Joseph Varghese v. Chandrabose and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** ## **CRL.A.No. 1185 of 2006** **AGAINST THE ORDER IN CC 297/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,THRISSUR DATED 16-04-2005** ## **APPELLANT/COMPLAINANT:** **JOSEPH VARGHESE, S/O VARKEY, KALLEKKATTU HOUSE, CHOTTUPARA, KILLANNUR VILLAGE,THALAPPILLY TALUK, REP. BY HIS POWER OF ATTORNEY, HOLDER THOMAS, S/O. VARGHESE, KALLEKKATTU HOUSE,, P.O. CHOTTUPARA, THRISSUR DISTRICT.** **BY ADV. SRI.G.SREEKUMAR (CHELUR)** ## **RESPONDENTS/ACCUSED AND STATE:** **1 CHANDRABOSE, KUTTIKATTU HOUSE, P.O. PERINGOTTUKARA, THRISSUR DISTRICT. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **PUBLIC PROSECUTOR SRI. K.B RAMNANAND** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRLANo1185/2006 2** ## **`JUDGMENT`** **The appellant herein is the complainant in C.C. No.297/2002 on the file of the Judicial First Class Magistrate Court-I, Thrissur. A complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act. It was alleged by the complainant that the 1[st] respondent herein issued a cheque dated 10.01.2002 for an amount of Rs.1,74,600/- and on presentation of the same, the said cheque dishonoured for the reasons stated that fund was insufficient. When this matter was intimated to the complainant, he has issued a layer's notice to the accused but it was returned by stating that the accused has left India. Thereafter,** **CRLANo1185/2006 3** **he has lodged the complaint against the accused. After taking cognizance by the learned Magistrate summons was issued to the accused but the accused was not available in** **the address. Therefore, steps under Sections 82 and 83 were resorted to and at that stage the accused surrendered before the learned Magistrate. Thereupon, after furnishing necessary copies of the records, the particulars of the offences were read over to him and pleaded not guilty. Thereafter, evidence was taken, the complainant was examined as PW1, Exts.P1 to P6 were marked. Thereafter, the accused was questioned under Section 313 of the Cr.P.C. After evaluating the entire evidence, the court below has found that the accused is not guilty of offences, then complaint was dismissed.** **2. Highly aggrieved by same the** **CRLANo1185/2006 4** **complainant has approached this Court and filed an appeal by stating that the view** **taken by the learned Magistrate apart from the direct evidence of the DW1, the probability of circumstances in subsequent of the defence case is patently wrong. It is for the accused to prove the discharge or otherwise to prove those circumstances against the complainant. The accused has not taken any steps to prove that he handedover some cheques to the complainant. The learned Magistrate ought to have found that there is material alteration in the cheque and the notice was duly served on the grounds are urged before the complainant raised for setting aside the acquittal rendered in the C.C. No.297/2002 dated 16.04.2005 on the file of the Judicial First Class Magistrate CourtI, Thrissur.** **CRLANo1185/2006 5** **3. Now, the question which arises for consideration is whether the judgment passed by the Judicial First Class Magistrate CourtI, Thrissur by acquitting the accused under Section 255(1) Cr.P.C is interfered or not.** **4. The power of attorney who is the brother of one Joseph, S/o Varghese Kallekkat has filed this complaint against the accused alleging that due to discharge of liability to the accused owed to his brother accused had drawn a cheque for the debt amount of Rs.1,74,600/- dated 10.01.2002 to Punjab National Bank Ltd., Thrissur branch and issued to his brother. In fact the power of attorney holder of the original complainant had filed complaint before this Court. According to them PW1, the complainant presented the cheque for collection on 04.02.2002 through Canara Bank.** **CRLANo1185/2006 6** **Mulamkunnathukavu branch, but it was returned as dishonoured on 05.02.2002 by the drawee bank on the reason of insufficiency of fund in the account of the accused and it was received by the complainant on 08.02.2002. Inspite of repeated demands the cheque amount was not paid by accused. Therefore, he has issued a lawyer's notice on 15.02.2002 to the accused calling upon to him to pay the amount, but it was received back by the complainant on 28.02.2002 stating that accused had left India.** **5. From the evidence, it has come out that after 82 and 83 steps of Cr.P.C. the accused entered appearance before the court below and the complaint enquiry was proceeded against him. On the side of the complainant, Pw1 was examined and Exts.P1 to P6 were marked. PW1 is the power of attorney of the** **CRLANo1185/2006 7** **complainant. While he was in box he was stated that he did not know anything about the execution of Ext.P1 cheque and the consideration covered under it. From the evidence, it has come out that Ext.P1 cheque dated 01.10.2002 and it was presented for collection through Cannara Bank, Thriroor branch on 04.01.2002. Actually the date of cheque is 10.01.2002. During the cross examination, defence counsel has suggested a question about the defence case. Instead of giving a specific denial, he admitted that he did not know the place at which the cheque was given to the complainant and the nature of the cheque that was given to the complainant which are probabillising the defence case. It is true that there is correction in Ext.P1 cheque but PW1 has expressed ignorance in this aspect. Infact** **CRLANo1185/2006 8** **the PW1 has no idea about the real transaction entered between the complainant and the accused.** **6.** _**Per contra,**_ **the accused has taken a defence that the complainant was conducting a kuri named 'Changathikuri' at Gulf countries and the accused was one of the subscriber in it. At the time of releasing the kuri amount, the complainant obtained three singed blank cheque from the accused and one among them was manipulated as Ext.P1. So accused has specifically denied execution of Ext.P1 cheque and also consideration covered in it. When the accused was denied execution of Ext.P1 cheque, the presumption under Sections** **118 and 139 of the Negotiable Instruments Act will not be favorable to the complainant. In order to establish the defence case, the accused himself was examined as RW1 and he** **CRLANo1185/2006 9** **has deposed about his defence case. According to the accused, he was in Gulf countries from 1998 to 23.04.2004 and while he was there, he had subscribed a kuri conducted by the complainant and signed blank cheque was given by him as security for receiving the kuri amount and according to him the cheque was forged by the complainant and filed a complaint on the basis of that. About the said kuri the PW1 has stated that he did not know anything about it and he did not know anything about the transaction for Ext.P1 cheque was issued. The PW1 has also denied the suggestive question that the blank signed cheque was handed over to the complainant by the accused, his answer was that he did not know anything about that. On perusal of testimony of the PW1, I have noted that the chief examination itself PW1 stated that the** **CRLANo1185/2006 10** **accused has assured as he would give the cash at the time of issuance of the cheque. Further, he was stated that he would deposit the amount in the bank thereafter, the cheque would be issued. Accordingly, it is proved that the cheque was entrusted as a security with the PW1 and there was assurance to give back the cheque on payment of the entire amount. In addition to that the PW1 deposed that the request for time to present cheque after crediting the amount in the account appears to be unreasonable as accused could very well pay the amount directly to the complainant than to remit in the bank. From the evidence of PW1, it is quite clear that he was not aware of the real transaction between the complainant and the accused. The definite case of the accused is that while he was in Gulf, he has subscribed chitty and at** **CRLANo1185/2006 11** **the time of releasing the amount he has given a cheque as a security for the repayment of the amount. The power of attorney was examined as PW1 and he has expressed ignorance regarding the entire transaction. The way of the evidence adduced by the PW1 would prove that the case advanced by the accused is more probable than the evidence adduced by the PW1. According to the accused, the chitty amount liable to be given by him to the complainant was paid by him. Then he asked to get back the cheque which was given as security. But it was not given back by stating that it was kept at India and thereafter, he could not contact the complainant. According to the accused, he was facing problems at the Gulf countries due to expiry of his visa but no evidence was adduced to support of the defence version.** **CRLANo1185/2006 12** **But no evidence was forthcoming to disbelieve the testimony of DW1.** **7. Now, the next question is to be considered is whether there is any material alteration in Ext.P1 cheque. It is quite clear that the date as shown as 10.02.2002. But it appears to be returned in different hand writing than the other entries. The variation seen in the figure about the amount of cheque and date is clear from its mode of writing. There was no explanation on the side of PW1 about the correction, made in the date. When he was asked about it instead of denying the correction he has stated that no objection was raised by the bank. In fact the issuance of cheque is admitted by the accused. But definite case is that the PW1 has impliedly admitted about the material alterations on Ext.P1 cheque. During cross** **CRLANo1185/2006 13** **examination, he has stated that at the time of issuance of such cheque he did not know what was the real nature of Ext.P1 at the time of handing over the same to the complaint by the accused. As per the decision held in Ramachandran vs Dinesan [2005 (1) KLT 353], if there is any material alteration in the cheque that will render the cheque void and on the strength of that no criminal persecution will lie. Even though, on the side of the complainant his power of attorney** **was examined as PW1. He was not able to establish the case as advanced by the complainant. He has not certain about the transaction and he was not a person who witnessed the transaction between the complainant and the accused. The case advanced by the accused that he was** **CRLANo1185/2006 14** **subscribed to the chitty which was being run by the complainant in Gulf countries and this fact has not been denied by the PW1. When there is a denial on the part of the accused regarding the due execution of Ext.P1 cheque definitely the burden shifts upon the complainant to establish that Ext.P1 cheque was issued for transaction as alleged by him. The complainant was not examined in this case also. So, I find that the case advanced by the accused is more probable to be believed than the case advanced by the complainant.** **8. It is also another case that the demand notice was not served to the accused. From the evidence, it is clear that at the time of issuance of the notice the accused was in the Gulf country. There is no evidence to prove that the notice was sent to the accused at the residence where he last** **CRLANo1185/2006 15** **resided. According to the PW1, the notice was received by the complainant as the accused had left from India. Ext.P5 is returned notice. There is no evidence to prove that the accused has willfully avoided from accepting the notice issued by the complainant. From Ext.P1, it is quite clear that the addressee was at Gulf country. At the time of deposition, he has stated that he did not know when did the accused leave India and even after receipt of the notice unserved, he did not enquire about the residence of the accused. He has also further deposed that he did enquire whether the accused was in Gulf country from 1998 to 23.04.2004. So it is clear that the notice was not duly served to the accused. The reason as mentioned above, the court below has held that the accused is not guilty of** **CRLANo1185/2006 16** **offence under Section 138 of the Act and accordingly, he was acquitted and on evaluating the entire evidence, I have no hesitation to hold that the finding entered by the court below is found to be correct and no interference is warranted.** **In the result the appeal is dismissed.** **Sd/-** **ANNIE JOHN JUDGE** YKB