KURIAN JOSEPH v. TL FRANCIS and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945** **CRL.APPEAL NO. 1077 OF 2022** **AGAINST THE JUDGMENT DATED 22.06.2022 IN ST 5178/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PALA** **(Crl.L.P. 278/2022 OF HIGH COURT OF KERALA)** ## **APPELLANT/COMPLAINANT:** **KURIAN JOSEPH, AGED 76 YEARS, S/O. LATE JOSEPH, MYLADOOR HOUSE, PAYAPPAR.P.O, ANTHIYALAM KARA, VELLILAPPALLY VILLAGE, RAMAPURAM, PIN – 686651. BY ADVS. JOHN JOSEPH VETTIKAD C.JOSEPH JOHNY SAMSON MATHEW SAM** ## **RESPONDENTS/ACCUSED/STATE:** **1 T.L. FRANCIS, AGED 71 YEARS, PROPRIETOR, ALPHONSA LADIES COLLECTION, MAIN ROAD, PALA, PIN – 686575. 2 T.L. FRANCIS, AGED 71 YEARS, A/O LUCKA, THOTTAKKARA HOUSE, KIZHATHADIYOOR P.O., LALAM VILLAGE, KOTTAYAM DISTRICT, PIN – 686574. 3 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. SMT SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 16.11.2023, THE COURT ON 12.12.2023 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1077 of 2022 ## **P.G. AJITHKUMAR, J.** ## **--------------------------------------------------Crl.Appeal No.1077 of 2022 ---------------------------------------------------Dated this the 12[th] day of December, 2023** ## **JUDGMENT** The complainant in S.T.No.5178 of 2016 before the Judicial Magistrate of the First Class, Pala is the appellant. On his complaint alleging commission of an offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act), the 2nd respondent in his personal capacity and as the proprietor of the 1 st respondent, was tried. The trial court acquitted him. In this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code), the said judgment of acquittal is under challenge. 2. Despite receipt of notice, respondent Nos.1 and 2 did not choose to appear before this Court. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. The appellant filed the complaint with the following allegations. The 2nd respondent in order to meet the requirements of his business and also to purchase a property, demanded a loan of Rs.40 lakhs from the appellant. In order to repay Rs.15 lakhs that was borrowed by the 2nd respondent, he 3 Crl.Appeal No.1077 of 2022 issued a cheque dated 11.04.2016. When presented for enactment on 03.06.2016, the cheque was returned unpaid. Notice demanding payment of the amount due under the cheque was issued. Although received notice, the 2nd respondent failed to make payment. 4. Based on the said allegations in the complaint, summons was issued to respondent Nos.1 and 2. The 2nd respondent entered appearance and denied the accusation. Therefore, the appellant tendered oral evidence as PW1 and produced Exts.P1 to P8 to prove his case. DWs.1 to 3 were examined and Exts.D1 to D7 were marked on the side of respondent Nos.1 and 2. Exts.X1 to X3 were also brought on record. After considering the said evidence, the trial court held that respondent Nos.1 and 2 successfully discharged the burden to rebut the presumption available in respect of Ext.P1 cheque. It was held that the case put forward by the appellant that the money withdrawn by him from his bank on 27.01.2014 and 28.01.2014 was paid to the 2nd respondent in two instalments, on 27.01.2014 and 28.01.2014 was disproved. It was further found that from the oral testimony of DW3, who is the son of 4 Crl.Appeal No.1077 of 2022 the 2nd respondent and Ext.D5 account book maintained by the 2nd respondent, the defence case that the amount due to the appellant was paid back has been probabilised. Accordingly, the trial court concluded that the appellant failed to prove Ext.P1 cheque as one issued in discharge of a legally enforceable liability. 5. The learned counsel for the appellant strenuously contended that when issuance of the cheque was admitted by the 2nd respondent, the presumption under Section 139 of the N.I. Act was very much available. Therefore, the burden to show that Ext.P1 cheque was not supported by consideration was heavily on the 2nd respondent, but he failed to substantiate that plea. The evidence let in by the 2nd respondent through DWs.1 to 3 is absolutely insufficient to substantiate either that Ext.P1 is not supported by consideration or that he has discharged the debt owed by him. The learned counsel placed reliance in the above regard on **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197], M/s Kalamani Tex and another v. P.Balasubramanian [(2021) 5 SCC 283]** and **Rajesh Jain v. Ajay Singh [2023 SCC OnLine SC 1275]** . 5 Crl.Appeal No.1077 of 2022 6. In **Bir Singh [(2019) 4 SCC 197]** the Apex Court held that a meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. It was further held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 7. Reiterating the said principle, a three Judge Bench of the Apex Court in **M/s Kalamani Tex [(2021) 5 SCC 283]** held that the N.I.Act mandates that the signature of an accused on the cheque is established, then the 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon 6 Crl.Appeal No.1077 of 2022 the accused to discharge the presumption imposed upon him. A similar view was taken by the Apex Court in **Rajesh Jain [2023 SCC OnLine SC 1275]** also. It was held that Section 139 of the N.I. Act requires that the Court 'shall presume' the fact stated therein, it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'. 8. Therefore, the first question is whether execution of Ext.P1 is proved. PW1 deposed that the cheque was issued after due execution by the 2nd respondent on 15.02.2016. The contention of the 2nd respondent is that the cheque was given as security and the entire debt owed by him was discharged. As held in **Bir Singh [2019 (4) SCC 197]** once the signature in the cheque is admitted and the contention is that it was issued by the accused, the presumption under Section 139 of the N.I. Act is liable to be drawn. Therefore, a presumption under Section 139 of the N.I. Act is available in respect of Ext.P1. 7 Crl.Appeal No.1077 of 2022 9. The 2nd respondent admitted receipt of Rs.15 lakhs from the appellant. His case is that he borrowed the amount in three instalments in the year 2013 and at that time, blank signed cheques of himself and his wife were given as security. It was further contended that the said amount was repaid; every month Rs.78,000/- each was paid and lastly on the insistence of the appellant, Rs.15 lakhs was also paid. The evidence that is placed on reliance in order to prove such repayment is Ext.D5, an account book claimed to have been maintained by the 2nd respondent and oral evidence. PW3, his son, deposed in court that the handwriting in Ext.D5 was of the 2nd respondent, who by that time was not in a position to appear before the court and give evidence. No document for payment of Rs.15 lakhs has been produced. In Ext.D5 there are entries substantiating payment at the rate of Rs,78,000/- every month during the period from November, 2013 to June, 2015. By the said evidence, coupled with the oral testimony of DWs.2 and 3 may not be enough to prove satisfactorily that the whole amount due to the appellant was repaid. However, the said evidence is required to be considered in the light of the other circumstances 8 Crl.Appeal No.1077 of 2022 in order to decide whether the case put forward by the appellant is true or not. 10. The definite case of the appellant was that he withdrew Rs.15 lakhs from his account on two days and it was the said amount that was paid to the 2nd respondent as two payments; one on 27.01.2014 and the balance on 28.01.2014. It was further contended that in total Rs.39 lakhs was paid to the 2nd respondent and his wife. During examination in court, the appellant stated that apart from the present case, his son filed another case against the 2nd respondent alleging that the cheque issued by him for payment of Rs.9 lakhs was dishonoured. Similarly, the wife of the appellant filed another case against the 2nd respondent alleging that he issued a cheque for payment of Rs.15 lakhs, but the same was dishonoured. Although the appellant claimed that he received Rs.40 lakhs while he left from the post of Managing Director of M/s Lissy Rubbers Pvt.Ltd. and the said amount was paid, such details have not been stated in the complaint. The statement of accounts, Ext.P8, produced by the appellant does not reflect any such transaction. Although during examination, he undertook 9 Crl.Appeal No.1077 of 2022 that statement of his accounts for the relevant period would be produced, he did not. It is in the said circumstances, the falsity of the claim of the appellant that Rs.15 lakhs he withdrew from the bank on prior date were paid on 27.01.2014 and 28.01.2014 to the 2nd respondent assumes much importance. 11. DW1 is the Manager of HDFC Bank, where the appellant was maintaining his account. DW1 produced Ext.X1 statement of accounts relating to the account of the appellant. That statement of accounts reflects withdrawal of about Rs.15 lakhs, but from Ext.X2 series pay-in-slips, it is seen that the amounts so withdrawn were remitted to the account of his son on 23.01.2014 and 27.01.2014 respectively. The evidence does not show that another Rs.15 lakhs was withdrawn by the appellant from his account. If so, the case of the appellant regarding payment of Rs.15 lakhs to the 2nd respondent, for repayment of which issued Ext.P1 cheque turns out to be unbelievable. That would certainly lend support to the case of the 2nd respondent that the money he borrowed in 2013 was repaid and Ext.P1 cheque, which was issued as security in respect of that debt, was misused by the appellant. It is true 10 Crl.Appeal No.1077 of 2022 that the cases filed by the wife and son of the appellant against the 2nd respondent and his wife may not have much relevance in this case. However, that is a circumstance which would support the case of the 2nd respondent that the cheque issued by him and his wife were misused by the appellant, despite making repayments towards the debt. The court below after analysing the aforesaid evidence in detail came to the conclusion that the 2nd respondent succeeded in rebutting the presumption available in respect of Ext.P1 cheque. It was accordingly held that the evidence was insufficient to prove commission of the offence by the 2nd respondent. From the evidence adverted to above, it cannot be said that the said view of the court below is perverse or quite improbable. 12. The Apex Court in **Chandrappa and others v. State of Karnataka [(2007) 4 SCC 415]** enunciated the following general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal; “(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no 11 Crl.Appeal No.1077 of 2022 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 emphasize 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 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.” 12 Crl.Appeal No.1077 of 2022 13. In **Shyam Babu v. State of U.P. [(2012) 8 SCC 651]** the Apex Court held that it would not be possible for the appellate Court to interfere with the order of acquittal passed by the trial Court without rendering a specific finding, namely, that the decision of the trial Court is perverse or unreasonable resulting in miscarriage of justice. At the same time, it cannot be denied that the appellate Court, while entertaining an appeal against the judgment of acquittal by the trial Court, is entitled to re-appreciate the evidence and come to an independent conclusion. While doing so, the appellate Court should consider every material on record and the reasons given by the trial Court in support of its order of acquittal and should interfere only on being satisfied that the view taken by the trial Court is perverse and unreasonable resulting in miscarriage of justice. It was further held that if two views are possible on a set of evidence, then the Appellate Court need not substitute its own view in preference to the view of the trial Court which has recorded an order of acquittal. 14. What the Apex Court held in **Central Bureau of Investigation v. Shyam Bihari and others [(2023) 8 SCC** 13 Crl.Appeal No.1077 of 2022 **197]** is that in an appeal against acquittal, the power of the appellate court to re-appreciate evidence and come to its own conclusion is not circumscribed by any limitation. But it is equally settled that the appellate court must not interfere with an order of acquittal merely because a contrary view is permissible, particularly, where the view taken by the trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record. 15. Viewed in the light of the law laid down in the aforesaid decisions, I find no reason to interfere with the findings of the court below. The judgment of the court below is not liable to be reversed. The appeal is therefore dismissed. Sd/- **P.G. AJITHKUMAR, JUDGE** dkr