K. V. Viswanathan v. Chandradas K.G. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 6TH DAY OF SEPTEMBER 2012/15TH BHADRA 1934** ## **CRL.A.No. 97 of 2007 ( )** **-----------------------AGAINST THE JUDGMENT IN ST.302/2006 of J.M.F.C.,KOTTAYAM, dtd.5.7.2006** **APPELLANT(S)/COMPLAINANT: ------------------------** **K.V.VISWANATHAN, KUNNATHUKALATHIL JINO BHAVAN, THEKKUMGOPURAM KOTTAYAM.** **BY ADV. SRI.V.K.SUNIL** ## **RESPONDENT(S)/ACCUSED & NON-PARTY STATE:** **----------------------------------------** **1. CHANDRADAS K.G., CHANDRALAYAM, SACHIVOTHAMAPURAM P.O., KURICHY.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY ADV. SRI.M.P.MADHAVANKUTTY FOR R1 ADV. SMT.LALIZA T.Y., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.97 of 2007** ## **------------------------------Dated this the 6[th] day of September, 2012.** ## **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 since he is aggrieved by the judgment dated 5.7.2006 in S.T.No.302 of 2006 of the court of Judicial First Class Magistrate-I, Kottayam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that, towards discharge of the liability due to the complainant, the accused issued Ext.P2 cheque dated 27.1.2005 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a 2 ## **Crl.A.No.97 of 2007** statutory notice served on the respondent and therefore the accused has committed the offence punishable under section 138 of the NI Act. The defence taken by the accused, which born out from the cross examination of PW1 is to the effect that the cheque in question given to the complainant is connected with the chitty transaction of the wife of the accused with the complainant. During the trial of the case, from the side of the complainant, the power of attorney holder of the complainant is examined as PW1 and produced Exts.P1 to P7 documents. From the side of the defence, Dws.1 and 2 were examined and Exts.D1 to D9 were marked. The trial court after an elaborate consideration of the entire evidence and materials came into a conclusion that the complainant has failed to prove beyond reasonable doubt that Ext.P2 cheque was issued by the accused to the complainant in discharge of the liability for an amount of `1 lakh, which was availed by the accused as a personal loan. Accordingly, the accused is acquitted 3 ## **Crl.A.No.97 of 2007** under section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. I have heard Sri.V.K.Sunil learned counsel for the appellant/complainant and Sri.M.P.Madhavankutty learned counsel appearing for the respondent/accused. 4. Learned counsel for the appellant vehemently submitted that the evidence of PW1 and the documents produced from the side of the complainant prove the case of the complainant, particularly regarding the transaction and the execution and issuance of the cheque. In support of the above submission, learned counsel pointed out that the accused is not denying the execution of Ext.P2 cheque, though they have got a case to the effect that Ext.P2 cheque was given connected with another transaction. Therefore, according to the counsel, since the accused has admitted the execution and the issuance of the cheque, the presumption under section 139 of the NI Act is in favour of the complainant and therefore it was for the accused to 4 ## **Crl.A.No.97 of 2007** rebut that presumption. It is also the case of the counsel that the accused tried to rebut the presumption by examining Dws.1 and 2 and by producing the defence documents mentioned above. Against accepting the above documents and the evidence it is the contention of the counsel that, against the dictum laid down by the Apex Court in the decision reported in **M/s.Mandvi Co-op. Bank Ltd. Vs. Nimesh B.Thakore (AIR 2010(SC) 1402)** both the accused as well as his witnesses have filed an affidavit towards letting the evidence and therefore such evidence cannot be accepted as legal and if so, on excluding those evidences, absolutely there is nothing on record to substantiate the plea of the accused towards rebutting the presumption. It is also contended by the learned counsel that during the cross examination of DW1, he himself has admitted that Ext.P2 cheque was executed and issued towards discharge of the liability due to the complainant. Thus according to the counsel, the findings of the court 5 ## **Crl.A.No.97 of 2007** below is incorrect and illegal and are liable to be set aside. 5. On the other hand, learned counsel for the respondent strenuously submitted that the complainant has miserably failed to prove the transaction and the liability and also the execution and issuance of Ext.P2 cheque and therefore the complainant is not entitled to get the presumption under section 139 of the NI Act and therefore the rebuttal of presumption seldom arise. 6. I have carefully considered the contentions advanced by the counsels for the appellant and the respondent and I have perused the judgment impugned and the evidence and materials on record. 7. In the light of the rival contentions and the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and acquitting the accused and whether the appellant has succeeded in making out a case so as to interfere with the order of acquittal recorded in favour of 6 ## **Crl.A.No.97 of 2007** the respondent/accused. The crux of the allegation of the complainant is that the accused issued Ext.P2 cheque towards discharge of the liability due to the complainant, whereas the case of the defence is that he has no transaction with the complainant and the cheque in question is given connected with another transaction that taken place between the complainant and wife of the accused. As rightly pointed out by the learned Magistrate, the complainant did not mount to the box and no evidence is adduced regarding the transaction. The case of the complainant is attempted to prove by examining PW1 who is the power of attorney holder of the complainant and it is a settled law that the power of attorney holder can depose before the court on behalf of the complainant with respect to the facts that is within the knowledge of the power of attorney holder. It is true that, in the complaint as well as in the proof affidavit, PW1 has stated that he knows about the transaction. But either in the complaint or in the proof 7 ## **Crl.A.No.97 of 2007** affidavit or in the deposition of PW1, there is no whisper regarding the loan transaction under which the so called liability is created. It is borne out from the evidence of PW1 that the accused is a Provident Fund employee. `1 lakh is not a meagre amount. There is no averment either in the complaint or in the proof affidavit or in the evidence of PW1 on what circumstances the accused borrowed `1 lakh from the complainant and under what circumstances such an amount was released in favour of the accused without any security or any document. So regarding the liability aspect of the complainant case, absolutely there is no evidence. 8. One of the contentions advanced by the counsel for the appellant is that the accused has admitted the execution of Ext.P2 cheque. It is also the contention of the counsel for the appellant that the affidavit filed by the accused-DW1 or DW2 cannot be accepted, since it is against the dictum laid down in **M/s.Mandvi Co-op. Bank Ltd. Vs. Nimesh** 8 ## **Crl.A.No.97 of 2007** **B.Thakore (AIR 2010(SC) 1402)** . But the counsel submits that the depositions of these witnesses during their cross examination can be admitted. It is true when DW1 was examined during the cross examination, he had stated, as an answer to the question put forward on behalf of the complainant, in the following manner. “ന�ങള വ�ദ�യ��ട� കട� വ�ങ�� ത�ക ത�ര�കക കക�ട�ക�ന യവണ� വ�ദ�ക� നലക�� ക�ക�ണ� Ext.P2 എന�� പറ��ന� ? ശര���ണ�.” I will come to those aspects later. It is relevant to note that neither in the complaint nor in the proof affidavit or during the evidence of PW1, stated anything with respect to the execution and issuance of cheque except a general statement. PW1 does not speak about the occasion, the date or place when the cheque was executed, and he has no claim that he had witnessed the execution of the cheque. Had there any averment in the complaint and any whisper in the evidence of PW1 regarding the date, time, place and the occasion etc. of the execution of the cheque, the court has to look into for 9 ## **Crl.A.No.97 of 2007** a corroboration of such evidence of PW1, if the same is otherwise acceptable, and the court can consider the so called admission pointed out by the learned counsel for the appellant. In the absence of any specific pleading in the complaint in this regard, there is no question of adducing any evidence. But to the worse of the complainant's case, PW1 has not adduced any evidence regarding the execution. Therefore, no question is arising to consider the admission of DW1-the accused. In a prosecution for the offence under section 138 of the NI Act, as in any other prosecution, it is for the complainant to establish its allegation upon its own footing and not on the weakness of the defence. So according to me, there is no positive evidence from the part of the complainant to prove the execution and issuance of the cheque in terms of his claim. 9. It is in this juncture, the case advanced by the accused became relevant. As rightly pointed out by the learned counsel for the appellant, the affidavit filed by 10 ## **Crl.A.No.97 of 2007** Dws.1 and 2 cannot be looked into in the light of the decision of the Honourable Apex Court reported in **M/s.Mandvi Co-op. Bank Ltd. Vs. Nimesh B.Thakore (AIR 2010(SC) 1402).** The defence by examining Dws.1 and 2 and producing Exts.D1 to D9 documents, attempted to adduce evidence so as to rebut the presumption. If those evidence are excluded in view of the decision cited supra, there is no positive evidence from the side of the defence to rebut the presumption. But the Honourable Apex Court in the decision reported in **Krishna Janardhan Bhat Vs. Dattatraya Hegde [2008(1) KLT 425 (SC)],** has held that, to rebut the presumption under section 139 of the NI Act, the defence can make use of the circumstances and materials brought on record at the instance of the complainant and towards the discharge of the said burden, the accused need not even mounted to the box. From the forgone discussions, I have already found that the complainant has miserably failed to prove the liability-part 11 ## **Crl.A.No.97 of 2007** of the transaction and also the execution of the cheque. According to me, the above circumstances will definitely go against the case of the complainant. Beside the above, the case of the accused, as gatherable from the trend of cross examination of PW1, is to the effect that the cheque in question was given as security connected with the chitty transaction between the wife of the accused and the complainant. Learned counsel for the appellant submitted that, when PW1 was questioned, not even a suggestive question was put to PW1 that, 'Kunnathukalathil chitty funds ' is run by the complainant and no evidence is adduced in this regard. It is true that, no direct question was put to PW1 in this regard. As rightly pointed out by the counsel for the respondent that, from the cause title of the complaint it can be seen that the house name of the complainant is 'Kunnathukalathil Jino Bhavan'. From the answer given in the cross examination it is discernible that, the suggestion from the defence is that the cheque in 12 ## **Crl.A.No.97 of 2007** question was given, connected with the chitty transaction and that is why PW1 has stated that, “personal ആ�� കട� വ�ങ�� ത�ക��ണ�.” It is also relevant to note that during the cross examination of PW1, when a suggestion was put to PW1 that, the present case was filed as there was arrears connected with the chitty transaction of the wife of the accused, the answer was that the same was not correct. In this juncture it is relevant to note that, PW1 is not a stranger. He is an authorised agent of the complainant and his authority is borne out from Ext.P1 power of attorney. But he has not stated anything to the effect that the complainant has no chitty company in the name 'Kunnathukalathil chitty funds '. It is also relevant to note that during the re-examination what stated by PW1 is that, “പപത���കട ഭ�ര"ക� ��ട� ഉയണ� എന� എന�കറ���ല.” That means, he is indirectly admitting the chitty transaction of the wife of the accused with the complainant. Thus it can be seen that, eventhough there was no burden on the accused to rebut 13 ## **Crl.A.No.97 of 2007** the presumption, the defence has succeeded in bringing out a doubt regarding the veracity of the complainant's allegation. 10. In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** ( **2012 (4) Supreme 72** ), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence.” On examination of the entire facts and circumstances involved in the case and the available evidence on record, and in the light of the dictum, I am of the view that, the appellant has failed to show that the judgment impugned in this appeal is a perverse one. It is also held by the Honourable Apex Court that, unless and until any 14 ## **Crl.A.No.97 of 2007** substantial and compelling circumstances are made out, the Appellate Court will not be justified in interfering with the order of acquittal recorded in favour of the accused, so as to disturb the double presumption of innocence reiterated by the findings of the trial court. In the light of the above facts and circumstances involved in the case, and the evidence and materials on record, I am of the view that, the appellant has miserably failed to make out any exceptional case or compelling reasons so as to interfere with the order of acquittal recorded by the trial court. Therefore, I find no merit in this appeal. Accordingly, the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge