Crl.A No.1304 of 2006

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 23[RD] DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943** ## **CRL.A NO.1304 OF 2006** **AGAINST THE JUDGMENT IN C.C.NO.613/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PERINTHALMANNA.** **Crl.L.P. 318/2006 OF HIGH COURT OF KERALA.** ## **APPELLANT/COMPLAINANT:** **C. SIVANANDAN, S/O. LATE ACHUTHAN NAIR, CHERIYIL HOUSE, ELAMKULAM AMSOM, KUNNAKKAVU DESOM, PERINTHALMANNA TALUK.** **BY ADV SRI.K.RAMAKUMAR (SR.)** ## **RESPONDENTS/STATE & ACCUSED:** - **1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 P. RAJAN, S/O. PARAMESWARAN NAIR,** **KIZHAKKEPOOZHIKUTH HOUSE, ELAMKULAM AMSOM, KUNNAKAVU DESOM.** **R2 BY ADV.K.M.SATHYANATHA MENON** - **R1 ADV. SUDHEER GOPALAKRISHANAN, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO.1304 OF 2006** -2- **ZIYAD RAHMAN A.A., J. ------------------------------------------------------Crl. Appeal No.1304 of 2006 ------------------------------------------------------Dated this the 23[rd] day of February, 2022** ## **JUDGMENT** The appellant is the complainant in C.C.No.613/2003 on the file of the Judicial First Class Magistrate Court, Perinthalmanna. This appeal is filed challenging the order of acquittal passed in the said case. 2. Initially, the appellant submitted a complaint before the police alleging offence under Section 420 of the Indian Penal Code and after an conducting investigation, the police submitted a final report referring that it is a false case. Subsequently, a protest complaint has been submitted by the petitioner herein alleging offence under Section 417 of the Indian Penal Code, on which cognizance was taken. The allegation against the 2[nd] respondent/accused is that, he has borrowed an **CRL.A NO.1304 OF 2006** -3- amount of Rs.80,000/-, from the appellant herein and when the same was demanded, the 2[nd] respondent issued a cheque for the said amount. Upon presentation of the said cheque, the same got dishonoured for the reason that the account is closed even prior to the handing over of the cheque. In support of the prosecution, he has examined PWs 1 to 4 and Exhibits P1 to P7 were marked. After closure of prosecution evidence, the 2[nd] respondent was examined under Section 313 Cr.P.C. during which he denied the transactions. As defence evidence, the 2[nd] accused produced Ext.D1 which is a claim in O.S.No.139/2003 filed by the brother of the appellant herein, for realization of the amount from the 2[nd] respondent. After considering the materials available on record, the learned magistrate acquitted the 2[nd] respondent and challenging the same, this appeal is filed. 3. Heard both sides. 4. The case of the appellant is that, the 2[nd] respondent has issued a cheque towards an account **CRL.A NO.1304 OF 2006** -4- which was already closed, in discharge of a liability, of Rs.80,000/- which he borrowed earlier. On the other hand, the case of the 2[nd] respondent is that, the 2[nd] respondent had some financial transactions with the brother of the appellant and as part of the same, he has issued two signed blank cheques in favour of the brother of the appellant. Later, the brother of the appellant filed O.S.No.139/2003 before the Sub Court, Manjeri for realization of an amount of Rs.2,50,000/-. It is contended that one of the cheques issued by the 2[nd] respondent to the brother of the appellant was misused and the aforesaid complaint was filed. 5. In order to prove that, the 2[nd] respondent has borrowed an amount of Rs.80,000/- from the appellant herein, no documentary evidence was produced by the appellant. Instead, he places reliance upon the evidence of PW4 who is claimed to have witnessed the transaction. The 2[nd] respondent handed over an amount of Rs.80,000/-. PW3 deposed that he had witnessed the incident of handing ## **CRL.A NO.1304 OF 2006** -5- over of the cheque by the 2[nd] respondent. On going through the judgment passed by the trial court, it is evident that, after elaborately considering the aforesaid evidence, the court has come to the conclusion that, the aforesaid witnesses are not believable. While arriving at the aforesaid conclusion, the court has also taken into consideration, the fact of filing civil suit by the brother of the appellant. On the basis of the aforesaid documents, a specific conclusion was arrived at, to the effect that the appellant is miserably failed in proving the transaction between the parties in issuance of the cheque. In **Chandrappa and others v. State of Karnataka [2007** ## **(4) SCC 415]** , it was held in paragraph 41 as follows:- “41. From the above decisions, in our considered view, the following general principles regarding power of appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no **CRL.A NO.1304 OF 2006** -6- 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 appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize 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 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 **CRL.A NO.1304 OF 2006** -7- court should not disturb the finding of acquittal recorded by the Trial Court.” 6. Thus going by the principles laid down in the aforesaid case, as far as the respondent No.2/the accused, who is acquitted by the trial court is concerned, he is protected by way of double presumption in his favour. The first one is based on the general principles of the criminal jurisprudence wherein the accused shall be treated as innocent unless proven guilty and the second one emerges from the finding of the trial court that, he is not guilty. It is also held that, merely because of the reason that when two views are possible, the order of acquittal need not be interfered with. 7. In this case, when I examine the materials available on record, I do not find any sufficient reason to interfere with the finding entered into by the trial court. As found by the trial court, apart from the evidence of PWs 3 and 4, there are no evidence on record indicating the transactions between the parties. The appellant has **CRL.A NO.1304 OF 2006** -8- also not explained the source from which he has raised the said amount. The evidence of PW3 and PW4 were already found to be not reliable by the trial court, who had the occasion to examine the demeanor of the witnesses while they were being examined. In such circumstances, in the absence of any positive evidence to take any different view, this appeal is only to be dismissed. In the result, I do not find any merit in this appeal and it is hereby dismissed by confirming the finding of the acquittal passed by the Judicial First Class Magistrate Court-I, Perinthalmanna in C.C.No.613/2003. Sd/- **ZIYAD RAHMAN A.A. JUDGE** bpr