Chacko K.J v. Vinod K.J and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939** **Crl.L.P..No. 452 of 2017 () ----------------------------** ## **S.T.NO.28/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KANNUR-IV.** **......** ## **PETITIONER/COMPLAINANT :** **------------------------** **CHACKO K.J, S/O.JOSEPH, AGED 52 YEARS, KALAPURACKAL HOUSE, CHEMPANTHOTTY P.O., TALIPARAMBA TALUK, KANNUR DT.** **BY ADVS.SRI.K.S.PRAVEEN SMT.P.SHEEBA** ## **RESPONDENTS/ACCUSED & STATE :** **-----------------------------** **1. VINOD K.J, AGED 36 YEARS, S/O.JOSEPH, KALLUNGAMACKAL, CHEMPANTHOTTY P.O., NEDIYENGA, KARAYATHUMCHAL TALIPARAMBA TALUK, KANNUR DT. - 670501. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** **R1 BY ADV. SRI.M.SASINDRAN R2 BY GOVERNMENT PLEADER SRI.JESTIN MATHEW** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 10-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ALEXANDER THOMAS, J. ----------------------------- Crl.L.P.No.452 Of 2017 --------------------------------- Dated this the 10th day of November, 2017. ## J U D G M E N T This is an application seeking special leave of this Court under Sec.378(4) of the Cr.P.C to impugn the judgment dated 18.4.2017 of the trial court concerned (Judicial First Class Magistrate Court, Kannur), whereby the accused in S.T.No.28/2017 has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. The petitioner herein is the complainant and the 1st respondent herein is the accused in the above said S.T.No.28/2017. Ext.P-1 dishonoured cheque dated 20.1.2014 is for Rs.6,95,000/-. 2. Heard Sri.K.S.Praveen, learned counsel appearing for the petitioner (complainant), Sri.M.Sasindran, learned counsel appearing for R-1 (accused) and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State. 3. The gist of the allegations of the complainant is to the effect that on 10.10.2013 the accused had borrowed an amount of Rs.6,95,000/- from the complainant by promising to return the same by ::2:: Crl.L.P.No.452 Of 2017 20.1.2014 and on the same day the accused had issued a post dated cheque dated 20.1.2014 for an amount of Rs.6,95,000/- for repayment of the above said borrowed amount. That the cheque when presented on 23.1.2014 for collection, was dishonoured as per Ext.P-2 bank memo dated 23.1.2014 and thereafter the complainant had sent Ext.P-3 statutory demand notice dated 28.1.2014 under Sec.138 proviso (b) of the N.I. Act, calling upon the accused to pay the amount covered by the cheque within 15 days from the date of receipt of the notice. The said notice was duly sent to the accused as per Ext.P-4 and the said registered notice was returned unclaimed and thereafter, the complainant, after adhering to the requisite formalities had instituted the instant complaint which resulted in the conduct of the trial. During trial, the complainant has himself examined as PW-1 and marked Exts.P-1 to P-5 documents. The defence has not adduced any oral or documentary evidence. The main defence taken up by the accused was that the accused never had any transaction with the complainant in the manner alleged in the complaint and that he had never voluntarily executed Ext.P-1 cheque as alleged in the complaint and further that the accused on an earlier occasion had purchased rubber on credit from the complainant and at that point of time he was constrained to give ::3:: Crl.L.P.No.452 Of 2017 one blank cheque as security and that the said cheque has been misused for the institution of the present complaint, etc. 4. The trial court has come to the considered conclusion that the accused is entitled for the benefit of acquittal in view of the following reasons: (A) The complainant has miserably failed to prove the source of funds to lend such a huge amount of Rs.6,95,000/-, which had allegedly taken place on 10.10.2013. Except the oral assertions of PW-1 that he is having agricultural income, no cogent and convincing evidence has been let in by the complainant before the court below to satisfy the said court that the complainant has access to funds to the tune of Rs.6,95,000/- for making borrowal transaction as on 10.10.2013. PW-1 has also deposed that he had withdrawn an amount of Rs.6,95,000/- from the bank on 10.10.2013. However, no documentary evidence either from the bank or from any other source has been produced in this case. The source of income of the complainant was not disclosed either in the complaint or in the proof affidavit. It is only when the accused had challenged the source by confronting PW-1 during cross-examination that the complainant has chosen to orally give his version that he had agricultural income and ::4:: Crl.L.P.No.452 Of 2017 that he had withdrawn the amount from the bank, etc. The Apex Court has held in John K.Abraham v. Simon C.Abraham, reported in (2014) 2 SCC 236, that in order to draw presumption under Secs.118(a) and 139 of the N.I. Act, the burden is quite heavy upon the complainant to prove that he had requisite money to advance the accused at the relevant time of the transaction in question. Similar view has also been taken by the Apex Court in K.Subramani v. K.Damodara Naidu, reported in (2015) 1 SCC 99 and K.Prakashan v. P.K.Surenderan, reported in (2008) 1 SCC 258. It is in the light of these aspects, that the trial court has found that the complainant is not entitled to draw the benefit of statutory presumption under Secs.118(a) and 139 of the N.I. Act as he has miserably failed to prove the source of funds in respect of the transaction in question. (B) The trial court has found that no convincing evidence has been let in before the court to show as to what are the justifying circumstances which induced the complainant to part with such a huge amount of Rs.6,95,000/- without any receipt, security and without charging any interest, etc. The trial court found that the case projected by the complainant is thus tainted by grave suspicions and doubts about the very believability and credibility of the case projected by the ::5:: Crl.L.P.No.452 Of 2017 complainant. The Apex Court in Vijay v. Laxman & anr., reported in (2013) 3 SCC 86, has held that when the very case set up by the holder of a cheque itself is dubious then the initial presumption under Secs.118(a) and 139 of the Negotiable Instruments Act itself comes to an end. This Court in Bhaskaran Nair v. Mohanan, reported in 2009 (2) KLT 897, has held that where the materials produced disclose suspicious circumstances surrounding the transaction and if no satisfactory explanation is tendered by the complainant to explain such circumstances, no conviction is legally permissible solely banking upon the statutory presumption and the court is expected to examine whether the transaction covered by the cheque is genuine and bonafide, etc. Since the complainant is not entitled for the statutory benefit in the facts of this case, due to aforementioned reasons, the complainant was under the heavy burden to prove his case beyond reasonable doubt. The trial court has found that in the instant case the complainant has failed to adduce convincing evidence before the trial court so as to assure the trial court that evidence before the court is safe and reliable, so as to warrant the conviction of the accused. (C). The trial court after meticulous appreciation of the evidence on record has found that the very version projected by the ::6:: Crl.L.P.No.452 Of 2017 complainant regarding the execution and issuance of the cheque suffers from grave contradictions and improbabilities and therefore the trial court has found that there is no convincing and safe evidence before the trial court to prove the crucial fact that the accused has duly executed and issued the cheque in favour of the complainant as alleged in the complaint. The complainant has no case in the complaint that the accused had executed Ext.P-1 cheque and handed over to him. Later, in the proof affidavit he had alleged that the accused has put his signature in Ext.P-1 cheque. The trial court has found that on a perusal of Ext.P-1 cheque would go to show that the handwriting and the pen used for putting signature in Ext.P-1 are quite different from the handwriting and pen used for writing all other entries in Ext.P-1. In cross-examination, the complainant has deposed by stating that the accused has brought a cheque with all entires written on it and that he had simply put his signature in the presence of the complainant. At another stage of cross-examination, it is admitted by PW-1 that time and duration of the loan was decided at the time of lending the money. The transaction and borrowal took place on 10.10.2013 and it is also deposed by PW-1 that on the same day the accused had handed over Ext.P-1 cheque as a post dated one. In these circumstances, the trial ::7:: Crl.L.P.No.452 Of 2017 court has found that ordinarily the accused before reaching the residence of the complainant could not be aware about the time and duration of the loan and therefore the case projected by PW-1 that the accused came with fully written cheque without signature thus suffers from grave suspicion and improbability. It is in the light of these aspects, the trial court found that the very case set up by the complainant regarding the execution and issuance of cheque by the accused is not believable and credible version. 5. That, at any rate, the evidence before the trial court was not found to be safe and reliable for convicting the accused. It is in the light of these aspects, that the court below has found that the accused is entitled for the benefit of acquittal. The said considered findings of facts cannot be said to be vitiated by perversity or illegality. Merely because another view is plausible, it is not a ground to interfere with the findings of acquital. 6. In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in (2012) 5 SCC 789 = 2012(4) Supreme 72, the Apex Court has held as follows:- > “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.” ::8:: Crl.L.P.No.452 Of 2017 Further, in the case Pudhu Raja and another Vs. State reported in (2012) 11 SCC 196 = (2013) 1 SCC (Cri) 430, the Apex Court has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. In the light of the legal principles laid down by the Apex Court, this Court is of the view that even if the the appeal is entertained there is not much scope to overturn the judgment of acquittal rendered by the trial court. Accordingly, this Court is constrained to dismiss the leave petition and it is so ordered. ALEXANDER THOMAS, Judge. bkn/-