see whether the learned Magistrate has

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considered the above aspect. In paragraph 9 of the judgment of the trial court, the learned Magistrate has found that the evidence of PW1 shows that he had executed an agreement in favour of the Managing Editor on 21.4.2003, by which he agreed to abide by the conditions prescribed by the company in respect of the supply and distribution of books. There is no dispute that the complainant has got entered into a written agreement. Whereas, the accused produced Ext.D1 agreement allegedly executed by the complainant in favour of the Labour India Publications. Thus the contention of the complainant is that the contents stated therein were not written by him and he does not know anything about those aspects. The learned Magistrate has found that the complainant has admitted his signature and the name found below the writings of Ext.D1 agreement. The above factum was considered by the learned Magistrate in the light of the plea taken by the complainant. Thus on physical verification of Ext.D1, the

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learned Magistrate has found that the same is written with the same ink. The signature subscribed by the complainant is also with the same ink and the name found just below the signature of the complainant in Ext.D1 agreement, is with the same pen. The learned Magistrate has also found that the stamp paper was purchased by PW1 on 6.4.2003. The learned Magistrate on his satisfaction further found that Ext.D1 is the real and genuine document executed by PW1 and therefore the learned Magistrate refused to accept the version of PW1 and his deposition against the contents of Ext.D1.

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In this juncture it is relevant to note that the complainant has admitted the fact that he was appointed as an agent of A1 company. The complainant has also admitted that there was an agreement entered into between the complainant and the accused connected with such agency. The complainant has no case that he has not executed any written agreement. But at the very same

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time, he has also not produced any agreement to prove the factum of execution of agreement claimed by the complainant and no such independent reliable evidence was adduced from the side of the complainant. In this juncture it is relevant to note that Ext.D1 is written on a stamped paper purchased in the name of PW1-the complainant on 6.4.2003. As rightly found by the learned Magistrate, in Ext.D1 agreement, there is no endorsement to the effect that the complainant has provided the cash deposit and furnished blank signed cheques or blank stamped paper as claimed by him. Thus going by the judgment of the trial court, it can be seen that the learned Magistrate after assigning acceptable and cogent reasons, that too on the basis of the available evidence and materials, found that the complainant has miserably failed to prove with sufficient evidence that he had entrusted with the accused the blank signed cheques and blank stamped paper and cash. If that be so, the most important ingredients of section 405, is not

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attracted as rightly held by the learned Magistrate. From the above facts and circumstances and the evidence referred to above, as seen from the judgment in question, it cannot be said that the findings of the court below are perverse or illegal so as to interfere in appeal. In a recent decision reported in Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430} the Honourable Apex Court has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. So, according to me, the complainant has miserably failed to show that the judgment of the trial court is perverse or illegal or that he has failed in making out any compelling or exceptional circumstance to interfere with the findings of the court below and thereby to disturb the

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double presumption of innocence available in favour of the accused by the judgment of the trial court. Therefore, even if this appeal is entertained any further, there is no scope for any interference with above finding of the court below, particularly when the appellant has miserably failed to make out a prima facie case in support of his challenge against the judgment of the trial court.

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In the result, this appeal fails and accordingly it 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

Samkutty Abraham v. Labour India Publications Ltd. & Others

Case brief

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Samkutty Abraham v. Labour India Publications Ltd. & Others

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