K.N.Sushama v. P. Arjunan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 4TH DAY OF DECEMBER 2013/13TH AGRAHAYANA, 1935 CRL.A.No. 980 of 2002 ---------------------[AGAINST THE JUDGMENT IN ST 47/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT-V, THIRUVANANTHAPURAM (SPL.COURT FOR MARKLIST CASES) DATED 04-05-2002 APPELLANT(S)/COMPLAINANT: ------------------------- K.N.SUSHAMA, T.C.NO.27/609, GURU VIHAR, V.V.ROAD, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S)/ACCUSED: ---------------------- P.ARJUNAN, HOUSE NO.U.P.IV/114, LAVANYA, CHERUVAICKAL, SREEKARYAM P.O. THIRUVANANTHAPURAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2013, ALONG WITH CRL.A.NO.1023/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.Nos. 980 & 1023 of 2002 ----------------------------------------** Dated this the 4[th] day of December, 2013 ## **J U D G M E N T** The complainant in two separate proceedings for the offence punishable under Section 138 of the N.I.Act is the appellant in the above two appeals, which are directed against the common judgment dated 4.5.2002 in two separate proceedings i.e., S.T.Nos.30 and 47 of 2000. As the parties to both the above appeals are one and same and the question of facts and circumstances involved is identical, both the appeals are heard together and being disposed of by this common judgment. 2. The case of the complainant is that the accused borrowed `12,500/- and towards the discharge of that liability, the accused issued Ext.P1 cheque dated 25.6.1997, which is covered by S.T.No.30 of 2000. Similarly, the accused borrowed a sum of `25,000/- and towards the discharge of such liability, the accused issued another Crl.A.Nos.980 & 1023 of 2002 **==> picture [21 x 9] intentionally omitted <==** cheque dated 25.6.1997 which is covered by S.T.No.47 of 2000. In both the cases, the further case of the complainant is that when the above said cheques were presented for encashment, the same were dishonoured for want of sufficient fund in the account maintained by the accused and also the case of the complainant is that in spite of service of statutory notice on the accused, he failed to pay the amount covered by the dishonoured cheques and thus, according to the complainant, in both the cases, the accused has committed the offence punishable under Section 138 of the N.I.Act. Thus, in S.T.No.30 of 2000, the complainant herself is got examined as PW1 and produced Exts.P1 to P3 series from the side of the complainant. From the side of the defence, DW1 was examined. Same is the position in S.T.No.47 of 2000. Though the evidences were recorded in the above two cases separately, considering the nature of the transaction alleged, the nature of the evidence adduced and the contention taken, the learned Magistrate decided to dispose of both the cases together and Crl.A.Nos.980 & 1023 of 2002 **==> picture [21 x 9] intentionally omitted <==** four points are formulated for his consideration and the common question considered is whether the disputed cheques in both the cases are issued in discharge of liability of `12,500/- and `25,000/- as alleged. Answering to the above question, in paragraph 10, the learned Magistrate has found that there is absolutely no reliable evidence, materials or circumstances in favour of PW1/the complainant to accept the issuance of two different cheques on the same date for withdrawal from the same account on the same day by the same persons. It is further found that in the absence of reasonable and satisfactory explanation on the side of PW1, in this regard, the case of issuance of two blank signed cheques by the accused assumes much significance. Thus, the trial court finally found that the complainant failed to establish her case and consequently, the accused is found not guilty for the offence under Section 138 of the N.I.Act in both the cases and accordingly, he is acquitted under Section 255(1) of the Cr.P.C. in both the above cases. It is the above finding and order Crl.A.Nos.980 & 1023 of 2002 :-4-: of acquittal challenged in these two separate appeals. 3. Heard Sri. R.S.Kalkura, learned counsel for the appellant. Though notice is served on the respondent/accused by paper publication, nobody has entered appearance to defend the appeal. 4. In the light of the contentions advanced by the counsel for the appellant and in view of the defence taken by the accused in the trial court, the question to be considered is whether the trial court is justified in its finding and acquitting the respondent/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 in favour of the accused. 5. Many of the facts, which are crucial in a prosecution for the offence like the present one, are beyond dispute. It is the admitted fact of the appellant/complainant that the accused has issued two cheques of same day bearing same date i.e., 25.6.1997, though the amounts shown in each cheque are different. Of course, the case and Crl.A.Nos.980 & 1023 of 2002 **==> picture [21 x 9] intentionally omitted <==** counter case put forward by the parties to the dispute are different, but the complainant stated that the accused borrowed an amount of `12,500/- and `25,000/- and towards the discharge of the said liabilities, two separate cheques are issued. The case of the accused is that the complainant obtained blank cheques on two occasions connected with the employment offered by the complainant and as such, according to the accused, no amount is due to the complainant since no job was given. It is the above two different contentions connected with the dishonour of two cheques were considered by the learned Magistrate of the trial court. The fact that two separate cheques cover separate amounts, issued on the same date, bearing the same date is beyond dispute. It is on the basis of the above facts, the learned Magistrate in paragraph 13 of his judgment observed as follows:- “..................... _The date of borrowal is not mentioned in both the complaints. Ordinarily the issuance of 2 cheques for the withdrawal of amount from the same_ Crl.A.Nos.980 & 1023 of 2002 :-6-: _account on the same day by the same person cannot be ordinarily expected. What is expected normally is that Rs.37,500/- if due from the accused to the complainant for which cheque is issued, one cheque for Rs.37,500/- will be issued instead of issuing two cheques for Rs.12,500/- and Rs.25,000/- as happened in these cases. If there are any such circumstances for issuing two such cheques on the same day to be drawn from the same account, it has to be explained the to remove by complainant suspicious circumstances surrounding the issuance of these cheques. There is absolutely no reliable evidence, materials or circumstances in favour of PW1 to accept the issuance of two different cheques on the same date for withdrawal from the same account on the same day by the same person. In the absence of reasonable and satisfactory explanations on the side of PW1 in this regard, the case of issuance of 2 blank singed cheques by the accused assumes much significance. The possibility of obtaining blank signed cheque leaves by the creditor from the debtor cannot be completely ruled out and it is possible also. If the blank cheques were obtained by the creditor from the debtor, the creditor can very well threaten the debtor by making use of those blank cheque leaves and it can be manipulated as cheques for huge amounts for filing complaints under Section 138 of the N.I.Act and in that circumstances, the debtor may come for settlement and will be abide the demands made by the creditor................”_ Crl.A.Nos.980 & 1023 of 2002 :-7-: From the above extracted portion of the impugned judgment, it can be seen that the learned Magistrate, by assigning satisfactory reasons, refused to believe the case of the complainant and found that the complainant has failed to establish her case. If the case of the complainant is true that the accused is indebted to her for a total sum of `37,500/- though connected with two transactions, there was no necessity for issuing two separate cheques for the split up amount bearing same date. If there is an agreement reduced into writing stating the circumstances under which two separate cheques are issued on the same date, there would have been some substance in the contention of the complainant. In the absence of any such written document and plausible explanation, according to me, the learned Magistrate is perfectly justified in his finding and rejecting the case of the complainant and I find no perversity in the above approach of the learned Magistrate. 6. In the decision in Mokkiah & Anr. v. State, Rep. by the Crl.A.Nos.980 & 1023 of 2002 :-8-: Inspector of Police, Tamil Nadu [2013 (1) Supreme 88], wherein, while laying down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal, the Apex Court had 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 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._ Crl.A.Nos.980 & 1023 of 2002 ## :-9-: _(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.”_ Thus, on examination of the facts and circumstances involved in the case at hand, in the light of the dictum laid down by the Apex Court in the above decision, according to me, the complainant has miserably failed in making out any compelling circumstances or substantial Crl.A.Nos.980 & 1023 of 2002 **==> picture [27 x 9] intentionally omitted <==** reason to interfere with the order of acquittal recorded infavour of the accused thereby to disturb the double presumption of innocence secured by the accused as per the impugned judgment. So, also the finding of the court below cannot be treated as perverse or illegal warranting interference of this Court, while exercising the appellate jurisdiction of this Court, against the order of acquittal. In the result, there is no merit in these Criminal Appeals and accordingly, the same are dismissed. **V.K.MOHANAN, Judge** MBS/ Crl.A.Nos.980 & 1023 of 2002 :-11-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 Crl.A.Nos.980 & 1023 of 2002 :-12-: ## **JUDGMENT** Dated:11.11.2011