K.S. Samuel v. Regi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** ## **CRL.A.No.1652 OF 2006** **[AGAINST THE JUDGMENT DATED 3.2.2006 IN CRL.APPEAL NO.73 OF 2005 ON THE FILE OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-1, MAVELIKKARA.]** **[AGAINST THE JUDGMENT DATED 15.1.2005 IN C.C. NO.707 OF 2003 ON THE FILE OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-1, CHENGANNUR.]** ## **APPELLANT/RESPONDENT/COMPLAINANT:** **K.S.SAMUEL** **KAVUNKAL VEEDU, PERRISSERY MURI, PATHIYOOR VILLAGE,, CHENGANNUR.** ## **BY ADV. SRI.P.VINODKUMAR** ## **RESPONDENTS/APPELLANT AND STATE/ACCUSED AND STATE:** - **1 REGI, S/O. P.V. SAMUEL, PUTHIYA PURACKAL VEEDU, PUTHENKAVU,, CHENGANNUR.** **2 SATATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R1 BY ADV. N.ASHOK KUMAR R1 BY ADV. SRI.N.ASHOK KUMAR** ## **OTHER PRESENT:** ## **R2 BY SRI.K.B.UDAYAKUMAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-11-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.1652 OF 2006 2** ## JUDGMENT Dated this the 11th day of November 2020 .. The appellant is the complainant in C.C.No.707 of 2003 on the file of the Judicial First Class Magistrate Court-1, Chengannur. 2. The above case is a prosecution initiated against the 1[st] respondent herein alleging offence punishable under Section 138 of the Negotiable Instruments Act. 3. The case of the complainant is that, the accused borrowed an amount of Rs.1,35,000/- from the complainant and on demand he issued a cheque bearing No.029995 dated 18.9.2003 for Rs.1,35,000/- drawn on the Federal Bank Ltd., Chengannur branch. The complainant presented the cheque in the Catholic Syrian Bank Ltd.,Chengannur branch for collection of the amount and the cheque was returned unpaid for the reason of 'insufficiency of funds' in the account ## **CRL.APPEAL NO.1652 OF 2006 3** of the accused. The complainant sent a registered notice to the accused on 23.9.2003 through his counsel and even after the receipt of the notice the accused did not repay the amount covered by the cheque and hence it is alleged that the accused committed aforesaid offence. 4. To substantiate the case, the complainant himself was examined as PW1. Exhibits P1 to P7 are the documents marked on the side of the complainant. Exhibits D1 was produced by the complainant himself. 5. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 138 of the Negotiable Instruments Act. He is sentenced to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.1,35,000/- to the complainant under Section 357(3) Cr.P.C. 6. Aggrieved by the conviction and sentence, ## **CRL.APPEAL NO.1652 OF 2006 4** the accused filed an appeal as Crl.Appeal No.73 of 2005 before the Sessions Court, Mavelikkara. The appeal was considered by the Additional Sessions Judge-1, Mavelikkara. After going through the entire oral and documentary evidence, the trial court found that, the accused is not guilty under Section 138 of the Negotiable Instruments Act. Accordingly the appeal was allowed and the conviction and sentence imposed on the accused were set aside. 7. Aggrieved by the order of acquittal passed by the appellate court, this Criminal Appeal is filed. 8. Heard the learned counsel for the Appellant/complainant and the learned counsel for the 1[st] respondent/accused. Heard the learned public prosecutor also. 9. The counsel for the complainant submitted that, the appellate court erred in interfering with the well considered judgment of the trial ## **CRL.APPEAL NO.1652 OF 2006 5** court. The counsel submitted that, the appellate court wrongfully relied Ext.D1 document. The counsel submitted that, there is nothing in Ext.D1 to show that, the accused paid the amount. The counsel submitted that, it is not mentioned in Ext.D1 that, the interest mentioned in Ext.D1 is annually. The counsel submitted that, there is a presumption in favour of the complainant. The counsel submitted that, the appellate court erred in interfering with the well considered judgment of the trial court. 10. The counsel for the accused submitted that, the appellate court after considering the entire oral and documentary evidence came to the definite conclusion that, the accused is not guilty under Section 138 of the Negotiable Instruments Act. 11. The point for consideration in this case whether the accused committed the offence under Section 138 of the Negotiable Instruments Act ? ## **CRL.APPEAL NO.1652 OF 2006 6** 12. The appellate court after considering the entire oral and documentary evidence in detail came to a definite conclusion that, the accused has not committed the offence under Section 138 of the Negotiable Instruments Act. The learned Sessions Judge mainly relied Ext.D1 document. The learned Sessions Judge, after going through the contents in Ext.D1 letter along with the oral evidence of the witnesses, came to a definite conclusion that, the amount mentioned in Ext.P1 cheque would not be the amount actually due from the accused if the interest is calculated at 18% per annum on the basis of Ext.D1 letter. The learned Sessions Judge also found that, accused could establish through the evidence of Ext.P1 cheque and D1 letter that, the amount mentioned in the cheque was not the one actually due from him and the notice issued by the complainant demanding the amount more than the amount actually due from him cannot be said to be a ## **CRL.APPEAL NO.1652 OF 2006 7** proper notice as contemplated under Section 138 of the Negotiable Instruments Act and the case of the accused is more probable and believable than the case of the complainant and as such, the accused rebutted the presumption under Section 138 of the Negotiable Instruments Act. The relevant paragraphs of the impugned judgment are extracted hereunder: _“13. There is some force in the submission made by the counsel for the appellant that it is true that the complainant had the authority to fill the cheque for the amount due to him from the accused and present the cheque at the time of settlement of the account through the cheque was given as blank on an earlier occasion. But in this case the accused is disputing the amount mentioned in the cheque. Even assuming that there was a settlement of account during September,2003, the amount mentioned in the cheque could not be the amount actually due as if interest is calculated at 18% per annum on the basis of Ext.D1 letter_ ## **CRL.APPEAL NO.1652 OF 2006 8** _then including the interest the amount will come to only Rs.1,12,000/- and not Rs.1,35,000/-. Further the counsel for the appellant also submitted that considering the amount mentioned in the cheque it is clear that his case is probable that during 3[rd] week of September,2003 the complainant came to him and wanted to pay 10% per month as interest after deducting the amount paid but he was not agreeable for the same. The complainant had calculated the amount up to December,2003, the probable date of filling the complaint even at the time when the notice was issued and calculating the interest at 10% per annum for total amount of Rs.1,00,000/- then the total amount payable will come to Rs.2,10,000/including interest he had deducted Rs.75,000/- already paid by him, then the amount will come to Rs.1,35,000/and that was the amount mentioned in the cheque which the accused had not agreed to pay. If the calculation is made as submitted by the counsel,the amount mentioned in the cheque tallies with the calculation made by the counsel for the appellant. The accused had a specific case even in_ ## **CRL.APPEAL NO.1652 OF 2006 9** _the reply notice that the amount has to be paid after one year and since the accused was not amenable for the demand for payment of interest at the rate of 10% per annum as claimed by the complainant during 3[rd] week of September 2003, he had presented that cheque after filling the cheque for exorbitant amount which is not legally due from him. This fact is probablised in view of the circumstances mentioned above. 14. The counsel for the respondent relied on the decision reported in 2002(2) KLT 652(Kochayippa V. Suprasidhan) and argued that merely because the amount claimed in the cheque is more that the amount paid it will not affect the case of the complainant. It is true that in that decision it has been held that merely because there is difference in the amount written in the cheque from the actual debt due it cannot be said that there is no cause of action available to the payee under Sec.138 of the Act and it cannot be taken as a ground to acquit the accused. But in that case the amount borrowed was Rs.80,000/- during 1995 and a post dated cheque was given for_ ## **CRL.APPEAL NO.1652 OF 2006 10** _Rs.1,00,000/- putting the date after 2 years and the complainant had explained that the excess amount mentioned in the cheque represents the interest payable for the amount. So the Hon’ble High Court has held that when the cheque become a cheque only on the date on which it was written in the cheque, it cannot be said that the amount was not due on that date. But in this case the complainant had no such case. The specific case in the complaint as well at the time of evidence was that the accused borrowed Rs.1,35,000/from him during January 2003 and issued Ext.P1 cheque in discharge of that liability. But evidence in the case will go to show otherwise. So there is some force in the submission made by the counsel for the appellant that the amount mentioned in the cheque is not really due or legally due from the accused and it cannot be said that the cheque was issued by the accused in discharge of a legally enforceable debt so as to attract offence under Sec.138 of the Act. It is not necessary that the accused must adduce independent evidence to prove his case. He can even rely on_ ## **CRL.APPEAL NO.1652 OF 2006 11** _the evidence of the complainant to prove his case. In this case the accused had established through the evidence of PW1 and Ext.D1 that the amount mentioned in the cheque was not really due and the notice issued by the complainant demanding the amount more than the amount actually due cannot be said to be a proper notice as contemplated under Sec.138 of the Act and the case of the accused is more probable and believable than the case of the complainant and as such he had rebuted the presumption under Sec.139 of the Act and proved that the cheque was not supported by consideration for the amount mentioned in the cheque and it was not issued by him as claimed by the complainant in the complaint. The appreciation of the evidence made by court below regarding the aspects highlighted by the defence is unsustainable in law. Further the case of the accused is that the cheque was presented prematurely also appears to be probable in the circumstances of the case and as such it can be safely concluded that the complaint had failed to establish his case as_ ## **CRL.APPEAL NO.1652 OF 2006 12** _mentioned in the complaint and as such it cannot be said that the accused had committed the offence punishable under Sec.138 of the Act as the cheque was presented by the complainant showing more amount than the amount actually due and presented the cheque prematurely before the time agreed upon between the parties. So the lower court was not justified in coming to the conclusion that the accused had committed the offence punishable under Sec.138 of the Act and the consequential conviction entered by the court below for the offence is also unsustainable in law and hence the same in liable to be set aside. The appellant is entitled to get acquittal of the charge levelled against him u/s 138 of the Act giving him the benefit of doubt. The point is answered accordingly.”_ 13. I see no reason to interfere with the finding of fact by the trial court. It is now well settled by several judgments of the Apex court that, once the accused is acquitted by the trial court, the presumption of innocence is **CRL.APPEAL NO.1652 OF 2006 13** strengthened. The Apex court in **Sampat Babso Kale** **v. State of Maharashtra** [AIR 2019 SC 1852] and **Chandrappa and Others v. State of Karnataka** [(2007) 4 SCC 415] considered this point. The relevant portions of the judgment of **Chandrappa's case** (supra) are extracted hereunder: _“40. In Ramanand Yadav v. Prabhu Nath Jha this Court observed: (SCC pp.614-15, para 21)_ “21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the ## **CRL.APPEAL NO.1652 OF 2006 14** guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.” “41. Recently, in Kallu v. State of M.P. this Court stated : (SCC pp.317-18, para 8) _“8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt._ ## **CRL.APPEAL NO.1652 OF 2006 15** _Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court” (emphasis supplied)._ 14. The appellate court after considering the oral and documentary evidence in detail, came to a definite conclusion that, the accused is not guilty under Section 138 of the Negotiable Instruments Act. I see no reason to interfere with the acquittal order passed by the learned Sessions Judge. Hence, this criminal appeal is dismissed confirming the judgment dated 3-2-2006 in Crl.Appeal No.73 of 2005 of the Additional Sessions Judge-1, Mavelikkara. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** **JUDGE**