K.R. SASI v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 25TH DAY OF OCTOBER 2013/3RD KARTHIKA, 1935 CRL.A.No. 254 of 2008 (B) ----------------------- AGAINST THE ORDER/JUDGMENT IN ST 2296/2005 of J.M.F.C.,VAIKOM DATED 19-06-2007 APPELLANT/COMPLAINANT: -------------------------- K.R.SASI, S/O.RAGHAVAN, ARUN NIVAS VEEDU, MAVELLOOR P.O., VELLOOR KARA, VELLOOR VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENTS/ACCUSED AND STATE: ---------------------------------- ## 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## 2. R.DEVANANDAN, KALLUVELIL HOUSE, MAVELLOOR P.O., VELLOOR KARA, VELLOOR VILLAGE. R2 BY ADV. SRI.P.M.NATESAN R1 BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ----------------------------------Crl.A.No.254 of 2008 -----------------------------------Dated this the 25[th] day of October, 2013** ## **JUDGMENT** By the judgment dated 19/6/2007 in S.T.Case No.2296 of 2005 of the court of the Judicial First Class Magistrate, Vaikom, the learned Magistrate acquitted the accused who faced the prosecution for the offence punishable under Section 138 of the N.I. Act, at the instance of the complainant and therefore the complainant therein preferred the present appeal. 2. The case of the complainant is that, during the month of June, 2005 the accused approached the complainant and requested for a loan of `50,000/- and thus on 03/07/2005 at the request of the accused, the complainant gave an amount of `50,000/- as loan to the accused and after receiving the loan amount, the accused signed and handed over a cheque which was filled up and brought. When the said cheque presented for encashment, the same was dishonoured due to insufficiency of fund in the account of the accused and Crl.A.No.254 of 2008 :-2-: thereafter though a statutory notice was served on the accused, no amount was paid and thus according to the complainant the accused committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, the complainant himself was examined as PW.1 and produced Exts.P1 to P5 documents, whereas from the side of the defence DW.1 was examined and produced Exts.D1 to D3 documents. The trial court finally found that Ext.P1 was not issued by the complainant to the accused for discharge of a legally enforceable debt owed by the accused to the complainant and consequently the accused found not guilty 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. 3. I have heard Sri.T.A.Unnikrishnan, the learned counsel for the appellant and Sri.P.M.Natesan, the learned counsel for the 2[nd] respondent. 4. The learned counsel for the appellant vehemently submitted that, the finding of the court below is incorrect and Crl.A.No.254 of 2008 :-3-: illegal as the evidence and materials on record were not properly evaluated and appreciated. It is also the contention of the learned counsel that the accused failed to rebut the presumption available in favour of the complainant under Section 139 of the N.I. Act. According to the learned counsel, the findings of the court below that the cheque was not issued in discharge of legally enforceable debt, is factually and legally unsustainable. Per contra, the learned counsel for the respondent/accused submitted that the case of the complainant rendered as improbable and unbelievable in view of the evidence adduced from the side of the defence and the accused has succeeded in making out a case as to how Ext.P1 cheque reached the hands of the complainant and therefore the finding of the court below is perfectly correct and legal and no interference is warranted. 5. I have carefully considered the submissions made by the learned counsel for the appellant as well as the respondent and I have gone through the evidence and materials on record. Crl.A.No.254 of 2008 :-4-: 6. The specific case of the complainant set forth in the chief-affidavit filed in lieu of chief-examination as well as in the complaint is that on the basis of the prior demand for a loan of `50,000/- the accused approached the complainant on 03/07/2005 and obtained the said amount and simultaneously issued a type written cheque bearing date 01/08/2005 towards the discharge of the said liability. Suffice to say, no other document or security seen to have obtained when such a huge amount of `50,000/- was allegedly given to the accused. In the present case the specific and definite defence taken by the accused, right from the time of issuing the reply to the statutory notice, is that while denying the entire transaction claimed by the complainant, according to the accused he had obtained a loan of `8,000/- from the Mahila Wing of SNDP Branch No.457 on 15/9/2003 and towards the security for the said amount, he had given a blank signed cheque to Sri.P.K.Mani, who was the Secretary of the SNDP Branch which was in turn handed over to the Womens' wing of SNDP branch and the complainant obtained the said blank signed Crl.A.No.254 of 2008 :-5-: cheque from the Secretary of the Womens' Wing, who is the wife of the complainant and he forged the cheque and presented for the purpose of the case. 7. It is the above version of the complainant and the defence examined by the court below on the basis of the available evidences and materials. In this juncture it is relevant to note that to prove the transaction as alleged by the complainant the complainant has miserably failed to produce any contemporary document except Ext.P1 cheque, or any other independent evidence. On the other hand, the accused by examining DWs.1 and 2 and by producing Exts.D1 to D3 tried to convince the court below about the falsity of the complainant's case and correctness of the defence version. After comparing and evaluation of the evidence on record the trial court opted to accept the defence version and rejected the case of the complainant, which approach, according to me, is correct and legal in view of the evidence on record. 8. As I indicated earlier, there is no independent evidence or documentary evidence to prove the transaction Crl.A.No.254 of 2008 :-6-: and the execution and issuance of the cheque as claimed by the complainant. Except the mere assertion that the complainant and the accused are friends, no evidence is adduced to show the depth of the acquaintance and also the so-called friendship so as to release such a huge amount to the accused, who is a cooli, without any security or proper record. In this juncture it is relevant to note that, the specific case of the complainant is that, the accused brought a filled up cheque through type written entries. When he was examined, his version is that the type written entries were made by one Gopi who typed the cheque in question, who is operating a photo stat machine at Velloor. As rightly pointed out by the learned Magistrate the said Gopi was not examined and no evidence is adduced. It is relevant to note that according to the accused, the complainant in a clandestine method obtained the cheque in question from his wife and to avoid such situation filled up the cheque with type written entries. So, Gopi is a material witness. Even the factum of filling up of the cheque through type written entries at the instance of the accused are not Crl.A.No.254 of 2008 :-7-: proved and the complainant by non-examination of said Gopi denied best evidence towards the execution of the cheque. 9. On the other hand to prove the consistent defence advanced by the accused right from the time of giving Ext.D2 reply notice, the accused has examined DW.1, who is none other than the Secretary of SNDP Branch No.457 and also produced Ext.D1 Minutes Book. In terms of the content of Ext.D1 Minutes Book DW.1 has deposed about the availing of loan of `8,000/- by the accused on 15/9/2003 from the Mahila Wing. Ext.D1 contemporary document namely the Minutes Book of Branch No.457 of SNDP shows that the cheque number which bear in Ext.P1 has referred in the above Minutes Book and particularly with respect to the meeting conducted on 19/2/2005, 31/7/2005, 7/8/2005 and 28/8/2005, the same are prior to the date of the alleged transaction. The first meeting is referred dated 19/2/2005. As per the evidence of DW.1 and the other defence Exhibits, the accused borrowed the amount from the SNDP branch on 18/8/2003 much earlier to the date of Ext.P1 cheque. It is also relevant to note that Crl.A.No.254 of 2008 :-8-: the meeting of the SNDP branch held on 07/10/2004, the committee discussed the non-return of the blank signed cheque given by the accused to the Women's wing. So, the contemporaneous document produced by the defence shows that, the cheque in question given much prior, to the date on which, the complainant claimed to have entrusted the said cheque with him by the accused, had reached the SNDP branch. The said fact itself is sufficient to demolish the entire case of the complainant and the same probablise the case of the accused. 10. In the light of the above discussion and the materials on record and in view of the above discussion I am satisfied that the trial court is fully justified and correct in its finding that Ext.P1 was not issued to the complainant for the discharge of a legally enforceable debt or by the accused to the complainant. 11. 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 Crl.A.No.254 of 2008 :-9-: ## held 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: ............ “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.254 of 2008 :-10-: (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). Thus, on examination of the facts and circumstances involved in the case and the evidence and materials on record Crl.A.No.254 of 2008 :-11-: in the light of the above decision of the Hon'ble Apex Court, according to me, the appellant has miserably failed in making out any compelling circumstances or circumstantial reason to interfere with the order of acquittal recorded in favour of the accused and the appellant also failed to show that the finding of the court below is perverse or illegal warranting interference with the finding of the court below, while exercising the appellate jurisdiction of this Court in the above appeal. In the result, I find no merit in this appeal and accordingly the same is dismissed. **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge