K. Anil Kumar v. K.G. Vinoba and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 18TH DAY OF OCTOBER 2013/26TH ASWINA, 1935 CRL.A.No. 12 of 2008 --------------------[AGAINST THE JUDGMENT IN CC 295/2001 of Judicial First Class Magistrate Court-I, KOLLAM DATED 18.12.2004 AGAINST THE JUDGMENT IN CRL.A.NO.49 OF 2005 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-II, KOLLAM] APPELLANT(S)/COMPLAINANT: ------------------------- K.ANIL KUMAR,SAI GARMENTS ANDAMUKKAM, KOLLAM. BY ADV.SRI.C.RAJENDRAN RESPONDENTS(S)/ACCUSED & STATE: ----------------------------- 1. K.G.VINOBA, THULASI BHAVAN, NANGACHIR ANADU P.O., NEDUMANGADU, TRIVANDRUM DISTRICT (PROPRIETOR, MODERN TEXTILES, NANTHIYODU PACHAPALODU) 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 BY ADV. SRI. K.SIJU BY ADV. SRI.S.SUDHEESHKAR R2 BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 12 of 2008** **----------------------------------------** Dated this the 18[th] day of October, 2013 ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') is the appellant herein, since though he succeeded in the first round litigation and got a judgment convicting the accused, failed during the second round litigation initiated at the instance of the accused. By the impugned judgment of the appellate court, the learned Sessions Judge set aside the judgment of the trial court and acquitted the accused. Aggrieved by the above order of acquittal, the complainant, who is the respondent in the lower appellate court, preferred the present appeal. 2. The case of the complainant is that as agreed earlier, on 23.1.1999 the accused came in the shop of the complainant and borrowed a sum of `60,000/- and simultaneously issued a post dated Crl.A.No.12 of 2008 :-2-: cheque bearing date as 23.2.1999 and when the same presented for encashment, it was dishonoured as there was no sufficient fund in the account of the accused and the accused failed to repay the amount covered by the dishonoured cheque in spite of the formal service of demand notice on the accused and thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, the complainant himself got examined as PW1 and produced Exts.P1 to P6 documents whereas from the side of the defence, the accused mounted to the box and got examined as DW1 and he produced Exts.D1 and D2. The trial court finally found that the accused has committed the offence punishable under Section 138 of the N.I.Act as the complainant has succeeded in establishing the essential ingredients of Section 138 of the N.I.Act and the accused failed to rebut the complainant's evidence. Accordingly, he was convicted for the offence under Section 138 of the N.I.Act. On such conviction, the accused is sentenced to undergo simple Crl.A.No.12 of 2008 :-3-: imprisonment for two months and also directed to pay a sum of `63,000/- to PW1 as compensation under Section 357(3) of the Cr.P.C. 3. Challenging the above finding, the order of conviction and sentence, the accused preferred Crl.A.No.49 of 2005 before the court of Sessions and the court of the Additional Sessions Judge-II, Kollam, by judgment dated 4.9.2007 in Crl.A.No.49 of 2005 allowed the appeal and conviction and sentence imposed by the trial court are set aside, holding that the accused is not guilty for the offence under Section 138 of the N.I.Act, on the ground that it is improbable for such a person, like the complainant, who had not been prepared to give credit facilities to the accused, to advance such a huge amount as claimed by him and failed to establish that Ext.P1 was issued in discharge of a legally enforceable debt or liability. It is the above finding of the lower appellate court and the order of acquittal challenged in this appeal. 4. Heard Sri.C.Rajendran, learned counsel for the appellant Crl.A.No.12 of 2008 :-4-: and Sri.K.Siju, learned counsel for the first respondent. 5. Counsel for the appellant/complainant vehemently submitted that the complainant has succeeded in proving his case beyond reasonable doubt and the trial court rightly accepted the case put forward by the complainant, but the lower appellate court, considering and relying on Exts.D1 and D2, which are not properly proved by the accused, went wrong in holding that the appellant/complainant has not succeeded in establishing the case against the accused. To substantiate the above contentions, the learned counsel invited my attention to Exts.D1 and D2 and also the deposition of PW1. According to the learned counsel, the complainant has not acknowledged or approved Exts.D1 and D2 and there is no endorsement in either of the above documents to show any connection of the complainant with the transaction claimed by the accused. It is also the contention of the learned counsel that Exts.D1 and D2 do not contain any seal or signature of the complainant and the accused has Crl.A.No.12 of 2008 :-5-: not sent even a reply to the statutory notice caused to be sent by the complainant. Thus, according to the learned counsel for the appellant, the judgment of the lower appellate court is liable to be set aside and the finding, the order of conviction and sentence imposed on the accused by the trial court may be restored. 6. Per contra, the counsel for the first respondent/accused submitted that the finding of the lower appellate court is reasonable and plausible and it cannot be said that the finding arrived on by the lower appellate court is perverse. Therefore, there is no scope for any interference by this Court. 7. I have carefully considered the arguments advanced by counsel for the appellant as well as the respondent and I have perused the judgment of the lower appellate court as well as the trial court. I have also perused the evidence and materials on record. 8. In the light of the evidence and materials on record and in view of the finding of the lower appellate court, particularly in the Crl.A.No.12 of 2008 :-6-: light of the rival contentions advanced, the question to be considered is whether the appellant has succeeded in making out a case so as to interfere with the order of acquittal recorded by the appellate court in favour of the accused/respondent and whether the finding of the learned Judge of the appellate court is perverse or illegal. 9. This appeal being the continuation of the trial, this Court is inclined to consider the entire case of the prosecution as well as the accused and re-appreciate the evidence and materials on record. In the complaint, the averment regarding the transaction raised by the complainant is that “23.1.1999-ന ന�രത� പറഞ� ഉറപ�ചത�ല പപക�ര� പപത� വ�ദ�യ�ത� ആണ�മ�ക�� ഉള ക�യ�ല വര�കയ�� 60,000/- ര%പ വ�ദ�യ�ല ക�മ�യ� കകപറ�യന(ഷ� പപത� എഴ�ത� കകയ�ല കര�ത�യ�ര�ന 60,000/- ര%പയ�ത� 23-2-99 ത1യത� വച ............................... ത3ക� വ�ദ�യക� �ലക�യ�ട6ളത�� .............................................” In the chief examination, it is stated that “പപത�തയ അറ�യ�� . പപത�ക� Crl.A.No.12 of 2008 :-7-: സ�മ��ക ഇ�പ���ണ�.Readymade Garments-തG Business ആണ.” It is further stated that “23.1.99-ന മ�നM പറഞ� ഉറപ�ച�ര�നത പപക�ര� ............................................... cheque തന�.” In Ext.P4 ## notice, it is stated as follows:- “ _You the proprietor of Modern Textiles,Nadiyodu, drawn a cheque No.80/CA/11 216481, dated 23.2.199 at the Indian Overseas Bank, Palodu, Thiruvananthapuram for a sum of Rupees 60,000/- in favour of my client for value received by you from him. ...........................”_ In Ext.P4 notice, there is no whisper to the effect that the accused borrowed `60,000/- in terms of an earlier settlement arrived before 23.1.1999 as stated during the chief examination or in the complaint. So, the complainant was not having a specific case about the transaction under which the liability or the debt created. In Ext.P4, there is no case to the effect that the cheque in question was simultaneously issued while receiving the amount. Either in the complaint or in the chief examination, no details are given about the terms and conditions arrived into between the complainant and Crl.A.No.12 of 2008 :-8-: accused for the borrowal of `60,000/- as alleged by the complainant. From the complaint and from the chief examination, it appears that the period of the transaction was only for one month. Except Ext.P1 cheque, no other document is obtained by the complainant as security and even in the light of the averment in Ext.P4 notice, it cannot be presumed that the cheque was given simultaneously and therefore, it cannot be treated that Ext.P1 cheque was given as a security for the amount allegedly obtained by the accused. It is also relevant to note that no datas or details mentioned either in Ext.P4 notice or in the complaint to indicate the depth of the acquaintance between the complainant and the accused so as to release such a huge amount without obtaining any document or security. So, there is no specific pleading about the transaction under which the liability created. 10. As rightly pointed out by the counsel for the respondent, either in the complaint or during the chief examination or even in Ext.P4 notice, the complainant has not mentioned about the business Crl.A.No.12 of 2008 :-9-: transaction between the complainant and the accused. In fact, he was forced to admit about the business transaction, only during the crossexamination. Going by the facts in Ext.P4 notice and considering the averments in the complaint and in view of the chief examination, any prudent man will be inclined to hold the nature of the transaction only as a hand-loan. 11. In this juncture, the defence taken by the accused becomes relevant and according to him, the cheque in question was given to the complainant as a security for the purchase effected by him from the complainant who is manufacturing the shirts and conducting wholesale of the same and the accused is a retail shop owner conducting his business in the name and style as Modern Textiles at Thiruvananthapuram. During the cross examination, the complainant has stated that “വരഷങള�യ� പര�3യ� ഉണ� . തമ�ല ബ�സ��സ� ഇ�പ���� ഉണ�.” But, he denied the suggestion that materials are giving on credit basis and according to him, the materials Crl.A.No.12 of 2008 :-10-: were given only on paying cash. During the further cross- ## examination, it is stated as follows:- “പപത�ക� 1996 മ�തല credit-ല സ�ധ�� തക�����ട6ണ�?(Q) ഞ��ത ��നഷധ�ക�ന �. ക�യ�ത` നa�`�ക�ര , സ�ധ�ങള തക�ണ� നപ�യ�ട6ള ക�കള�ല നപ�യ�`c കളകന വ�ങ�റ�ണ�? ഇ`c. 1996,1997,1998 -ത` ഒതക ബ�`c6കള ക�യ�ല ഉണ�ക��? ഉണ�ക��. ആGണ� എതG ക�യ�ത` നa�`�ക�ര�`c.” He further deposed as follows:- “ ഈ പറയ�ന ബ�ക�ല പറയ�ന Bill-കള ഹ�aര�ക�ന പറ�`c .ഈ ക�`യളവ�ല ഉള Bill-കള എതG കകവ(� ഉളത ഹ�aര�ക�ന തയ�റ�ണ. നക��ത� ആവ(lതപട�ല . ഈ ബ�ക�� ഞ���മ�യ� യ�തത�ര� ബനവ�മ�`c.” Thus, the specific case put forward by the accused is to the effect that the cheque in question was given as a security while obtaining the materials from the complainant on credit basis and such cheque is misused by the complainant for filing the present complaint. 12. The lower appellate court, which is also a fact finding authority, perused Ext.P1 cheque and found that the signature and other entries in the cheque are not made by the same person. I have Crl.A.No.12 of 2008 :-11-: also perused Ext.P1. On such perusal, I am convinced that the signature in Ext.P1 is put by using different ink and pen whereas the other entries including the name of the payee, the amount in words and figures and the date were written using by different pen using different ink. If the same are endorsed by the same person, there is no possibility for such difference in the ink and pen. Of course, according to the complainant, the accused brought a filled up cheque. If that is the case of the complainant, it has to be specifically pleaded and the evidence has to be adduced about the prior understanding arrived into by the complainant and the accused about the date of demand for the loan, the date fixed for paying the amount and also the amount demanded and agreed for. In order to circumvent the above adverse situation, in the chief examination and in the complaint, it is stated, as agreed before 23.1.1999. So, on a close scrutiny of the above facts and materials on record, it appears to me that the claim of the complainant is not correct about the transaction, by which the Crl.A.No.12 of 2008 :-12-: alleged liability of the accused is created. 13. In the present case, the lower appellate court came into a conclusion that the case of the complainant is improbable that he advanced a sum of Rs.60,000/- to the accused since according to the learned Judge, the complainant is a person who is not prepared or amenable to supply materials on credit basis. The above observation and finding of the lower appellate court, according to me, is quite reasonable and plausible. 14. It is also relevant to note that the lower appellate court did not rely upon Exts.D1 and D2 in support of his finding as contended by the counsel for the appellant. But in this juncture, it is relevant to note that the accused produced Exs.D1 and D2, which he kept during the regular course of his business and the complainant during his cross-examination has admitted that the bills pertained to the year 1996-99 are in his possession and the same can be produced if the court demands for the same. According to me, from the above Crl.A.No.12 of 2008 :-13-: admission of the complainant, it appears that the bill mentioned in Ext.D1 is not issued from his firm, but those bills pertained to the above year are with him. If that be so, it is the better evidence to demolish the case of the defence that he purchased materials from the complainant on credit basis and Ext.P1 cheque was issued connected with the same But suffice to say, the complainant did not make any attempt to produce those better documents on evidence. 15. As in any other criminal case, in a prosecution for the offence under Section 138 of the N.I.Act, the complainant has to establish his case against the accused beyond reasonable doubt. But, having regard to the facts and circumstances involved in the case, particularly in the absence of proper and definite pleading about the transaction under which the debt or liability created upon the accused and more particularly in view of the finding of the lower appellate court that the complainant, who is not prepared to give credit in favour of the accused in their business, cannot be believed to have Crl.A.No.12 of 2008 :-14-: given loan of `60,000/-, the complainant failed to make out a probable case, whereas the accused has succeeded in making out a probable case in the given facts and circumstances of the case. Thus, he rebutted the presumption under Section 139 of the N.I.Act. 16. In the light of the above discussion and materials and the evidence referred to above, I am of the view that the complainant has miserably failed to establish the essential ingredients of Section 138 of the N.I.Act and the learned Judge of the lower appellate court is perfectly correct in his finding that the appellant has miserably failed to make out a probable case. 17. The Apex Court, in the decision 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 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_ Crl.A.No.12 of 2008 ## :-15-: _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 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_ Crl.A.No.12 of 2008 :-16-: _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 appellate court is perverse or illegal so as to interfere by this Court while exercising the appellate jurisdiction of this Court, against the order of acquittal. In the result, there is no merit in this appeal and accordingly, the same is dismissed. **sd/V.K.MOHANAN, Judge** MBS/ Crl.A.No.12 of 2008 :-17-: