Abdul Latheef M.V. v. KHADEEJA and STATE OF KERALA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943 CRL.A NO. 1438 OF 2007 [AGAINST THE JUDGMENT IN C.C.NO.31/2006 DATED 12.3.2007 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, NADAPURAM] Crl.L.P. 278/2007 OF HIGH COURT OF KERALA ## APPELLANT/COMPLAINANT: ABDUL LATHEEF M.V. AGED 28 YEARS S/O. AMMAD, AGED 28 YEARS, MARAMVEETIL HOUSE, KUTTIYADI, CHERAPURAM P.O., VADAKARA TALUK. BY ADV ABIMALEK C.VALSON ## RESPONDENTS/ACCUSED AND STATE: 1 KHADEEJA AGED 42 YEARS W/O. HAMSA, EDAKKUDI HOUSE, P.O. OLAVILAM,PERINGADI VIA, CHOKLI, THALESSERI TALUK. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. FOR R1 BY ADV.SRI. P.P.RAMACHANDRAN FOR R2 BY ADV. SUDHEER GOPALAKRISHANAN – PP THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. No.1438 of 2007 2 ## JUDGMENT The appellant herein is the complainant in C.C.No.31/2006 on the file of the Judicial First Class Magistrate Court-II, Nadapuram. The appellant submitted the aforesaid complaint against the 1[st] respondent herein for the offences punishable under Section 138 of the Negotiable Instruments Act. ## 2. The case of the appellant/complainant is as follows: The appellant is running a jewellery shop at Thaneerpanthal. The 1[st] respondent purchased gold ornaments from the jewellery on a credit basis on 5.4.2003 based on a written agreement. The 1[st] respondent paid some amount on the date of purchase and undertaken to pay an amount of Rs.1,32,000/- within a period of three months. Later, towards payment of the said amount, the 1[st] respondent issued a cheque for Rs.1,32,000/and the agreement executed between the parties were returned to her. When the cheque was presented for encashment, the same was dishonoured on the ground of insufficiency of funds, and it also contained an endorsement that they have received an intimation that the subject cheque is lost. The appellant issued a statutory notice claiming the said amount, to which a reply was sent by the 1[st] respondent denying the said transactions. The complaint was submitted in such circumstances. CRL.A. No.1438 of 2007 3 3. In support of the case, PW1 and PW2 were examined and Exts. P1 to P7 were marked. During the trial, based on an application submitted by the 1[st] respondent, the cheque was sent for examination of a handwriting expert and Ext.X1 is the expert opinion. After the closure of prosecution evidence as aforesaid, the 1[st] respondent was examined under Section 313 of the Cr.PC and the incriminating materials brought out during the trial were put to her, which she denied. According to her, the cheque was lost from her possession, and the said fact was already informed to her bank. In defence, the 1[st] respondent got herself examined as DW1 and Exts.D1 and D2 were marked. 4. After appreciating the materials on record, the judicial First Class Magistrate Court, Nadapuram, arrived at the conclusion that the complainant failed to prove the ingredients of the offence under Section 138 of the Negotiable Instruments Act. Accordingly, the said complaint was dismissed, and the 1[st] respondent was acquitted. Challenging the aforesaid acquittal, this appeal is filed. 5. Heard Sri. Abimalek C. Valson, the learned counsel for the appellant, Sri. P.P.Ramachandran, the learned counsel for the 1[st] respondent and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the State. 6. The main contention put forward by the learned counsel for the appellant is that the finding entered into by the trial court is erroneous as the presumptions as contemplated under Sections 118(a) and 139 of the Negotiable Instruments Act were not taken into CRL.A. No.1438 of 2007 4 consideration. It was pointed out that the evidence of PW1 and PW2 would clearly indicate that the 1[st] respondent had purchased gold ornaments from the jewellery owned by the appellant based on an agreement wherein the 1[st] respondent had agreed to pay the amount of Rs.1,32,000/- within three months. According to him, the evidence of PW1 and PW2 is sufficient to prove the aforesaid transaction. In such circumstances, the trial court ought to have concluded that the statutory presumptions under the provisions stand in his favour. There are no materials to rebut such presumption, contends the learned counsel. In such circumstances, he seeks for interfering with the finding of acquittal and to allow the appeal. 7. On the other hand, the learned counsel appearing for the 1[st] respondent opposes the said contentions. According to the respondent, she has rebutted the presumption by setting up a probable defence in her favour by getting herself examined as DW1 and producing Exts.D1 and D2. It is pointed out that she had put forward a specific case to the effect that even before the date of the cheque, she issued Ext.D1 communication to the bank intimating the loss of cheque and Ext.D2 would indicate the receipt of notice by the said bank. It is further contended that the appellant could not even produce any documents pertaining to the transaction, and he could not even mention the quantity of gold purchased and the value thereof. In such circumstances, it is contended that she has rebutted the presumption, and thereupon, the burden was upon the complainant to prove the nature of the CRL.A. No.1438 of 2007 5 transaction, but he failed to do so. Therefore, no interference is warranted in the finding of acquittal by the trial court, contends the learned counsel for the 1[st] respondent. 8. The only question that arises is whether the appellant has succeeded in making out a case under Section 138 of the Negotiable Instruments Act as against the 1[st] respondent herein. It is true that in support of his case, he got himself examined as PW1 and he also examined PW2. In his deposition, PW1 stated that the cheque was issued in discharge of the liability of the 1[st] respondent incurred by her for the purchase of gold ornaments from his jewellery. Even though it was stated that the aforesaid transaction had taken place based on an agreement, the aforesaid agreement was not produced before the court. The explanation offered by the appellant is that at the time of issuance of cheque, the original of the said document was retained by the 1[st] respondent. It was also deposed by him that he was not even having a copy of the aforesaid agreement. However, during the course of the hearing of this appeal, the appellant sought to rely upon a photocopy of the agreement produced along with a petition to accept the same. However, since it is only a photocopy and the same was not produced before the court below, I am not inclined to accept the same at this stage. Moreover, the evidence of PW1 would indicate that, as per his deposition, he has not kept even a photocopy of the aforesaid documents. In such circumstances, no reliance can be placed upon Annexure A2 at this point of time. CRL.A. No.1438 of 2007 6 9. Even though PW1 and PW2 have stated about the purchase of gold ornaments from the appellant, there are no other materials on record apart from the depositions. PW1 was specifically cross examined as to the quantity of the gold ornaments claimed to have been purchased and the value thereof. He could not give any specific answer to the same. Even though he has stated that he has maintained the bills for the said transactions, he failed to produce any documents. On the other hand, the 1[st] respondent has set up a definite case that the cheque was lost from her possession and intimation in this regard had been submitted to the bank concerned by way of Ext.D1 notice dated 24.6.2003, which is prior to the date of cheque which is dated 25.7.2003. Exhibit D2 is a communication issued by the bank to the petitioner on 10.7.2003 wherein the receipt of Ext.D1 is acknowledged. Thus, it is evident that the 1[st] respondent has put forward a specific case in her defence. 10. The learned counsel for the appellant places reliance upon the decisions rendered by the Hon’ble Supreme Court in Kishan Rao v. Shankargouda [2018(3) KHC 684], Joshy P.G. v. Jose Varghese and Another [2019(4)KHC 753] and Viju V.A. v. Manappuram General Finance & Leasing Ltd. and Another [2020(6)KHC 708]. By placing reliance upon the aforesaid judgments, it is contended that there is a presumption in his favour by virtue of Sections 118 and 139 of the Negotiable Instruments Act. However, the crucial aspect to be noticed in this case is that the execution of the cheque by the 1[st] respondent was never CRL.A. No.1438 of 2007 7 admitted. Even though the signature in the said cheque was subjected to examination by a handwriting expert, no conclusion as to the veracity could be arrived at. In addition to that, as mentioned above, the 1[st] respondent set up a probable case in her defence by highlighting the case that the cheque was lost and the fact was intimated to the bank even before the date of issuance of the cheque. In the light of a probable case being advanced by the 1[st] respondent, the only conclusion possible is that the presumption favouring the appellant stands rebutted. Upon such rebuttal, the burden shifts upon the appellant/complainant to prove the transaction. 11. When I consider the materials available on record for substantiating the aforesaid transactions, apart from the evidence of PW1 and PW2, there are no other materials. The evidence of PW1 and PW2 cannot form the basis of a conviction, particularly because the same is very vague. The appellant and PW2 could not disclose any details as to the quantity of the gold ornaments purchased and even the value thereof. In such circumstances, it cannot be concluded that the appellant has discharged the burden to establish his case, which was shifted to him as a probable case was set up by the accused. It is also the case of the appellant that when the cheque was issued, and the agreement was taken back by the 1[st] respondent, PW2 was also present, and PW1 and PW2 also deposed this fact. However, I am of the view that the finding entered into by the trial court cannot be found at fault, as no evidence in support of the same is available. CRL.A. No.1438 of 2007 8 ## 12. In Chandrappa and Others v. State of Karnataka [2007 KHC ## 3199], it was observed by the Honourable Supreme Court as follows; 41. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider 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 emphasize 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 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. In this case, when I consider the materials available on record, I am of the view that there are no materials to disturb the findings entered into by the trial court. CRL.A. No.1438 of 2007 9 In such circumstances, I do not find any merit in this appeal. Accordingly, this appeal is dismissed by confirming the findings entered into by the Judicial First Class Magistrate Court-II, Nadapuram, as per the judgment dated 12.03.2007 in C.C.No.31/2006. **Sd/-** ZIYAD RAHMAN A.A. JUDGE pkk