Dismissed

P.v.Gangadharan v. Pramod K

Kerala HC6 Nov 2017Crl.L.P./439/2017

Case brief

AI extract

What is this about?

High Court of Kerala dismissed a Crl.L.P. seeking leave to institute criminal appeal against an acquittal under Sec.138 NI Act. The Court held that the appeal court correctly found the complainant failed to prove source of funds and transaction credibility, thus no scope for interference.

What did the court decide?

Leave to institute criminal appeal under Sec. 378(4) Cr.P.C. was denied and the petition was dismissed.

P.v.Gangadharan Vs Pramod K — Cheque Dishonour | Kerala HC (2017)

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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 ALEXANDER THOMAS

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MONDAY, THE 6TH DAY OF NOVEMBER 2017/15TH KARTHIKA, 1939

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Crl.L.P..No. 439 of 2017 ()

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CRL.A. NO.541/2011 OF ADDL. SESSIONS COURT-I, THALASSERY. STC. NO.399/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, KANNUR.

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PETITIONER/COMPLAINANT:

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P.V. GANGADHARAN, AGED 61 YEARS, S/O. GOPALAN, CHEMBOOTTIVALAPPIL HOUSE, CHALA, KANNUR.

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BY ADVS.SRI.R.KISHORE (KALLUMTHAZHAM), SMT.P.SREESHA.

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RESPONDENTS/ACCUSED AND STATE:

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1. PRAMOD K., AGED 42 YEARS, S/O.KARUNAKARAN, RESIDING AT ARAYAKANDI HOUSE, P.O. KOTTOLI ATHAZHAKUNNU, KANNUR-16.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.

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R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.

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THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 06-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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rs.

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Crl.L.P..No. 439 of 2017

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APPENDIX

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PETITIONER'S ANNEXURES:-

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ANNEXURE A1 COPY OF THE JUDGMENT DATED 30/09/2011 IN STC. NO.399/2010 IN THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, KANNUR.

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ANNEXURE A2 CERTIFIED COPY OF THE JUDGMENT DATED 31/07/2017 IN CRL.APPEAL NO.541/2011 IN THE COURT OF SESSIONS COURT, THALASSERY.

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ANNEXURE A3 COPIES OF RELEVANT PAGES OF PENSION PAYMENT ORDER.

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RESPONDENT'S ANNEXURES:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

ALEXANDER THOMAS, J.

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==================

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Crl.L.P.No. 439 of 2017

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==================

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Dated this the 6^th day of November, 2017

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J U D G M E N T

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This is a petition seeking special leave of this Court under Sec. 378(4) of the Cr.P.C. to institute criminal appeal so as to challenge the judgment dated 31.7.2012 of the appellate Sessions Court concerned (Court of Sesions, Thalassry) in Crl.Appeal No.541/2017, whereby the accused for the offence punishable under Sec.138 Negotiable Instruments Act has been acquitted. The petitioner herein is the complainant and the 1^st respondent herein is the accused in S.T.C.No.399/2010 on the file of the Judicial First Class Magistrate's Court-I, Kannur. The dishonoured cheque involved in this case is for Rs. 1,50,000/-. The trial court as per the judgment rendered on 30.9.2011 had convicted the accused for the abovesaid offence and has sentenced him to undergo simple imprisonment for 3 months and to pay compensation of Rs. 1,50,000/- to the complainant under Sec. 357(3) of the Cr.P.C. and in default thereof, to suffer simple imprisonment for a further period of 2 months. Aggrieved thereby, the accused had filed Crl.Appeal No. 541/2011 before the the Court of Sessions, Thalassery, and the said appellate court had reversed the judgment of conviction and had thereby acquitted the accused.

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Crl.L.P.439/17 - : 2 :-

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Heard Sri.R.Kishore, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

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The brief of the case of the complainant is to the effect that, in discharge of a liability of Rs.1,50,000/- owed by the accused to the complainant, the respondent accused had issued Ext.P-1 cheque dated 5.5.2009 for Rs. 1,50,000/- and the said cheque when presented resulted in dishonour and that, after adhering to the statutory formalities, the complainant had instituted the abovesaid complaint, which led to the conduct of the trial.

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During the trial the complainant has examined himself as P.W-1 and has marked Exts.P-1 to P-5 documents. The defence has not adduced any oral or documentary evidence.

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The basic defence set up by the accused during the cross examination of P.W-1 is to the effect that there was no transaction with the complainant in the manner alleged in the complaint and that the accused has never voluntarily executed and issued Ext.P-1 cheque for Rs. 1,50,000/- and that, on a prior occasion, he had borrowed an amount of Rs. 15,000/- from the complainant, at which point of time, the accused was constrained to give present Ext.P-1 cheque as singed blank one as security and despite his paying of the borrowed amount, the complainant had not returned the blank singed cheque, which has been misused in the present

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Crl.L.P.439/17 - : 3 :-

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complaint, etc.

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The appellate court after re-appreciating the entire evidence found that the accused is entitled for the benefit of acquittal due to the following reasons:

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(A) The complainant has miserably failed to prove the source of his funds to justify that he had access to Rs.1,50,000/- at the time of the borrowal transaction in question, which allegedly took place on 1.5.2008. The appellate court has found that no proper materials whatsoever have been brought in evidence by the complainant to convince the court that he was having access at least to Rs.1,50,000/- as on 1.5.2008 for advancing the money to the accused at the time of the borrowal transaction in question. The Apex Court in the decision in John K Abraham v. Simon C. Abraham, reported in 2014 (2) SCC 236, has held in para 9 thereof as follows:

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“9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.”

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Similar view has been reiterated by the Apex Court in the judgment in K.Subramani v. K.Damodara Naidu reported in (2015) 1 SCC 99, etc. It is in the light of these aspects, that the appellate court has found that the complainant is not entitled to the benefit of statutory presumption under Sec. 118(a) and Sec.139 of the Negotiable Instruments Act as the

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Crl.L.P.439/17 - : 4 :-

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complainant has not been able to prove his source of funds. The said conclusion arrived at by the appellate court cannot be said to be illegal or improper. Since that is the position, the burden on the complainant was to prove the entire allegations against the accused on the basis of proof beyond reasonable doubt. Since the said strict standard has not been met, the court below is justified in holding that the accused is entitled to the benefit acquittal.

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(B) The appellate court has found that though the signature in Ext.P-1 cheque is admitted to be affixed by the accused, the handwriting portion where the name of the accused is written, is vastly different from the handwriting in the rest of the entries in Ext.P-1 cheque and that therefore, the signatory in Ext.P-1 cannot be stated to have written out the contents in Ext.P-1 and that on this basis, the contention of the accused that he had not executed Ext.P-1 cheque has to be accepted, etc.

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(C) The appellate court has also found that the complainant has not let in convincing evidence before the trial court to convince the court that as to what were the compelling circumstances, which induced the complainant to part with such a huge amount of Rs.1,50,000/- to the accused without any security, documentation, receipt and without charging any interest, etc. This has raised serious suspicion in the mind of the court about the very credibility and believability of the transaction in question. It is in the light of all these aspects, that the appellate court has come to the

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Crl.L.P.439/17 - : 5 :-

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considered conclusion that the accused is entitled to the benefit of acquittal. The said view rendered by the trial court cannot said to be branded as unreasonable or grossly perverse. Merely because another view is plausible, is no ground to interfere with the considered verdict of acquittal.

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7. In the case State of Rajasthan v. Darshan Singh @

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Darshan Lal reported in (2012) 5 SCC 789 = 2012(4) Supreme 72, the Apex Court has held as follows:-

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“In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.”

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Further, in the case Pudhu Raja and another Vs. State reported in

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(2012) 11 SCC 196 = (2013) 1 SCC (Cri) 430 , the 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 ”.

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On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion that even if appeal is entertained, there is very little scope of any interference with the conclusive

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Crl.L.P.439/17 - : 6 :-

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findings of the court below, which led to the acquittal in the impugned judgment. Accordingly, this Court is constrained to hold that the Leave Petition is bereft of any merit and accordingly, the same is dismissed.

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Sd/-

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sdk+ ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

P.v.Gangadharan v. Pramod K

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P.v.Gangadharan v. Pramod K

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