K.K. Sebastian v. M.J. Michael and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 5TH DAY OF SEPTEMBER 2012/14TH BHADRA 1934 CRL.A.No. 1751 of 2003 ( ) -------------------------CRLP.448/2003 DATED 09-10-2003 CC.31/2002 of J.M.F.C.-I, MANANTHAVADY -------------** ## **APPELLANT(S)/COMPLAINANT :-** **-----------------------------** **K.K.SEBASTIAN, S/O.KURIAKOSE, AGED 46 YEARS, KOONANKIYIL HOUSE, CHERUKATOOR, MANANTHAVADY TALUK, WAYANAD DISTRICT.** **BY ADV. SRI.N.J.ANTONY** **RESPONDENT(S)/ACCUSED/STATE :- ---------------------------------** **1. M.J.MICHAEL, S/O.JOSEPH, MEVADAKUNNEL HOUSE, NADAVAYAL, NAIKUPPA, PANAMARAM, MANANTHAVADY TALUK, WAYANAD DISTRICT.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SRI.LALJI P.THOMAS FOR R1 BY ADV. SRI.GEORGE P.J. BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **jvt** ## **CRL.A.No. 1751 of 2003** ## **J U D G M E N T** Appellant's counsel absent today also. No representation. This appeal is filed challenging the verdict of acquittal in a complaint filed under Sec.138 of N.I.Act. The acquittal was made under Sec.255(1) Cr.P.C. Hence, this Crl.A. is dismissed for non- prosecution. **SD/- N.K.BALAKRISHNAN, JUDGE.** 5.9.2012. //True Copy// P.A. To Judge ## **V.K.MOHANAN, J.** **-------------------------------------Crl.A.No.1751 of 2003** **--------------------------------------Dated this the 25[th] day of November, 2013** ## **JUDGMENT** The complainant in a prosecution for the offence punishable under Section 138 of the N.I. Act preferred this appeal, as he is aggrieved by the judgment dated 19/9/2003 in C.C.No.31 of 2002 of the court of the Judicial First Class Magistrate Court-I, Mananathavady since the learned Magistrate acquitted the accused under Section 255(1) of Cr.P.C. 2. The case of the complainant is that, the accused owed an amount of `1,49,000/- to the complainant and when demanded for the repayment of the said amount, the accused issued Ext.P1 cheque dated 27/12/2001 for an amount of `1,49,000/-, which when presented for encashment, was dishonoured due to insufficiency of fund in the account maintained by the accused and the accused has not repaid the amount in spite of a statutory notice served on him. Thus, Crl.A.No.1751 of 2003 :-2-: according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. 3. With the above allegation the complainant approached the court below by filing a complaint upon which cognizance was taken and thus instituted C.C.No.31 of 2002 in the trial court and during the trial of the case the complainant himself was examined as PW.1 and produced Exts.P1 to P5 documents. From the side of the defence Dws.1 to 3 were examined and produced Ext.D1 document. After having considered the entire evidence and materials on record, the trial court has held that the version of the complainant does not inspire confidence and unable to accept the case of the complainant that Ext.P1 cheque was issued to discharge a legally enforceable debt and the complainant has not established his case beyond reasonable doubt and accordingly held that the accused is not guilty and consequently 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. Crl.A.No.1751 of 2003 :-3-: 4. Heard Sri.N.J.Antony, the learned counsel for the appellant and Sri.Lalgi P.Thomas, the learned counsel for the first respondent/accused. 5. The learned counsel for the appellant vehemently submitted, after taking me through page 8 of the impugned judgment, wherein paragraph 14 is continued, in which the learned Magistrate has mistakenly found that Ext.P1 cheque bearing date 26/12/2002 and on the basis of such factual mistake, the trial court came into the above conclusion and therefore the findings of the court below and the order of acquittal are liable to be set aside. It is also the contention of the learned counsel that the accused has no explanation as to how Ext.P1 cheque which bearing his signature and pertained to his account came in the possession of the complainant and thus, according to the learned counsel, the defence has miserably failed to discharge its burden of rebutting the presumption. But the court below ignoring all the above facts erroneously came into the above finding. Therefore, according Crl.A.No.1751 of 2003 :-4-: to the learned counsel, the order of acquittal recorded by the trial court is liable to be reversed and the accused/respondent is liable to be convicted and punished. 6. I have considered the arguments advanced by the learned counsel for the appellant and the evidence and materials on record in the backdrops of the defence taken by the accused in the above case. 7. In the light of the rival contention and in view of 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 the further question to be considered is, whether the appellant has succeeded in making out any ground to interfere with the order of acquittal recorded by the trial court. At the out set it is to be noted that in the complaint absolutely there is no pleading about the transaction, the nature of the transaction and the date of which the liability created on the accused and the execution and issuance of the cheque. The learned counsel for the appellant submitted that, generally at the time of filing the Crl.A.No.1751 of 2003 :-5-: complaint in the present case such details are not being incorporated. The Appeal being the continuation of the trial, according to me, this Court has to consider the appeal on the basis of the averment and allegation in the complaint as such on the basis of settled position of law as on today. A Division Bench of this Court in the decision in **Devan Vs. Krishna Menon** [2010 (2) KLT 397] has held, once the signature, execution and handing over of the cheque is satisfactorily proved, presumption under Section 139 would come into play and remain there until the accused discharge the burden by inferior standard of preponderance of possibilities and probabilities as applicable in civil law and the complainant need not establish the original cause of action in meticulous details. But in the present case going by the allegation in the complaint it can be seen that the complainant has miserably failed in specifically taking the averment at least the nature of the prosecution. According to me, the present nature of averment suitable for any kind of transaction and at the time of trial the complainant can depose about the nature of the Crl.A.No.1751 of 2003 :-6-: transaction in such a passion and convenience which not mentioned in the complaint. Normally, the transaction may be a simple hand loan or chitty transaction or sale of properties or hire purchase agreement, etc. The averment to the effect that the accused owed to the complainant can be in suit of any such transaction. According to me, such a incomplete or vague averment or allegation are not sufficient to constitute a legal transaction and thereby to create a liability as contemplated under Section 138 of the N.I. Act. In the present case as indicated earlier, there is no specific averment or allegation under which the liability is created by the accused towards the complainant and towards the execution and issuance of cheque also there is no specific case supported by acceptable evidence other than the bare claim of the complainant himself. It is true in the complaint it is stated that the cheque was issued on 27/12/2001. No doubt the amount covered by Ext.P1 cheque is for `1,49,000/-. How the above amount arrived in the cheque there is no pleading as I stated earlier and further there is no specific pleading and averment as to when and what basis the Crl.A.No.1751 of 2003 :-7-: cheque was executed and issued to the complainant. So, absolutely there is no pleading and evidence about the transaction and the execution and the issuance of the cheque. If that be so, in the light of the above decision of the Division Bench the complainant is not entitled to get the benefit of statutory presumption. 8. However in the impugned judgment the trial court has found that the accused has succeeded in discharging his burden of rebutting the presumption. The above finding, according to me, is correct and legal. The accused during his time for defence evidence, by examining Dws.1 to 3 and producing Ext.D1 document, has shown that there was a transaction connected with the purchase of a vehicle bearing registration No.KL 12A/7335 on 01/01/2000 and according to the defence, besides the above vehicle transaction, he had no other transaction with the complainant. The complainant has also admitted the above vehicle transaction and he had also admitted that he had preferred Ext.D1 complaint before the Nadavayal Ferona Church Vicar. As per the averment in the Crl.A.No.1751 of 2003 :-8-: said complaint, the accused was indebted to the complainant as on 30/06/2001 for an amount of `67,130/- including the interest of `36,000/-. He had also averred in the said Ext.D1 complaint that he had sold the vehicle on 13/11/2001 but he could not clear the loan availed from the bank which was taken for the purchase of the said vehicle which was a joint venture in which the complainant, the accused and one Tomy are involved. Dw.1 further shows though a conciliation talk was held at the instance of father George Moolayil Vicar of the above church on 16/7/2002 the same could not be materialsed. In this juncture it is relevant to note that Ext.D1 complaint was dated 26/6/2002. The complainant has also admitted that during the month of October-November, 2001 he was indebted to the bank for a total sum of `2,00,000/-. If that be so, according to the learned Magistrate it is unbelievable, while such a huge amount was due from the complainant to his bank, the complainant released an amount of `1,49,000/- to the accused. It is in this juncture, according to me, the absence of specific pleading about the nature of transaction including the Crl.A.No.1751 of 2003 :-9-: date of the borrowal by the accused, etc. are become relevant. So even if there is a mistake occurred in the judgment of the trial court about the date of Ext.P1 cheque, the same is no way helpful for the case of the complainant to show that the cheque was issued towards the discharge of any legally enforceable debt. So, according to me, the learned Magistrate is fully justified in his finding that the version of the complainant does not inspire the confidence and accept the case of the complainant that the cheque was issued in favour of the accused for a legally enforceable debt. The learned Magistrate came into the above finding and conclusion based upon the available evidence and materials adduced by the defence and also on the basis of the paucity of pleading and evidence from the side of the complainant about the exact transaction. Therefore, I find no reason to interfere with the above finding of the court below. 9. The Hon'ble Apex Court in a recent decision reported in **Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu** [2013 (1) Supreme 88] **,** has held as Crl.A.No.1751 of 2003 :-10-: ## follows:- “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: ............ “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. Crl.A.No.1751 of 2003 :-11-: (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). Going by the evidence and materials on record and the pleading in the complaint and particularly on examination of Crl.A.No.1751 of 2003 :-12-: the evidence of the complainant in the light of the above decision it can be seen that the complainant has miserably failed to make out any compelling or substantial reason to interfere with the order of acquittal recorded by the trial court and to disturb the double presumption of innocence secured in favor of the accused as per the impugned judgment. In the result, I find no merit in this appeal and accordingly the same is dismissed. **V.K.MOHANAN, JUDGE** skj