K. Khader Haji v. P.K. Kanakaraajan PutheANveetil and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935** **CRL.A.No. 438 of 2008 (D) --------------------------** **AGAINST THE JUDGMENT IN CC 434/2001 of J.M.F.C.-I, SULTHANBATHERY, DATED 23-03-2007** ## **APPELLANT(S)/COMPLAINANT:** **--------------------------** **K.KHADER HAJI, S/O.ABDULLAH MUSLIAR, THIKKODI, KOILANDI.** **BY ADV. SRI.K.B.MOHAMED KUTTY (SR.) SRI.FIROZ K.M.** ## **RESPONDENT(S)/ACCUSED/STATE:** **----------------------------** **1. P.K.KANAKARAJAN PUTHEANVEETIL, P.O.KADALAMAD, VADUVANCHAL THEMATTUCHAL, S. BATHERY.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY ADV. SRI.DEVAPRASANTH.P.J. FOR R1 BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.438 of 2008** **------------------------------Dated this the 13[th] day of November, 2013.** ## **J U D G M E N T** By judgment dated 23.3.2007 in C.C.No.434/01 of the court of Judicial First Class Magistrate court-I, Sultan Bathery, the learned Magistrate has found that the appellant/complainant has miserably failed to prove that the respondent/accused issued Ext.P1 cheque in favour of the appellant/complainant towards the discharge of a lawful debt as alleged by the appellant/complainant and the complainant has failed to prove the execution of Ext.P1 cheque by the 1[st] respondent/accused and accordingly the accused, who faced the prosecution for the offence under section 138 of the NI Act, is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal recorded by the trial court, challenged in this appeal at the instance of the appellant/complainant. **Crl.A.No.438 of 2008** 2 2. The case of the appellant/complainant is that the 1[st] respondent/accused being a close friend of the appellant/ complainant, borrowed a sum of `3,50,000/- from the appellant/complainant and towards the repayment of the same, the 1[st] respondent/accused executed and issued a cheque, which is produced as Ext.P1, bearing date 14.9.2001 for an amount of `3,50,000/-, which when presented for encashment, dishonorued for the reason funds insufficient in the account of the accused and though the complainant sent statutory notice, calling upon the accused to pay the amount covered by the dishonoured cheque, no amount was paid and therefore the accused has committed the offence punishable under section 138 of the NI Act. 3. With the above allegation, the appellant approached the court below by filing a complaint, upon which cognizance was taken by the trial court for the offence punishable under section 138 of the NI Act and thus instituted C.C.No.434/01 in the court below. During the trial of the case, from the side of the appellant/complainant, 3 ## **Crl.A.No.438 of 2008** the complainant himself was examined as PW1 and produced Exts.P1 to P5 documents. Whereas from the side of the defence, Dws.1 to 3 were examined and Exts.D1 to D4 documents were marked. Besides the above, Ext.C1 is marked as court exhibit. After considering the above evidence and materials, particularly after consideration of the expert evidence, the court concluded that the complainant has failed to prove the execution of the cheque and thereby failed to establish the essential ingredients of section 138 of the NI Act and consequently the 1[st] respondent/accused is acquitted. 4. Heard Adv.Sri.Firoz K.M., the learned counsel for the appellant and Adv.Sri.Devaprasanth, the learned counsel for the 1[st] respondent. 5. Learned counsel for the appellant vehemently submitted that the court below erroneously held that no direct evidence is adduced by the complainant to prove the execution of Ext.P1 cheque, since according to the learned counsel, during the cross examination of PW1, the **Crl.A.No.438 of 2008** 4 complainant himself stated that Ext.P1 cheque was executed and issued in his presence. Another contention advanced by the learned counsel for the appellant is that in the present case, Dws.1 and 2, who are handwriting experts, were examined and the evidence of DW1 is in favour of the appellant/complainant and against the 1[st] respondent/accused, but the court below ignoring the above evidence, opted to accept the evidence of DW2 without assigning any reason for rejecting the evidence of DW1. So, according to the learned counsel, the findings of the court below are contrary to the evidence on record and the findings are liable to be interfered with and the order of acquittal is liable to be reversed. 6. Per contra, the learned counsel for the respondent contended that the appellant/complainant has miserably failed to plea and prove the transaction and the execution of the cheque and issuance of the same, and also, neither in the complaint nor in the proof affidavit, the appellant/ complainant has failed to mention any details of the **Crl.A.No.438 of 2008** 5 transaction, except the mere assertion at the time of the cross examination, and therefore the trial court is perfectly correct in rejecting the evidence of DW1. It is the further contention of the learned counsel that, though DW1 has issued Ext.D1 report and deposed to the effect that the signature seen in Ext.P1 cheque is subscribed by the very same person who subscribed the specimen signatures and handwriting, according to the learned counsel, DW1 did not made any attempt to conduct any positive examination about the dissimilarities that occurred in the signature seen in Ext.P1. Therefore, according to the learned counsel, the trial court is correct in opting the evidence of DW2 and Ext.D2 report, since the opinion assigned by DW2 is supported by several reasons, including the dissimilarities observed by him in the disputed signature of the 1[st] respondent/accused. Thus according to the learned counsel, there is no illegality or perversity in the findings of the court below and as such no interference is warranted. **Crl.A.No.438 of 2008** 6 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the contesting respondent and I have perused the evidence and materials on record. 8. In the light of the rival contentions and in view of the evidence and materials on record, the question to be considered is whether the findings of the court below and the order of acquittal recorded by it are sustainable and the further question to be considered is whether the appellant has succeeded in making out any ground to interfere with the impugned judgment. The first point raised by the learned counsel for the appellant is against the findings of the court below that contained in paragraph 9 of the impugned judgment. According to the learned Magistrate, the evidence of PW1 does not inspire confidence, particularly with respect to the execution of Ext.P1 cheque. In support of the above finding, the learned Magistrate has extracted the statement contained in the proof affidavit sworn in by the complainant. According to me, the learned **Crl.A.No.438 of 2008** 7 Magistrate is perfectly correct since in the above mentioned extracted portion of the affidavit of the complainant, there is no whisper that the cheque in question was executed before the complainant and he had seen the due execution of the same and putting the signature by the accused in Ext.P1 cheque. On a perusal of the complaint, particularly in the 2[nd] paragraph of the complaint, it can be seen that, what extracted by the learned Magistrate in paragraph 9 of the judgment is the verbatim reproduction of the averments of the complainant in paragraph 2 of the complaint. Thus, it can be seen that either in the complaint or in the proof affidavit, there is no specific pleading to the effect that Ext.P1 cheque was executed and duly signed by the accused in the presence of the complainant and he had seen putting the signature by the accused in Ext.P1 cheque. In the absence of any pleading in the complaint or statement in the proof affidavit, according to me, the version given by PW1 during the cross examination got no evidentiary value at all. According to me, the paucity of evidence from the part of **Crl.A.No.438 of 2008** 8 the complainant with respect to the execution of Ext.P1 cheque, including putting of signature by the accused on the same, is very relevant since the 1[st] respondent/accused denied the entire transaction including the execution and issuance of the cheque. 9. After filing of the complaint and after examination of the complainant as PW1, during which the accused disclosed his defence to the effect that he has not put his signature in Ext.P1 cheque and Ext.P1 cheque was not executed and issued by him, still then the complainant has not taken any steps to show that Ext.P1 was executed and issued by the accused. But it is pertinent to note that the accused took steps and accordingly, at his request, Ext.P1 cheque sent for expert opinion and initially the same was examined by DW1, who issued Ext.D1 report. The expert who issued Ext.D1 report is examined as DW1. But in Ext.D1 expert opinion as well as during the evidence of DW1, she had stated that the disputed signature and specimen signature were made by the same person. In 9 ## **Crl.A.No.438 of 2008** support of the above opinion, she had also assigned several reasons. But dissatisfied with the evidence given by DW1 and her Ext.D1 report, again Ext.P1 cheque was sent for second opinion to the Government Examiner of Questioned Documents, Directorate of Forensic Science (Ministry of Home Affairs), Government of India, Hyderabad, and accordingly Ext.D2 report was furnished by one Gandhi, M.Sc., who is examined as DW2. In his report it is specifically stated that, “The person who wrote the blue enclosed writings stamped and marked S11 to S40 did not write the red enclosed writing similarly stamped and marked Q1”, and this statement is based on the cumulative consideration of various dissimilarities in the writing habit occurring in them. The trial court after considering the above two expert reports and the evidence of Dws.1 and 2 experts, opted to accept the evidence of DW2 and Ext.D2 report. **Crl.A.No.438 of 2008** 10 10. Learned counsel for the appellant strenuously submitted that the learned Magistrate has not assigned any reason to reject the reasons assigned by DW1 in her Ext.D1 report, who opined that the signature contained in Ext.P1 is similar to the specimen signature. I am unable to endorse the above contention. As I indicated earlier, the entire steps are taken by the defence to substantiate his case that the signature contained in Ext.P1 is not put by the 1[st] respondent/accused. It is now well settled in a prosecution for the offence under section 138 of the NI Act, that the accused need not prove its case with the standard that par with the prosecution, to prove its case beyond reasonable doubt, and the accused can discharge the burden of rebutting the presumption by making out a probable case by preponderance of probabilities and possibilities. Thus on examination of the evidence of DW1, it can be seen that she herself submitted during her chief examination itself that the disputed signature is a disguised one and further **Crl.A.No.438 of 2008** 11 deposed that in pictorial appearance, the first letter “ P ” shows difference as that of the specimen signature and it is due to disguise. Disguise means intentional changes. The above evidence of DW1 was probably in par with the 6[th] and 7[th] reasons given by DW1 in her Ext.D1 report. The 6[th] reason is that the disputed signature shows sign of disguise and the 7[th] reason is to the effect that due to disguise the signature D is made slowly and consciously. Similarly, under item No.9, the reason given is, “The pictorial appearance is effected due to disguise in the disputed signature.” Suffice to say that, the above facts deposed by DW1 was not subjected to cross examination. As there was no cross examination done on the above points, according to me, the appellant/complainant seems to have admitted the same. As rightly pointed out by the learned Magistrate, DW2 is more experienced than DW1 and his evidence, both the deposition as well as the report, when compared with the evidence of DW1 is in a better position. In the evidence **Crl.A.No.438 of 2008** 12 of DW2, he had stated about the scientific devices used by him in comparing the disputed signature and writing. But DW1 has no such claim. As rightly pointed out by the learned counsel for the respondent, in the evidence of DW2 and his Ext.D2 report, it is specifically mentioned about the number of dissimilarities in the disputed signature when compared with the admitted signature. The said fact itself is sufficient to prove that the signature contained in Ext.P1 is not put by the 1[st] respondent/accused. According to me, the said evidence is sufficient to probabilise the case of the 1[st] respondent/accused that the signature seen in Ext.P1 cheque is not put by him and as such, there is no execution of Ext.P1 cheque. 11. Besides the above, in the present case, by invoking the authority given upon the Magistrate under Section 73 of the Evidence Act, the learned Magistrate has also personally verified the signature seen in Ext.P1 and compared the same with the admitted signatures seen in the vakalath and other documents and particularly with the **Crl.A.No.438 of 2008** 13 signature that contained in the account opening form furnished by the 1[st] respondent/accused and according to the learned Magistrate, the signature seen in Ext.P1 is entirely different from the admitted signatures. I have also personally verified Ext.P1 cheque physically, with the admitted signature of the 1[st] respondent/accused. According to me, there is no similarities at all which warrant any expert opinion. Usually, expert opinion is required when there is similarities in the signatures. But in the present case, it is crystal clear to an open eye that, the signature seen in Ext.P1 has no similarities with the admitted signature of the 1[st] respondent/accused. 12. In the light of the above discussion and the evidence and materials referred to above, I am of the view that, the learned Magistrate is perfectly correct and justified in his finding and acquitting the accused. In a recent decision reported in **Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88],** it has held that, **Crl.A.No.438 of 2008** 14 “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. xxxxxxxxxxxxxx “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. **Crl.A.No.438 of 2008** 15 (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.” (emphasis supplied). So, on examination of facts and circumstances of the case on hand and the evidence and materials on record, in the light of the guideline issued by the Honourable Apex Court in the above cited decision, it can be seen that the reasons assigned by the learned Magistrate in support of his finding are quite reasonable and legal, and it cannot be said that the same are perverse or illegal. The appellant has miserably failed to make out any compelling circumstances or substantial reasons to disturb the double presumption of innocence secured by the 1[st] respondent/accused as per the impugned judgment. Therefore, no interference is 16 ## **Crl.A.No.438 of 2008** warranted with the order of acquittal recorded by the trial court. In the result, I find no merit in this appeal and accordingly the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge