Bhooprabha Finance, Kunnamkulam v. G. Krishnakumar and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 28TH DAY OF OCTOBER 2013/6TH KARTHIKA, 1935 CRL.A.No. 583 of 2002 (E) -------------------------AGAINST THE ORDER/JUDGMENT IN ST 2387/1999 of J.M.F.C.,KUNNAMKULAM DATED 08-01-2002 APPELLANT/COMPLAINANT: -------------------------- BHOOPRABHA FINANCE, KUNNAMKULAM, REPRESENTED BY ITS MANAGING PARTNER VINOY C.PAPPACHAN, CHEMMANNOOR HOUSE, VYSERI BAZAR, KUNNAMKULAM, THALAPPILLY TALUK. BY ADV. SRI.K.P.SUDHEER RESPONDENTS/ACCUSED AND STATE: ----------------------------------- 1. G.KRISHNAKUMAR, S/O.GOPALAKRISHNAN, SUMITHA, THRISSUR ROAD, KUNNAMKULAM, THALAPPILLY TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SUNNY MATHEW R2 BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ----------------------------------Crl.A.No.583 of 2002 ------------------------------------Dated this the 28[th] day of October, 2013** ## **JUDGMENT** The above appeal is directed against the judgment dated 08/01/2002 in S.T.No.2387 of 1999 of the court of Judicial First Class Magistrate, Kunnamkulam. The present appellant is the complainant in the above case which is instituted for the offence punishable under Section 138 of the N.I. Act, but the learned Magistrate acquitted the accused, who faced the prosecution for the above offence. 2. According to the complainant, on 16/1/1997 the accused borrowed a sum of `34,000/- from the complainant firm after executing a promissory note and when the amount was demanded, the accused issued Ext.P5 cheque dated 08/03/1999, which when presented for encashment, dishonoured stating that “funds insufficient” and thereafter though a registered lawyer notice was served on the accused asking to pay the amount, no money was paid and therefore according to the complainant, the accused has committed the Crl.A.No.583 of 2002 :-2-: offence punishable under Section 138 of the N.I. Act. During the trial of the case, PW.1 was examined from the side of the complainant and produced Exts.P1 to P15 documents. Though no witness was examined from the side of the defence, Exts.D1 to 3 were produced. The trial court finally found that, the accused has rebutted the presumption and the complainant has failed to establish that Ext.P5 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt. Consequently, the accused is found not guilty and he is accordingly acquitted under Section 255(1) of Cr.P.C. Challenging the above finding and order of acquittal, the complainant therein preferred this appeal. 3. Heard Sri.K.P.Sudheer, the learned counsel for the appellant. Though notice is served on the respondent, nobody has turned up and no contention is advanced. 4. The learned counsel for the appellant vehemently submitted that the trial court came into its finding on the premises that Ext.D1 is connected with the present transaction claimed by the complainant which approach is factually Crl.A.No.583 of 2002 :-3-: incorrect since Ext.D1 is connected with another transaction in which the accused has cleared the entire liability. It is also the submission of the learned counsel that Exts.P3 and P4 and Exts.P13 and P14 would show the transaction and liability of the accused, but ignoring the above documents the trial court erroneously found that the complainant has failed to establish that Ext.P5 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt. So, according to the learned counsel, the finding of the trial court is incorrect and interference of this Court is absolutely necessary. 5. Going by the contentions referred to by the learned Magistrate in the impugned judgment it appears that, the defence taken by the accused is a total denial of the transaction and execution of Ext.P5 cheque. 6. Having regard to the facts and circumstances involved in the case especially in the light of the contentions advanced by the learned counsel for the appellant and in view of the defence taken, the question to be considered is, whether Crl.A.No.583 of 2002 :-4-: the trial court is justified in its finding and acquitting the accused and whether the appellant has succeeded in showing that the judgment impugned is perverse or illegal. The specific case of the complainant is that, the accused borrowed a sum of `34,000/- on 16/1/1997 on condition the accused would repay the amount by way of daily installment @ `100/-. But he failed to repay the installment amount regularly and thus the amount became due and on demand the accused executed and issued Ext.P5 cheque dated 8/3/1999 for an amount of `25,500/-. The learned counsel for the appellant submitted that, the above amount inclusive of the principal amount due from 28/3/1998 and 18% interest thereon for the period from 28/3/1998 to 28/2/1999. The accused took a contention to the effect that no such liability is due to the complainant. According to him, he was one of the subscribers of Kuri conducted in the complainant firm and was putting a sum of `100/- per day and while so the kuri was auctioned and got the prize amount and as demanded by the complainant he had given a blank cheque as security. It is the above version of the complainant and the Crl.A.No.583 of 2002 :-5-: accused, considered by the court below, on the basis of the available evidence and materials. 7. At this juncture, it is relevant to note that, the case of the complainant has to be disbelieved and the same ought to have been rejected for the sole reason that the complainant failed to produce the promissory note allegedly executed by the accused on 16/1/1997 when he borrowed the amount. The above position is settled as per the decision in **Shaji Vs. Ignatious** [2009(2) KLT 491], in which it is held that, when it is alleged that cheque was issued towards repayment of amount due under a promissory note, without proving execution of promissory note and the consideration for it, an offence under Section 138 of the N.I. Act cannot be made out. So, on the basis of the above decision, according to me, the present appeal is liable to be dismissed since the court below ought to have rejected the case of the complainant on that ground alone. 8. The further question to be considered is in the given facts and circumstances of the case, whether the complainant Crl.A.No.583 of 2002 :-6-: had succeeded in proving the transaction and the execution of Ext.P5 cheque as alleged by the complainant. When PW.1 was examined he had deposed before the court that, if any amount is due from the customer they will not give a new loan to the same customer without clearing the prior debts. But it is brought on record that according to the complainant the amount was given to the accused on 16/1/1997. But Ext.D1 passbook would show that the amount was due from the accused connected with the transaction covered by Ext.D1 since in that case last payment was made only on 29/4/1999, whereas in the present case, the loan was allegedly given on 16/1/1997. If the deposition of PW.1 is believed, there is no possibility for releasing another loan in favour of the accused. So, the complainant has miserably failed to prove the transaction, connected with which the debt or liability that claimed in the complaint against the accused. 9. It is also relevant to note according to the complainant the accused executed and issued Ext.P5 cheque to clear the liability connected with the loan availed by the Crl.A.No.583 of 2002 :-7-: accused on 16/1/1997. But PW.1 himself admitted that the endorsement in Ext.P5 cheque was made by his staff. So, the said admission of PW.1 itself dispelled the claim of the complainant and there is no execution and issuance of the cheque as claimed by the complainant. The above admission of the complainant would probabilise the case of the accused that the Ext.P5 cheque was obtained by the complainant as security connected with kuri transaction between the complainant and the accused. So, the accused has succeeded in rebutting the presumption in making out a probable case and therefore the trial court is absolutely correct in its finding that the defence would able to rebut the presumption under Section 139 of the N.I. Act. 10. In the light of the above discussion and in view of the evidence and materials referred to above, I find no reason to interfere with the findings of the court below and the order of acquittal recorded by it. 11. The Hon'ble Apex Court in a recent decision reported in **Mokkiah & Anr. Vs. State, Rep. by the Inspector of** Crl.A.No.583 of 2002 :-8-: ## **Police, Tamil Nadu** [2013 (1) Supreme 88] **,** has held as ## follows:- “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: ............ “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, Crl.A.No.583 of 2002 :-9-: '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 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). On examination of the facts and circumstances involved in the present case, in the light of the above decision, it can be seen that the appellant has miserably failed to show any Crl.A.No.583 of 2002 :-10-: compelling circumstances or substantial reason to interfere with the findings of the court below and to disturb the double presumption of innocence available in favour of the accused and the appellant has also failed to show that the judgment impugned is perverse or illegal one. In the result, I find no merit in this appeal and accordingly the same is dismissed. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge