Baby P.George v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935** **CRL.A.No. 624 of 2002 ( ) --------------------------** **AGAINST THE JUDGMENT IN CC 159/2002 of C.J.M., KOTTAYAM, DATED 04.06.2002** **APPELLANT(S)/COMPLAINANT: -------------------------** **BABY P.GEORGE, PULIKKATTU MADATHIL HOUSE, PERUMBAIKADU P.O., KOTTAYAM - 28.** **BY ADVS.SRI.T.P.VARGHESE SRI.ANIL NAMBOODIRI** **RESPONDENT(S)/STATE AND ACCUSED: --------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. K.V.KURIAKOSE, S/O.VARGHESE, CASHIER/CLERK, THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD, PATHANAD BRANCH, KANGAZHA-686 541, RESIDING AT KAKKAPARA HOUSE, POOVATHOPPU KARA, MANIMALA VILLAGE.** **BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH ADVS.SRI.KOSHY GEORGE SRI.GEORGE ZACHARIAH ERUTHICKEL** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.A.No.624 of 2002** **------------------------------Dated this the 4[th] day of December, 2013.** ## **J U D G M E N T** Challenging the judgment dated 4.6.2002 in C.C.No.159/02 of the court of Chief Judicial MagistrateKottayam, the complainant therein preferred this appeal as the accused therein who faced the prosecution for the offence punishable under Section 138 of the N.I. Act is acquitted under section 255(1) of Cr.P.C. 2. The case of the appellant/complainant is that the respondent/accused borrowed an amount of `50,000/- and towards the partial discharge of that liability, the accused issued a cheque dated 20.4.1999 for an amount of `25,000/-, which when presented for encashment, dishonoured for want of sufficient fund and the accused has not paid the amount covered by the dishonoured cheque in spite of a statutory notice served on him and **Crl.A.No.624 of 2002** 2 thus the accused has committed the offence punishable under section 138 of the N.I. Act. By raising such an allegation, the complainant approached the court below by filing a complaint, upon which cognizance was taken for the said offence and instituted C.C.No.159/02. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P6 documents. From the side of the defence, Dws.1 to 3 were examined and Exts.D1 to 4 were produced. The trial court finally found that the accused is not guilty of the offence under section 138 of the N.I. Act and accordingly he is acquitted under section 255 (1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. Heard both the counsel for the appellant and the respondent/accused. 4. The learned counsel for the appellant vehemently submitted that the accused has admitted his signature that seen in Ext.P1 cheque, but the trial court on flimsy ground and admitting the false version of the defence, has found **Crl.A.No.624 of 2002** 3 against the complainant and acquitted the accused. On the other hand, the learned counsel for the respondent/ accused submitted that the accused has succeeded in rebutting the presumption by adducing evidence which was duly accepted by the trial court and therefore no interference is warranted. 5. I have carefully considered the submissions made by the learned counsel for the appellant and the respondent and I have gone through the evidence and materials on record. 6. In the light of the evidence and materials on record and in view of the rival contentions, the question to be considered is whether the trial court is justified in its finding and acquitting the accused, and the further question to be considered is whether the appellant has succeeded in making out a ground to interfere with the order of acquittal recorded by the trial court in favour of the accused. A Division Bench of this Court in **Devan Vs. Krishna Menon** **Crl.A.No.624 of 2002** 4 **[2010(2) KLT 397]** has held that, “Once the signature, execution and handing over of the cheque is satisfactorily proved, presumption under Section 139 would come into play and remain there until the accused discharge the burden by inferior standard of preponderance of possibilities and probabilities as applicable in civil law.” In view of the decision of the Division Bench of this Court, in the present case, it is to be considered that, whether the complainant has succeeded in proving the execution and handing over of the cheque in question with satisfactory evidence. Though I have repeatedly gone through the averments in the complaint, I have miserably fail to find out even the date of the transaction, under which the amount was allegedly given to the accused. Neither in the complaint nor during his chief examination, PW1 has specifically alleged the date of borrowal allegedly made by the accused. Suffice to say, no document was produced to show the above transaction. It is also relevant to note that, either in the complaint or in the evidence of PW1, the details **Crl.A.No.624 of 2002** 5 of the transaction, the date on which the amount was given to the accused, the place at which the said transaction was taken place etc., absolutely there is no evidence. It is also relevant to note that, regarding the execution and issuance of the cheque also, the complainant has no specific and consistent case. What stated in the complaint is that, when the amount was demanded by the complainant, the accused issued a cheque bearing no.839871 dated 20.4.1999 for an amount of `25,000/-. The date on which the cheque was executed and the place at which the cheque was executed and issued, absolutely there is no averment and evidence. So, to prove the transaction and the execution and issuance of the cheque, absolutely there is no evidence. The only factum available in favour of the complainant is that, Ext.P1 cheque contained the signature of the accused. In this juncture it is relevant to note that, there is no evidence regarding the execution and issuance of the cheque and therefore the contention advanced by the defence, that the details in Ext.P1 cheque was incorporated by the **Crl.A.No.624 of 2002** 6 complainant, cannot be ruled out, particularly when the ink used for putting the signature and for incorporating the other details are different. So, it cannot be said that he complainant has succeeded in establishing the execution of the cheque. As I indicated earlier, there is no evidence about the transaction. In this connection it is relevant to note that, the present case is with respect to Ext.P1 cheque. In view of the evidence of PW1, it can be seen that the accused has allegedly issued two cheques, one bearing the date 20.4.1999, ie., with respect to the present cheque and the other cheque bears a date 20.10.1999. No explanation is offered by the complainant for issuing two cheques bearing two different dates and that too with a span of 6 months' time. So, the entire case of the complainant rendered as doubtful. Hence, on examination of the facts and circumstances involved in the case and the evidence on record, according to me, the complainant is not entitled to get the presumption as envisaged under section 139 of the N.I. Act, particularly in view of the decision cited supra. **Crl.A.No.624 of 2002** 7 7. However, it is relevant to note that, as I indicated earlier, Ext.P1 cheque contained the signature of the accused and the said signature is not disputed by him. But the accused has got a definite case as to under what circumstances he put his signature in Ext.P1 cheque and how the same happened to be in the hands of the complainant. To prove the above facts, the accused himself mounted to the box and got examined as DW1 and besides him, Dws.2 and 3 were also examined. The accused has also produced Exts.D1 to D4 documents. The learned Magistrate has elaborately considered the above defence evidence and found in favour of the accused/defence. According to the defence, the complainant and the brother in law of the accused and the accused himself have invested money in the quarry business operated by the brother in law of the accused and when the said concern was resulted in loss, the complainant demanded back the money invested by him and one Jacob Thomas, and when the brother in law of the accused failed to pay the amount, the said Jacob Thomas, **Crl.A.No.624 of 2002** 8 who is the cousin of the complainant, and the complainant himself have filed a complaint before the Superintendent of Police, Kottayam, and the said complaint was transmitted to the Circle Inspector of Police, Manimala, wherein the parties to the said complaint and the accused were summoned. According to the accused, at the instance of the Circle Inspector of Police, Manimala, he was forced to hand over the blank cheques to the complainant and thus according to the accused, on 20.4.1999 he had given another two cheques to the complainant on 20.10.1999. According to DW1, though he had separate account in his bank, as threated by the CI of Police, a new account was opened. It is also the case of the defence that subsequently the entire dispute was settled between the complainant and the brother in law of the accused in the office of the CPI(M) area committee at Kanjirappally in the presence of DW3 and an agreement was arrived into, ie., Ext.D3, which was signed by the complainant and the brother in law of the accused. In this juncture it is relevant to note that when **Crl.A.No.624 of 2002** 9 PW1 was cross examined about the filing of the complaint before the Police and the settlement arrived in the office of CPI(M) area committee at Kanjirappally, he firmly denied all the above suggestions. But the defence evidence positively establishes the defence version about the filing of Police complaint and the subsequent settlement arrived as per Ext.D3. The learned counsel for the appellant argued that though it is alleged that the cheques in question were obtained forcefully and under threat from the accused, no complaint was filed before the Higher Police Authorities. According to me, the above contention is untenable. 8. The Honourable Apex Court reported in **Krishna Janardhan Bhatt Vs. Dattatraya Hegde [2008(1) KLT** **425(SC)]** has held that, “An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records.” It is further held that, “Standard of proof on the part of an accused and that of the **Crl.A.No.624 of 2002** 10 prosecution in a criminal case is different”, and it is also held that, “Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.” On examination of the present case, in the light of the above decision it can be seen that it has already brought on record that the complainant has miserably failed to give the date of the transaction under which the alleged amount was obtained by the accused and the execution of the cheque and issuance of the same. By adducing the evidence from the side of the accused, the defence has succeeded in making a probable case as to how Ext.P1 cheque containing the signature of the accused happened to be reached in the possession of the complainant. The complainant in his **Crl.A.No.624 of 2002** 11 complaint never disclosed any transaction in which the complainant and the accused invested money other than the loan allegedly availed by the accused from the complainant. The complainant has also made no reference as to the summoning of the complainant and the brother in law of the accused to the Police Station, in the complaint, in spite of the fact that the accused has set forth such a case when he issued Ext.D1 reply to the complainant. Thus it can be seen that the learned Magistrate, while considering the case, particularly in paragraph 13 it is found that, when the complainant was examined, he deposed before the court that the money was borrowed towards the middle of November 1999 and there is no specific allegation with regard to the date of borrowal either in the complaint or in the chief examination of PW1. During the cross examination of PW1, he stated that the money was advanced without any documents in November 1998. But it has brought on record that the complainant had launched a petition to the Superintendent of Police, Kottayam, which was forwarded to **Crl.A.No.624 of 2002** 12 the Circle Inspector of Manimala Police Station and on 20.10.1998 they were summoned to the Circle Inspector of Police, Manimala Police Station, which was admitted by PW1. On the basis of the above facts, the learned Magistrate held that in the absence of any document, the case of the complainant that, the accused borrowed money from him, cannot be believed. So going by the findings of the court below, it can be seen that all such findings are based upon available evidence and materials and circumstances involved in the case and therefore even if no duty is cast upon the accused to rebut the presumption, since the complainant did not succeeded in proving the execution and issuance of the cheque in the given facts and circumstances of the case, by adducing defence evidence and out of the materials and evidence brought on record, the accused has succeeded in rebutting the presumption. Therefore, I find no reason to interfere with the findings of the court below. 9. The Honourable Apex Court in the decision in **Crl.A.No.624 of 2002** 13 ## **Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88],** it has held that, “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 **Crl.A.No.624 of 2002** 14 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. (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 **Crl.A.No.624 of 2002** 15 substantial reasons to disturb the double presumption of innocence secured by the respondent/accused as per the impugned judgment. Therefore, no interference is 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