B.A. Radhakrishnan v. M. Ibrahim and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 29TH DAY OF OCTOBER 2012/7TH KARTHIKA 1934 CRL.A.No. 2144 of 2004 (E) -------------------------CRA.222/2000 of ADDL.SESSIONS COURT (ADHOC I ), KASARAGOD APPELLANT/1ST RESPONDENT/COMPLAINANT:: ---------------------------------------- B.A.RADHAKRISHNAN, AGED 50 YEARS, S/O. ANANDAN, RESIDING NEAR L.V. TEMPLE HOSDURG VILLAGE, POST KASARAGOD. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS/APPELLANT-2ND RESPONDENT/ACCUSED:: ------------------------------------------------ 1. M.IBRAHIM, AGED 42 YEARS, S/O. ERUMULLAN, RESIDING AT BELLA KADAPPURAM, BELLA VILLAGE, POST KANHANGAD, HOSDURG TALUK. ## 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1- BY ADV. SRI.T.K.VIPINDAS R2- BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.A.No.2144 of 2004** ## **---------------------------------------------Dated this the 29[th] day of October, 2012** ## **JUDGMENT** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act is the appellant as he is aggrieved by the judgment of the appellate court dated 31/08/2004 in Crl.A.No.222 of 2000 of the court of Additional Sessions Judge (Ad hoc-I), Kasaragod, by which the learned Judge acquitted the accused, though initially the trial court by judgment dated 31/07/2000 in C.C.No.1357 of 1997 the court of the Judicial Magistrate of the First Class-I, Hosdurg convicted the accused. 2. The case of the complainant is that the accused owed an amount of `1,00,000/- to the complainant and for the aforesaid amount the accused has issued a cheque for `1,00,000/- dated 01/10/1997 which, when presented for encashment, dishnoured as there was no sufficient amount in the account maintained by the accused and the Crl.A.No.2144 of 2004 : 2 : accused has not repaid the amount in spite of a statutory notice served on him. Therefore, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case the complainant himself was examined as PW.1 and produced Exts.P1 to P5 documents. Though no witness was examined from the side of the accused, Ext.D1- registered notice dated 03/09/1996 was produced from the side of the defence. 3. The trial court finally came into the conclusion that the complainant has succeeded to establish the offence under Section 138 of the N.I. Act in all material aspects and accordingly the accused is found guilty under Section 138 of the N.I. Act and he is sentenced to undergo rigorous imprisonment for six months. Suffice to say no compensation is ordered by the learned Magistrate in favour of the complainant. 4. However, challenging the conviction and the judgment of the trial court, the accused preferred an appeal before the lower appellate court as Crl.A.No.222 Crl.A.No.2144 of 2004 : 3 : of 2000 and the lower appellate court by its judgment dated 31/08/2004, the finding of the trial court that the accused is guilty of the offence punishable under Section 138 of the N.I. Act is reversed and the conviction and sentence are set aside and the accused is found not guilty of the offence charged against him and accordingly he is acquitted. It is the above finding and order of acquittal are challenged in this appeal. 5. I have heard Adv.Sri.Ramesh Chander, learned counsel for the appellant and Adv.Sri.T.K.Vipindas, learned counsel for the respondent. 6. The counsel for the appellant vehemently submitted that the lower appellate court interfered with the order of conviction solely on the basis of Ext.D1notice issued by the complainant demanding the accused to pay a sum of `50,000/- connected with the dishonour of the cheque mentioned therein. According to the learned counsel, the above finding and approach of the learned Judge of the appellate court is absolutely wrong and ## Crl.A.No.2144 of 2004 : 4 : illegal, since in the present case the accused has admitted the transaction between the complainant and himself and also the execution and issuance of Ext.P1 cheque. It is also the case of the counsel for the appellant that, though the accused has raised a contention that the complainant, while receiving the amount of `50,000/- by the accused has obtained two blank cheques from the accused, the said case of the accused is not probabilised by adducing any evidence or material. Thus, according to the counsel, the appellate court ought not to have relied upon the unestablished and improbable case of the accused. 7. On the other hand, the learned counsel for the respondent/accused strenuously submitted that the complainant has miserably failed to prove the transaction under which Ext.P1 cheque reached at the hands of the complainant. According to the learned counsel, the trial court failed to see the probability of the case advanced by the defence and the case of the defence got legal Crl.A.No.2144 of 2004 : 5 : recognition only through the verdict of the appellate court and the reasoning given by the lower appellate court in interfering with the order of conviction and acquitting the accused are legal and supported by evidence and materials and such findings are not perverse or illegal to be interfered in appeal. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the respondent and I have gone through the judgment of the lower appellate court and the evidence and materials on record. 9. In the light of the rival contentions advanced by the counsel for the appellant as well as the counsel for the respondent and in the light of the evidence and materials on record, the question that emerges for consideration is whether the appellate court is correct or justified in its findings and interference with the order of conviction recorded by the trial court and further whether the appellant has succeeded in making out a Crl.A.No.2144 of 2004 : 6 : case so as to interfere with the order of acquittal recorded by the appellate court. 10. Admittedly the complainant as well as the accused are not strangers. The main dispute is with respect to the transaction connected with Ext.P1 cheque. According to the complainant the accused borrowed a sum of `1,00,000/- and he issued Ext.P1 cheque for the same amount on 01/10/1997, whereas the case of the defence is that the accused has availed a loan of `50,000/from the complainant and at that time the complainant obtained two blank cheques towards the security of that transaction and Ext.P1 cheque is one among those two cheques. Thus according to the accused there is no transaction of availing loan of `1,00,000/- from the complainant at any point of time. In the complaint preferred by the appellant regarding the transaction, there is only two sentences by which it is stated “the accused owed an amount of `1,00,000/- to the complainant. For the aforesaid amount the accused has Crl.A.No.2144 of 2004 : 7 : issued a cheque bearing No.967820 of the North Malabar Gramina Bank, dated 01/10/1997.” No particulars or materials are furnished or averments have been taken regarding the demand for loan amount and the actual payment of the loan amount. The place and date, etc. with respect to the demand of loan, payment of loan amount, execution and issuance of the cheque in question, etc. are conspicuously absent. In the chief examination as well, no details are given. The learned Judge of the appellate court has specifically found that, when PW.1 was crossexamined specifically whether he had advanced `50,000/to the accused, he had denied it. Then the learned Judge has further found that, then PW.1 was confronted with Ext.D1 notice issued by the very same complainant calling upon to pay `50,000/- covered by a cheque bearing No.9967814 drawn on the North Malabar Gramina Bank and Ext.D1 notice is dated 03/09/1996, it is thereafter the complainant constrained to admit the transaction covered by Ext.D1 notice. So the appellate Crl.A.No.2144 of 2004 : 8 : court was of the opinion that the complainant did not approach the court with clean hands. I find the above observation and the finding of the lower appellate court are absolutely correct. 11. As I indicated earlier, regarding the transaction and execution and issuance of Ext.P1 cheque, absolutely there is no averment in the complaint and there is no evidence from the side of the complainant. When the complainant produced Ext.P1 cheque, which contained the signature of the accused, which pertaining to the account of the accused, then the question is whether the accused had succeeded in rebutting the presumption. According to me, such a question does not arise in the present case, since the complainant has miserably failed to prove the transaction and issuance and execution of the cheque. However, the appellate court has undertaken an enquiry to see whether the accused has succeeded in making out a probable case. In the present case, when the complainant has no specific case as to Crl.A.No.2144 of 2004 : 9 : how Ext.P1 came into the possession of the complainant especially when the complainant failed to prove the transaction, the accused has got a specific and definite case as to how Ext.P1 cheque, bearing his signature and pertaining to his account reached at the hands of the complainant. In this juncture, the failure of the complainant to disclose the entire transaction becomes relevant. So the complainant purposefully suppressed the transaction between the complainant and the accused connected with cheque covered by Ext.D1. When he was confronted with Ext.D1, as he had no other go, admitted such transaction. As correctly observed by the learned Judge of the appellate court to rebut the presumption, the accused need not mount to the box and adduce evidence at the standard of prosecution to prove its case beyond reasonable doubt. Thus, going by the evidence and materials on record, it can be seen that, the accused has succeeded in making out a probable case and also created a serious doubt as to how Ext.P1 cheque reached Crl.A.No.2144 of 2004 : 10 : at the hands of the complainant. The reasons assigned by the lower appellate court, according to me, are absolutely correct as legal and judicial and at no stretch of imagination it can be treated as perverse or illegal. If that be so, there is no scope for any interference with the order of acquittal recorded by the lower appellate court. 12. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that, “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.” Thus, on examination of the facts and circumstances involved in the present case and in the light of the dictum laid down by the Apex Court in the decision cited supra, I Crl.A.No.2144 of 2004 **==> picture [26 x 9] intentionally omitted <==** find no reason to interfere with the findings of the lower appellate court and the order of acquittal recorded by it setting aside the conviction recorded by the trial court. Therefore, there is no merit in this appeal and accordingly the same is dismissed. Sd/- **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge