The High Court of Kerala dismissed the complainant's criminal appeal challenging an acquittal in a Section 138 cheque dishonour case. Upholding the trial court's view that the complainant failed to prove cheque execution and the accused failed to pay dues after notice.
The criminal appeal was dismissed, and the order of acquittal of the accused was upheld.
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
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935
CRL.A.No. 438 of 2008 (D)
AGAINST THE JUDGMENT IN CC 434/2001 of J.M.F.C.-I, SULTHANBATHERY, DATED 23-03-2007
APPELLANT(S)/COMPLAINANT:
K.KHADER HAJI, S/O.ABDULLAH MUSLIAR, THIKKODI, KOILANDI.
BY ADV. SRI.K.B.MOHAMED KUTTY (SR.) SRI.FIROZ K.M.
RESPONDENT(S)/ACCUSED/STATE:
1. P.K.KANAKARAJAN PUTHEANVEETIL, P.O.KADALAMAD, VADUVANCHAL THEMATTUCHAL, S. BATHERY.
2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.
BY ADV. SRI.DEVAPRASANTH.P.J. FOR R1 BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
Crl.A.No.438 of 2008
Dated this the 13th day of November, 2013.
By judgment dated 23.3.2007 in C.C.No.434/01 of
the court of Judicial First Class Magistrate court-I, Sultan Bathery, the learned Magistrate has found that the appellant/complainant has miserably failed to prove that the respondent/accused issued Ext.P1 cheque in favour of the appellant/complainant towards the discharge of a lawful debt as alleged by the appellant/complainant and the complainant has failed to prove the execution of Ext.P1 cheque by the 1st respondent/accused and accordingly the accused, who faced the prosecution for the offence under section 138 of the NI Act, is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal recorded by the trial court, challenged in this appeal at the instance of the appellant/complainant.
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3,50,000/- from the appellant/complainant and towards the repayment of the same, the 1<sup>st</sup> respondent/accused executed and issued a cheque, which is produced as Ext.P1, bearing date 14.9.2001 for an amount of 3,50,000/-, which when presented for encashment, dishonorued for the reason funds insufficient in the account of the accused and though the complainant sent statutory notice, calling upon the accused to pay the amount covered by the dishonoured cheque, no amount was paid and therefore the accused has committed the offence punishable under section 138 of the NI Act.Crl.A.No.438 of 2008
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the complainant himself was examined as PW1 and produced Exts.P1 to P5 documents. Whereas from the side of the defence, Dws.1 to 3 were examined and Exts.D1 to D4 documents were marked. Besides the above, Ext.C1 is marked as court exhibit. After considering the above evidence and materials, particularly after consideration of the expert evidence, the court concluded that the complainant has failed to prove the execution of the cheque and thereby failed to establish the essential ingredients of section 138 of the NI Act and consequently the 1st respondent/accused is acquitted.
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complainant himself stated that Ext.P1 cheque was executed and issued in his presence. Another contention advanced by the learned counsel for the appellant is that in the present case, Dws.1 and 2, who are handwriting experts, were examined and the evidence of DW1 is in favour of the appellant/complainant and against the 1st respondent/accused, but the court below ignoring the above evidence, opted to accept the evidence of DW2 without assigning any reason for rejecting the evidence of DW1. So, according to the learned counsel, the findings of the court below are contrary to the evidence on record and the findings are liable to be interfered with and the order of acquittal is liable to be reversed.
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transaction, except the mere assertion at the time of the cross examination, and therefore the trial court is perfectly correct in rejecting the evidence of DW1. It is the further contention of the learned counsel that, though DW1 has issued Ext.D1 report and deposed to the effect that the signature seen in Ext.P1 cheque is subscribed by the very same person who subscribed the specimen signatures and handwriting, according to the learned counsel, DW1 did not made any attempt to conduct any positive examination about the dissimilarities that occurred in the signature seen in Ext.P1. Therefore, according to the learned counsel, the trial court is correct in opting the evidence of DW2 and Ext.D2 report, since the opinion assigned by DW2 is supported by several reasons, including the dissimilarities observed by him in the disputed signature of the 1st respondent/accused. Thus according to the learned counsel, there is no illegality or perversity in the findings of the court below and as such no interference is warranted.
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Magistrate is perfectly correct since in the above mentioned extracted portion of the affidavit of the complainant, there is no whisper that the cheque in question was executed before the complainant and he had seen the due execution of the same and putting the signature by the accused in Ext.P1 cheque. On a perusal of the complaint, particularly in the 2nd paragraph of the complaint, it can be seen that, what extracted by the learned Magistrate in paragraph 9 of the judgment is the verbatim reproduction of the averments of the complainant in paragraph 2 of the complaint. Thus, it can be seen that either in the complaint or in the proof affidavit, there is no specific pleading to the effect that Ext.P1 cheque was executed and duly signed by the accused in the presence of the complainant and he had seen putting the signature by the accused in Ext.P1 cheque. In the absence of any pleading in the complaint or statement in the proof affidavit, according to me, the version given by PW1 during the cross examination got no evidentiary value at all. According to me, the paucity of evidence from the part of
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the complainant with respect to the execution of Ext.P1 cheque, including putting of signature by the accused on the same, is very relevant since the 1st respondent/accused denied the entire transaction including the execution and issuance of the cheque.
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support of the above opinion, she had also assigned several reasons. But dissatisfied with the evidence given by DW1 and her Ext.D1 report, again Ext.P1 cheque was sent for second opinion to the Government Examiner of Questioned Documents, Directorate of Forensic Science (Ministry of Home Affairs), Government of India, Hyderabad, and accordingly Ext.D2 report was furnished by one Gandhi, M.Sc., who is examined as DW2. In his report it is specifically stated that, “The person who wrote the blue enclosed writings stamped and marked S11 to S40 did not write the red enclosed writing similarly stamped and marked Q1”, and this statement is based on the cumulative consideration of various dissimilarities in the writing habit occurring in them. The trial court after considering the above two expert reports and the evidence of Dws.1 and 2 experts, opted to accept the evidence of DW2 and Ext.D2 report.
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deposed that in pictorial appearance, the first letter “ P ” shows difference as that of the specimen signature and it is due to disguise. Disguise means intentional changes. The above evidence of DW1 was probably in par with the 6th and 7th reasons given by DW1 in her Ext.D1 report. The 6th reason is that the disputed signature shows sign of disguise and the 7th reason is to the effect that due to disguise the signature D is made slowly and consciously. Similarly, under item No.9, the reason given is, “The pictorial appearance is effected due to disguise in the disputed signature.” Suffice to say that, the above facts deposed by DW1 was not subjected to cross examination. As there was no cross examination done on the above points, according to me, the appellant/complainant seems to have admitted the same. As rightly pointed out by the learned Magistrate, DW2 is more experienced than DW1 and his evidence, both the deposition as well as the report, when compared with the evidence of DW1 is in a better position. In the evidence
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of DW2, he had stated about the scientific devices used by him in comparing the disputed signature and writing. But DW1 has no such claim. As rightly pointed out by the learned counsel for the respondent, in the evidence of DW2 and his Ext.D2 report, it is specifically mentioned about the number of dissimilarities in the disputed signature when compared with the admitted signature. The said fact itself is sufficient to prove that the signature contained in Ext.P1 is not put by the 1st respondent/accused. According to me, the said evidence is sufficient to probabilise the case of the 1st respondent/accused that the signature seen in Ext.P1 cheque is not put by him and as such, there is no execution of Ext.P1 cheque.
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signature that contained in the account opening form furnished by the 1st respondent/accused and according to the learned Magistrate, the signature seen in Ext.P1 is entirely different from the admitted signatures. I have also personally verified Ext.P1 cheque physically, with the admitted signature of the 1st respondent/accused. According to me, there is no similarities at all which warrant any expert opinion. Usually, expert opinion is required when there is similarities in the signatures. But in the present case, it is crystal clear to an open eye that, the signature seen in Ext.P1 has no similarities with the admitted signature of the 1st respondent/accused.
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“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 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.
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(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 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
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warranted with the order of acquittal recorded by the trial court.
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 appellate court can re-appreciate evidence and interfere with the order of acquittal under Section 378 Cr.P.C.
Whether the trial court failed to assign reasons for rejecting the evidence of the first handwriting expert in favor of the second.
Whether the failure to prove 'dishonour due to insufficiency of funds' and 'failure to pay' under Section 138 NI Act justifies acquittal.
Colour shows how this judgement treated each authority
Mokkiah & Anr. Vs. StateExplained¶12
Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88]
Murugesan & Ors. vs. StateExplained¶12
Murugesan & Ors. vs. State Through Inspector of Police, 2012 (10) SCC 383 · Who else cites this
Sheo Swarup vs. King EmperorExplained¶12
Sheo Swarup vs. King Emperor, AIR 1934 PC 227 · Who else cites this
Chandrappa & Ors. vs. State of KarnatakaExplained¶12
Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 · Who else cites this
4 provisions across 3 enactments
K.KHADER HAJI
P.K.KANAKARAJAN PUTHEANVEETIL
THE STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court