KERALA VYAPARI VYAVASAI EKOPANA SAMITHI v. P.E. SHAJI and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2013/21ST KARTHIKA, 1935** **CRL.A.No. 247 of 2007 ( )** **--------------------------** **AGAINST THE JUDGMENT IN CC 319/2005 of J.M.F.C.-VI, NEYYATTINKARA, DATED 27-06-2006** ## **APPELLANT(S)/COMPLAINANT:** **--------------------------** **KERALA VYAPARI VYAVASAI EKOPANA SAMITHI, REPRESENTED BY THE GENERAL SECRETARY, SASEENDRAN, BALARAMAPURAM, THIRUVANANTHAPURAM.** **BY ADV. SRI.T.RAJASEKHARAN NAIR** ## **RESPONDENT(S)/ACCUSED:** **----------------------** ## **1. P.E.SHAJI,** **PARAYIL HOUSE, OPP. PETROL PUMP, BALARAMAPURAM P.O. THIRUVANANTHAPURAM.** ## **2. STATE OF KERALA, REPRESENTED BY** **ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR ADV.SRI.E.M.ABDUL KHADIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** **------------------------------Crl.A.No.247 of 2007 ------------------------------Dated this the 12[th] day of November, 2013.** ## **J U D G M E N T** Aggrieved by the judgment dated 27.6.2006 in C.C.No.319/05 of the court of Judicial First Class Magistrate-VI, Neyyattinkara, the complainant therein preferred this appeal as the learned Magistrate by the above judgment acquitted the accused who faced the prosecution for the offence punishable under section 138 of the NI Act, at the instance of the appellant/complainant. 2. The case of the complainant is that, the accused was given a loan towards Mutual Benefit Fund Scheme conducted by the complainant, in which the accused was a member and when the accused defaulted in making repayment, on demand, he issued two cheques in favour of the complainant for `24,450/- and `1,03,950/- dated 12.7.2003 towards the settlement of the entire dues. When **Crl.A.No.247 of 2007** 2 the said cheques presented for encashment, dishonoured on the ground 'exceeds arrangements' and the accused has not repaid the amount inspite of the fact that a formal demand notice was served on him and therefore the accused has committed the offence punishable under section 138 of the NI Act. 3. During the trial of the case, PW1 was examined and Exts.P1 to P7 were marked from the side of the complainant and at the time of the defence evidence, the accused himself mounted to the box and got examined as DW1 and produced Ext.D1 series of receipts. The trial court finally found that the accused had repaid the cheque amount to the complainant and consequently held that the accused is not guilty of the offence under section 138 of the NI Act and accordingly he is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal at the request of the complainant. **Crl.A.No.247 of 2007** 3 4. Heard the counsel for the appellant. Though notice is served on the respondent, he has not chosen to appear before this Court to defend the appeal either by himself or by engaging a lawyer of his own. 5. Learned counsel for the appellant vehemently submitted that the findings of the court below that the 1[st] respondent/accused repaid the loan amount is absolutely incorrect and improbable, since the defence documents relied on by the learned Magistrate are not connected with the transaction alleged by the appellant/complainant. On the other hand, Ext.D1 series are connected with some other transaction between the appellant/complainant and the 1[st] respondent/accused. Thus according to the learned counsel, the findings of the court below are liable to be interfered with and the order of acquittal has to be reversed. 6. I am unable to sustain the above contention. 7. The case put forward by the complainant is to the effect that the complainant released a loan amount in **Crl.A.No.247 of 2007** 4 favour of the 1[st] respondent/accused out of the Mutual Benefit Fund Scheme conducted by the appellant/ complainant and the cheques in question are issued towards the discharge of the liability arose out of the said transaction. The specific case put forward by the 1[st] respondent/accused is that though he had availed an amount of `1,20,000/- from the complainant during the year 1997 under the above scheme, the entire amount was repaid and that the cheques which were obtained as security at the time of release of the amount, were not returned even though the entire amount was cleared. It is the above rival claims considered by the learned Magistrate on the basis of the available materials and evidence. The question to be considered, in the light of the arguments advanced by the learned counsel for the appellant and in view of the defence taken by the accused, is whether the trial court is correct and justified in its finding and whether the appellant has succeeded in showing that the finding entered into by the court below, **Crl.A.No.247 of 2007** 5 based upon the impugned judgment, is perverse so as to interfere with the same. In the complaint, particularly in paragraph 1, what alleged by the appellant/complainant is that the 1[st] respondent/accused after borrowing the amount, has made some repayment and afterwards, he continuously defaulted to repay the balance amount and when the appellant/ complainant insisted for the balance amount, the 1[st] respondent/accused issued two cheques in favour of the appellant/complainant. The exact date of the release of the loan amount is not mentioned in the complaint. The case projected by the appellant/ complainant in the complaint is to the effect that the cheques in question were issued subsequent to the release of the loan amount and when the loan amount became due. The appellant/complainant has filed an affidavit in lieu of chief examination, wherein also, the date of the transaction is not mentioned. In paragraph 8 of the affidavit, what mentioned is a verbatim reproduction of the above averment that contained in Paragraph 1 of the complaint. **Crl.A.No.247 of 2007** 6 Suffice to say that, no documentary evidence about the loan transaction, including the day book, account book, ledger extract if any, etc. are not produced by the appellant/complainant to substantiate its case against the 1[st] respondent/accused. 8. In view of the facts and circumstances involved in the case, it can be seen that both the complainant and the accused have admitted about the loan transaction between them. But the further case of the accused is that the loan amount availed has already been repaid, though there is delay in paying the instalments. To substantiate the above case of the 1[st] respondent/accused, he himself has mounted to the box and gave evidence and also produced Ext.D1 series. On a perusal of Ext.D1 series, it appears that the appellant/complainant has acknowledged the receipt of instalments repaid by the accused towards the Mutual Benefit Fund Scheme. The above receipts are not disputed by the appellant/complainant. But the learned counsel for the appellant contended before me that the said receipts **Crl.A.No.247 of 2007** 7 are connected with some other transaction between the appellant/complainant and the 1[st] respondent/accused. I find no reason to accept the above contention. As I indicated earlier, in this case, it is relevant to note that both the appellant/complainant and the 1[st] respondent/ accused had admitted about the loan transaction but the appellant/complainant has not produced any evidence to prove such transaction. But while the 1[st] respondent/ accused had admitted the transaction, he had produced documents to show that he had repaid the amount by way of instalments connected with such loan transaction. If the appellant/complainant has got a case that the receipts produced by the 1[st] respondent/accused are connected with some other transaction, it was for him to produce evidence including documentary evidence to prove such other transaction and to show that Ext.D1 receipts are covered by such other transaction. 9. In this juncture it is also relevant to note that the case of the appellant/complainant is quite unbelievable **Crl.A.No.247 of 2007** 8 since it is claimed that the 1[st] respondent/accused had executed and issued two cheques on the same date. This Court failed to understand under what circumstances the two cheques were issued for clearing the dues as claimed by the appellant/complainant. The presence of two cheques itself are sufficient to probabilise the case of the 1[st] respondent/accused that those cheques were obtained at the time of releasing the loan amount to the 1[st] respondent/ accused. So, the appellant/complainant has miserably failed to prove its case against the 1[st] respondent/accused beyond reasonable doubt, particularly with respect to the transaction and execution and issuance of the cheques as claimed by the appellant/complainant. Whereas the 1[st] respondent/accused had succeeded in making out a probable case, as to how the cheques in question were reached in the hands of the appellant/complainant and by producing Ext.D1 series of documents, the 1[st] respondent/ accused has positively proved that whatever amount due to the appellant/complainant has been paid off by the 1[st] **Crl.A.No.247 of 2007** 9 respondent/accused. In short, the complainant has miserably failed to show the consideration connected with the cheque in question. 10. In the light of the above facts and circumstances of the case and in view of the discussion, I find no reason to interfere with the findings arrived on by the court below in favour of the 1[st] respondent/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, “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 **Crl.A.No.247 of 2007** 10 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 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). **Crl.A.No.247 of 2007** 11 So, on examination of facts and circumstances of the case on hand and the evidence and materials on record and 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 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