Joseph Hube v. K. M. Sivan Chettiyar and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 17TH DAY OF OCTOBER 2013/25TH ASWINA, 1935 CRL.A.No. 2090 of 2008 ----------------------- [AGAINST THE JUDGMENT IN CC 650/2006 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR DATED 08-02-2008] APPELLANT(S)/COMPLAINANT: ------------------------- JOSEPH HUBE, S/O JOSE KACHAPPILLY HOUSE, THURUTHIPPURAM, PUTHENVELIKKARA. BY ADV. SRI.N.HARIDAS RESPONDENTS(S)/ACCUSED AND STATE: --------------------------------- 1. K.M.SIVAN CHETTIYAR, S/O MUTHU CHETTIYAR KUNNATHUKIZHAKKETHIL, PELA P.O., MAVELIKKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM. R1 BY ADV. SMT.ASHA ELIZABETH MATHEW BY ADV.SMT.RINNY STEPHEN CHAMARAPARAMBIL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 2090 of 2008 A** **----------------------------------------** Dated this the 17[th] day of October, 2012 ## **J U D G M E N T** Challenging the judgment dated 8.2.2008 in C.C.No.650 of 2006 of the court of the Judicial First Class Magistrate,Kodungallur, which is a case instituted upon a complaint preferred by the appellant for the offence punishable under Section 138 of the N.I.Act, the complainant therein preferred this appeal as the trial court acquitted the accused. 2. The case of the complainant is that the accused issued a cheque dated 3.5.2006 for `4,20,000/- to the complainant to discharge the legally enforceable debt due from the accused towards the complainant and when the said cheque was presented for encashment, it was dishonourd for the reason 'the account closed' due to inoperation of the account. According to the complainant, though notice was caused to be sent to the accused demanding the return of Crl.A.No.2090 of 2008 **==> picture [21 x 9] intentionally omitted <==** the amount covered by the dishonoured cheque, the accused has not paid the amount, in spite of the fact that he received the statutory notice and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. 3. During the trial of the case, the complainant himself has got examined as PW1 and produced Exts.P1 to P14. The accused himself mounted to the box and got examined as DW1 from the side of the defence and marked Exts.D1 to D3. The trial court finally found that there is no evidence to show that Ext.P1 cheque was issued for the discharge of a legally enforceable debt and accordingly, held that the accused has not committed the offence punishable under Section 138 of the N.I.Act and consequently, he is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 4. I have heard Sri.N.Haridas, learned counsel for the appellant and Advocate Smt. Rinny Stephen Champarambil, counsel Crl.A.No.2090 of 2008 :-3-: appearing for the first respondent/accused. 5. Learned counsel for the appellant vehemently submitted that the appellant/complainant has succeeded in establishing the transaction between the complainant and the accused and to certain extent, the accused has also admitted his liability. According to the learned counsel for the appellant, Exts.P8 to P14 documents were the which documents are produced by appellant/complainant, maintained and kept by the complainant during the regular course of his business, but in spite of that, the learned Magistrate went wrong in holding that the complainant has not succeeded in proving that the cheque was issued towards the discharge of any liability. 6. Per contra, the learned counsel for the defence submitted that the accused was an employee of the complainant and he was working on commission basis and thus, the accused has carried out the sale of manure supplied by the complainant only upto 16.9.2001 and the cheque in question was given as a security when the accused was Crl.A.No.2090 of 2008 **==> picture [21 x 9] intentionally omitted <==** appointed as employee of the complainant. According to the learned counsel, the court below, after due appreciation of the evidence and materials on record, has correctly held that the complainant has miserably failed to prove the due execution and issuance of the cheque towards the discharge of any liability due to the complainant and therefore, no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned counsel for the respondent/accused. I have perused the evidence and materials on record. 8. The case of the appellant/complainant is that Ext.P1 cheque dated 3.5.2006 for an amount of `4,20,000/- was issued by the accused towards the discharge of his liability due towards the complainant. This is the sum and substance of the averment of the complainant in the complaint as well as in Ext.P4 notice and also in the chief affidavit. Suffice to say, either in Ext.P4 notice or in the Crl.A.No.2090 of 2008 :-5-: complaint or in the chief affidavit, the complainant has no specific case about the transaction under which the liability was created and towards the discharge of which, Ext.P1 cheque was issued. Relying on the decision of the Division Bench of this Court reported in **Devan** v. **Krishna Menon** [2010(2) KLT 397], the learned counsel for the appellant vehemently submitted that the details of the transaction connected with Section 138 need not be stated in a complaint. According to me, the above decision is not applicable in view of the facts and circumstances involved in the present case. In the above case, particularly paragraph 27, the Division Bench has held as follows:- “............. _.The nature of the transaction is now clear from the evidence of the complainant (PW1) and Exts.D1 to D17. In any view of the matter, notwithstanding the innocuous inconsistency between the real nature of the transactions and the pleadings in the complaint and the notice, we are unable to agree that the burden on the accused under Section 139 of the N.I.Act has been discharged.”_ Thus, from the above passage itself, it is crystal clear that there were Crl.A.No.2090 of 2008 :-6-: sufficient pleadings in the complaint and in the notice, but, according to the Division Bench, there was some inconsistency between the pleading in the complaint and in the statutory notice, which is innocuous in nature. But, in the present case, the situation is entirely different. As I indicated earlier, what is stated in Ext.P4 notice as well as in the complaint, is to the effect that Ext.P1 cheque was issued by the accused towards the discharge of a legally enforceable debt. Absolutely, there is no specific pleading regarding the nature of the transaction to show the legality and enforceability of the debt or liability. There is no whisper in the statutory notice or in the complaint or in the chief affidavit as to whether the debt or liability is connected with any hand-loan or connected with any bank or commercial transaction or connected with any contractual obligation. In this juncture, it is relevant to note that even in Ext.P7 reply, by utilising the first opportunity, the accused has set up his defence to the effect that he was an employee of the complainant and the cheque in Crl.A.No.2090 of 2008 :-7-: question was one among other documents obtained by the complainant while he was appointed as the employee of the complainant. Even though such a reply notice was received by the complainant in advance to the filing of the complaint, the complainant miserably failed to advert to and plead the exact transaction under which the accused is said to have issued Ext.P1 cheque. There is no denial by the complainant that the accused was appointed by him on commission basis. During the trial of the case, though the complainant, who is examined as PW1, has filed chief affidavit in lieu of his chief examination, the same is the position. There is no whisper in the chief affidavit about the transaction and also there is no denial about the appointment of the accused as his employee. Suffice to say, no datas are mentioned, even in the chief affidavit, which led to the issuance of Ext.P1 cheque. Only during the cross-examination, the complainant has stated that the amount was connected with the purchase of manure and it is stated that the accused had purchased Crl.A.No.2090 of 2008 :-8-: manure from 1999 to 2006 and there were documents in his office. The complainant in an unequivocal language, admitted that “ D1 പ�ക�ര� 2,29,791/- ആണ ക�ട�ന�ളത എനത ശര�യ�ണ.” But, he denied the suggestion that there was no further business in manure between the complainant and the accused. The accused has also made several suggestions with respect to the endorsement contained in Ext.P1 cheque to canvass the position that it was not done by the accused. 9. In this juncture, it is relevant to note that the crossexamination of the complainant was conducted on 19.11.2007 and thereafter, at the instance of the complainant, he was recalled and further examined on 23.1.2008 during which Exts.P8 to P14 documents were produced. Suffice to say, these documents were not produced during the first examination of the complainant. It is also relevant to note that Exts.P8 to P14 are only photostat copies of the documents which are claimed to have maintained by the complainant. Crl.A.No.2090 of 2008 :-9-: On a casual perusal of Ext.P8 series, which is said to be the photostat copy of the day book which pertained to the year 2003 and the first page bearing page number 37 contained the entries during the month July, but the second page bearing page No.70 and the entires are with respect to the month November,2003. The said fact itself are sufficient to hold that the same are not representing the exact entries endorsed by the complainant in the day book, if any, maintained by him. The belated production of Exts.P8 to P14 that too photostat copies are sufficient to create doubt in the mind of the court about its veracity. 10. In this juncture, it is relevant to note that the complainant has also admitted the due amount from the accused as recorded in Ext.D1 diary. The last endorsement in Ext.D1 diary is 16.9.2001. The above admission supported by the documentary evidence i.e., Ext.D1 produced by the accused probabilise his case that he has worked under the complainant only up to 16.9.2001 and on that day, a Crl.A.No.2090 of 2008 **==> picture [27 x 9] intentionally omitted <==** sum of `2,29,891/- was pending as due. In this juncture, it is relevant to note that though the complainant has not adduced any specific evidence either oral or documentary, to show the terms and conditions and the rights and liabilities of the parties with respect to the transaction of the alleged sale of manure, when the accused was examined as DW1, during his chief examination, he has stated that he had worked as Salesman under the complainant for a period between 1999-2001 and he had issued a blank cheque connected with the same. About his job, he had stated as follows:- “വളത�ന" order ��ട�ച) ഞ�ന നക�ട�ക�� വ�ദ�യ�നട driver വ�ദ�യ�മ�യ� �ണമ�ട��ട നടത��. എന�ക) salary ആണ തന�ര�നത. അവധ�ക) ത�ക ക�ട:നത ഞ�ന വ�ങ� നക�ട�ക�റ�ണ�യ�ര�ന�. ആയത�ല ഒര� book-ല ക�റ�ച) തര�റ�ണ�യ�ര�ന�. already marked D1” But, during the cross-examination of DW1, the claim of DW1 that he was the employee of the complainant and about the nature of his job Crl.A.No.2090 of 2008 :-11-: etc., there is no effective cross-examination. What is brought during cross-examination is to the effect that “Ext.P1 cheque എന�ക) issue നEയത cheque ആണ. ആയത�ല ഉള ഒപ) എന"ത�ണ.” According to me, the above admission of DW1/the accused will not in any way helpful for the complainant to show that Ext.P1 cheque was duly executed and issued by him towards the discharge of liability as claimed by the complainant, particularly when the evidence of DW1 that he had issued a blank cheque when he was appointed as the employee of the complainant, remains intact without any effective challenge. It is also relevant to note that DW1 has stated that “2004 നവനറ about 3 lakhs ഓള� ഞ�ന നക�ട�ക�ന�ണ) എനത ശര�യ�ണ. ട� ത�ക ഞ�ന നക�ട�ത) തPരത� . ഇന� നക�ട�ക�ന�ലT.” Thereafter, he had denied the liability of `4,20,000/and the issuance of the cheque etc. as claimed by the complainant. So, to prove the liability of the accused and to prove the factum of execution and issuance of Ext.P1 cheque, as claimed by the Crl.A.No.2090 of 2008 **==> picture [27 x 9] intentionally omitted <==** complainant, absolutely, there is no acceptable and legal evidence. Suffice to say, though the complainant has produced several documents during his attempt to show the alleged transaction, no scrap of paper is produced by the complainant to prove that Ext.P1 cheque, which is allegedly issued by the accused, is received by the complainant during the course of the business or any endorsement to that effect in any of the document produced by the complainant. So, according to me, in the light of the above discussion and evidence and materials referred to above, the finding of the learned Magistrate to the effect that the evidence does not reveal that Ext.P1 cheque was issued for the discharge of legally enforceable debt as averred, is absolutely correct, reasonable and plausible. The Honourable Apex Court reported in Mokkiah & Anr. v. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88], while laying down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of Crl.A.No.2090 of 2008 :-13-: ## acquittal, held in paragraph 8 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:_ _“21. xxxxxxxxxx_ _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 appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the_ Crl.A.No.2090 of 2008 :-14-: _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.”_ On examination of the facts and circumstances involved in the case and on perusal of the impugned judgment, in the light of the dictum laid down by the Apex Court in the above decision, it cannot be said that the finding of the learned Magistrate is perverse or illegal so as to interfere by this Court while exercising the appellate jurisdiction of this Court, against the order of acquittal. Crl.A.No.2090 of 2008 :-15-: In the result, there is no merit in this appeal and accordingly, the same is dismissed. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.2090 of 2008 :-16-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 **JUDGMENT** Dated:11.11.2011 ## Crl.A.No.2090 of 2008 :-17-: