A.P.VASU and Others v. P.K. BALAKRISHNAN and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 21ST DAY OF MARCH 2014/30TH PHALGUNA, 1935 CRL.A.No. 991 of 2009 ( ) -------------------------- ST 2249/2006 of JUDICIAL FIRST CLAS MAGISTRATE COURT-I,KOTTAYAM APPELLANT(S)/COMPLAINANT: --------------------------------------------- 1. A.P.VASU, (DIED) KOCHUPARAMBIL KIZHAKKETHIL HOUSE, S.H.MOUNT P.O. KOTTAYAM-6. - (*)ADDITIONAL APPELLANTS: 2. T.R.SAROJINI, W/O.LATE A.P.VASU, AGED 57 YEARS, KOCHUPARAMBIL KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., PERUMBAIKAD VILLAGE, KOTTAYAM DISTRICT. 3. SAVIN V.VASU, S/O.LATE A.P.VASU, AED 23 YEARS, KOCHUPARAMBIL KIZHAKKETHIL HOUSE, S.H.MOUNT P.O., PERUMBAIKAD VILLAGE, KOTTAYAM DISTRICT. - (*) ARE IMPLEADED AS ADDITIONAL APPELLANTS AS PER ORER DATED 3/3/2014 IN CRL.M.A.NO.1224/14 IN CRL.A.991/2009. BY ADV. SRI.PAULY MATHEW MURICKEN RESPONDENT(S)/ACCUSED AND STATE: ---------------------------------------------------------------- 1. P.K.BALAKRISHNAN, POORAKULAM HOUSE, (NOW AT THAIKKADU HOUSE), MALLOOSERRY P.O., KOTTAYAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. V.H.JASMINE R1 BY ADV. SRI.SIBY CHENAPPADY R1 BY ADV. SRI.C.JOSEPH JOHNY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.991 of 2009 -------------------------------------Dated this the 21[st] day of March, 2014.** ## **JUDGMENT** Appeal filed under Section 378 of the Code of Criminal Procedure Code (for short, “Cr.P.C.”) 2. Appellant was aggrieved by the dismissal of his complaint filed under Section 138 of the Negotiable Instruments Act (for short, “Act”) and the consequential acquittal of the 1[st] respondent/accused. Pending the appeal, the appellant/complainant died. His legal heirs were impleaded as additional appellants. Case in the complaint, in short, is that the accused issued a cheque drawn on his banker for `70,000/- to discharge a legally enforceable debt towards the complainant. When the cheque was presented for collection, it was dishonoured due to insufficiency of funds in the account of the accused. Lawyer notice was issued as per proviso (b) to Section 138 of the Act. In spite of receipt of notice, the accused did not even sent a reply. Thereafter, the prosecution was launched. At the trial, two witnesses were examined on the side of the complainant. Exts.P1 to P6 marked. 3. Heard the learned counsel for the appellant and the learned counsel for the accused/respondent. Learned Public Prosecutor is also 2 Crl.Appeal No.991 of 2009 heard. 4. Learned Magistrate after analysing the evidence found that the complaint and the affidavit filed in lieu of chief examination are bereft of details regarding the alleged advancement of amount. Further, it was found that the case set up by the complainant is highly improbable. Court below noticed that going by the facts asserted by PWs 1 and 2, it was highly improbable to think that there would have been advancement of amount as claimed by the complainant and issuance Ext.P1 cheque in discharge of that liability. 5. PW1 is the complainant. He testified that he was a trade union worker. He was functioning as the Secretary of the Kerala Artisans Union. Further, he was a State Committee Member in Artisans Federation of India. Even though he initially stated that Artisans Federation of India is an apolitical organisation, later, in cross-examination, it has come out in evidence that there was a split in the organisation on account of political differences in opinion. Admittedly, the complainant and the accused belonged to two fractions in the organisation. In the complaint, as mentioned by the trial Judge, no definite case as to when money was borrowed, from where it was borrowed, etc. are completely absent. Even in the affidavit filed in lieu of chief examination, no details regarding the lending was mentioned. PW1 at the time of evidence contended that 3 Crl.Appeal No.991 of 2009 money was advanced to the accused from the Kottayam Office of the Kerala Artisans Union. PW1 in cross-examination, stated that the accused and himself were friends for long years. However, he was not aware as to whether the accused was in financial difficulties. It is interesting to note that PW1 answered in cross-examination that he is a neighbour of the accused. Learned counsel for the accused contended that this case was developed by the complainant without any foundation in the complaint. He would also contend that had the accused and the complainant were friends and neighbours, there was no occasion for the accused to borrow money from the office of the organisation, where they were not sailing together in the same boat. Accused developed a case in cross-examination that while he was working as District President of Artisans Federation of India, he had kept some signed blank cheques in the drawer and it was misused by the complainant. However, there is no definite evidence to accept the case of the accused. But, learned counsel for the accused pointed out the difference in the writings in Ext.P1 cheque and the signature of the accused. Apparent tenor of the cheque will show that it was filled up with one handwriting and the signature of the accused is different from other writings. On this basis, learned counsel for the accused would contend that the accused did not properly execute the cheque. The legal aspect we shall consider in the succeeding paragraphs. 4 Crl.Appeal No.991 of 2009 6. The complainant examined PW2 to strengthen his case. She was a co-worker in the organisation. She stated that she was a witness for the advancement of amount by the complainant to the accused. After 3- 4 months, the accused came to the office of the organisation and issued Ext.P1 cheque. It is interesting to note that none of these aspects have been pleaded in the complaint. In cross-examination, PW2 admitted that the accused and the complainant, though worked in one organisation, were followers of different political ideologies. Evidence of PW2 is that the money transaction was during the working hours and she alone was present at the time of transaction. Court below found that without any document, nobody would have advanced `70,000/- in the normal human conduct. Further, the difference in handwriting seen on the cheque was also commented upon by the court below. 7. Learned counsel for the accused contended that the court below has taken a correct view on the basis of the evidence adduced in the case. Large volume of case law has been cited by the learned counsel for the appellant to canvass various legal positions. It is settled law that the appellate court shall consider whether the view taken by the trial court on appraisal of evidence is a possible or probable view. If the trial court's view is also legally sustainable and probable on the basis of evidence adduced in the case, the appellate court cannot substitute its view. Learned counsel 5 Crl.Appeal No.991 of 2009 for the accused placed reliance on **Kamalammal v. Mohanan (2006(3) KLT 972)** to contend that the complainant should establish his case by pleading in the complaint and by adducing evidence to support the pleading. It is also argued by the learned counsel for the accused that a case cannot be built up on presumption. In the above mentioned decision, learned Single Judge of this Court held that there cannot be a presumption under Section 139 of the Act that the cheque in question was issued by the accused. The distinction between 'issuing a cheque' and 'executing a cheque' was considered elaborately in that decision. Drawing support from **M.S.Narayana Menon v. State of Kerala ((2006) 6 SCC 39)** , it was contended that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. The learned Single Judge of this Court in **Gemini v. Chandran (2007 (2) KLT 439)** held as follows: _“Even on a plain reading of section 139 of_ _the Act, it cannot be said that the mere execution/drawing of the cheque (by admission or otherwise) will automatically lead to the presumption that the cheque is drawn for the discharge of a debt or other liability. On the other hand, it is clear from section 139 that to draw the presumption under the said section, certain basic factors referred to in the section are to be_ 6 Crl.Appeal No.991 of 2009 ## _established.”_ Finally, the learned counsel for the accused relied on a decision of the Apex Court in **John K.Abraham v. Simon C.Abraham (2014 (1) KLT 90)** . The principle of law stated therein is as follows: _“.............. It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had 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.”_ 8. Learned counsel for the complainant places reliance on the ## decision in **Jyothi Prasad Bhat (Dr.) v. K.Sundara Rajan and another** **(2013 (3) KHC 141)** to raise a contention that when the evidence of the complainant is found to be credible and trustworthy, it is sufficient to conclude that the cheque was duly executed. Here, in this case, the question is not only about doubtful execution, but also doubtful advancement of amount and issuance of Ext.P1 cheque in discharge of that liability. Court below appreciated the evidence and found out the Crl.Appeal No.991 of 2009 7 inherent improbabilities in the case of the complainant. I do not find any reason to hold that the view taken by the court below is an impossibility or perversity. Therefore, by applying the rule that the appellate court will be loath in interfering in such matters, I find that the appeal is devoid of merit. In the result, the appeal is dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**