Kuriyappan v. Sajiv Kozhiparambil and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934 Crl.L.P..No. 568 of 2012 ------------------------[AGAINST THE JUDGMENT DTD.30.12.2011 IN CC.28/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS - II, CHALAKUDY] PETITIONER/COMPLAINANT: ---------------------- KURIYAPPAN, AGED 70, S/O.CHAKAPPAN, MALIYAKKAL NAMBADAN HOUSE, SANTHINAGAR DESOM PUTHENCHIRA VILLAGE, MUKUNDAPURAM TALUK. BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENTS/ACCUSED AND STATE OF KERALA: ------------------------------------------- 1. SAJIV KOZHIPARAMBIL HOUSE, POOTHOLE DESOM THRISSUR VILLAGE, THRISSUR TALUK. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA AT ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. R1 BY ADV. SRI.A.C.DEVY R BY PUBLIC PROSECUTOR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11- 10-2012, ALONG WITH CRLP. 569/2012, CRLP. 608/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **V.K.MOHANAN, J. --------------------------------------------Crl.L.P.Nos.568, 569 & 608 of 2012 ---------------------------------------------Dated this the 11[th] day of October, 2012** ## **ORDER** Though the respondents in the above Crl.L.P.s are different persons, the petitioner is one and same and as the question of facts and circumstances involved in these cases are identical, the above Crl.L.P.s are heard together and being disposed by this common order. 2. The petitioner in the above three Crl.L.P.s, are the complainant respectively in C.C.Nos.28 of 2011, 25 of 2011 and 27 of 2011 on the file of the Judicial First Class Magistrate-II, Chalakkudy and the petitioner is aggrieved by the judgment dated 30/12/2011 in the above three cases, by which the respondents in these cases, who are the accused therein and who faced prosecution for the offence punishable under Section 138 of the N.I. Act at the instance of the petitioner herein/complainant therein, are acquitted under Section 255 (1) of Cr.P.C. 3. The case of the complainant is that one Simon S/o.Madavana John owed a sum of `8,50,000/- to the complainant Crl.L.P.No.568/2012 & connected cases : 2 : and for realisation of the said amount,the complainant filed O.S.No.600 of 2009 and 612 of 2009 before the Sub Court, Irinjalakuda. The shop rooms belonging to the said Simon, which is situated in Sy.No.206/5 of Chalakudy Village were attached in those cases. It is the further case of the complainant that the accused and four others, who are claimed to be the creditors of said Simon decided to purchase the said shop rooms and thereafter, the accused and others approached the complainant and informed that the said property belonging to the said Simon is going to be sold out to another person and therefore, the accused and other persons propose to purchase some property from one Antony, S/o. Parokkaran Kunjippalu. According to them, they further propose that the liability in favour of the complainant shall be limited to Rs.6 lakhs, out of which Rs.3 lakhs will be paid by the said five persons, viz., Sajiv, Rajesh, Jogy, Razak and Prasobh equally at the rate of `60,000/- per head. Thereafter, according to the complainant, Crl.L.P.No.568/2012 & connected cases : 3 : each of the accused issued a cheque for `60,000/-. It is also the case of the complainant that the accused in the present cases and others further represented that towards the payment of balance of a sum of `3 lakhs, the complainant will be given 5 cents of property out of the entire property, which is going to be purchased from Parokkaran Antony. It is the further case of the complainant that when the said cheques were presented for encashment, the same were returned unpaid for insufficient fund and thereafter, though statutory notice were served on the accused, they failed to settle the transaction. Hence, according to the complainant, the present accused in the above three cases have committed the offence punishable under Section 138 of the N.I.Act. In Crl.L.P.No.569 of 2012 covered by C.C.No.25 of 2011, Ext.P1 is the cheque dated 9.12.2009 for `60,000/-. In Crl.L.P.No.608 of 2012 covered by C.C.No.27 of 2011, Ext.P1 is the cheque dated 9.12.2009 whereas Crl.L.P.No.568 of 2012 covered by C.C.No.28 of 2011, Ext.P1 cheque is dated Crl.L.P.No.568/2012 & connected cases : 4 : 9.12.2009. After an elaborate trial, learned Magistrate in all the above three cases has found that with regard to the liability of the so-called Simon in favour of the complainant, there is no clear evidence and with regard, the alleged transaction between the accused and the complainant also, there is no satisfactory evidence. It is also found that with regard to the execution of Ext.P1 cheques in these cases, there is no direct or indirect evidence available on record. Accordingly, in all cases, the learned Magistrate has held that the complainant has miserably failed to the execution of Ext.P1 and prove cheque consequently, the accused in all the above cases are acquitted. It is the above findings and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for under Section 378(4) of the Cr.P.C. in the above leave petitions. 4. The learned counsel for the petitioners in the above leave petitions vehemently submitted that the respondents Crl.L.P.No.568/2012 & connected cases : 5 : herein/accused therein and others, who claimed themselves to be the creditors of the said Simon, decided to purchase the said shop rooms in question and accordingly, they approached the complainant and informed the same to the complainant and thus, the learned counsel submitted that negotiations were taken place and the liability of the complainant was limited to `6 lakhs out of which `3 lakhs was paid by the said five persons at the rate of `60,000/- per head and thus, the accused issued the cheque in question towards the discharge of the said liability. The learned counsel submitted that the court below miserably failed to take note of the settlement arrived, which points towards the liability of the accused and thus, the accused issued the cheque towards the discharge of a legally enforceable debt. But, the court below failed to consider those aspects. 5. It is also the contention of the counsel that the court below failed to consider the fact that PW1, the wife of the petitioner herein/complainant therein is an attestor to the Crl.L.P.No.568/2012 & connected cases : 6 : document by which settlement was arrived and therefore, no further proof was required. It is also the submission of the counsel that though statutory notice was served on the respondents/accused, no reply was given by them, which would go against the accused, but the trial court miserably failed to give any benefit in favour of the complainant on that count. It is also the contention of the learned counsel that the court below ought to have seen that the strong circumstances in favour of the complainant and against the accused are connected with the availability of cheque with the complainant, but the court below miserably failed to consider those facts. Therefore, the counsel submitted that in case the appeals are entertained, there is every possibility to interfere with the findings of the court below and to reverse the order of acquittal and therefore, these petitions deserve to be allowed. 5. I have carefully considered the arguments advanced by learned counsel for the petitioner and I have gone through the Crl.L.P.No.568/2012 & connected cases : 7 : judgment which are sought to be impugned. 6. In the light of the arguments advanced by the learned counsel for the petitioners and in the light of the findings of the court below, which are based upon the evidence and materials referred to in the judgment in question, the point that arises for consideration is whether the petitioner in these petitions succeeded in making out a prima facie case in support of his challenge against the findings of the court below and the order of acquittal recorded in favour of the respondents/accused. 7. Admittedly, in all the above cases, except one person Mary is examined as PW1, who is none other than the wife of the complainant. The learned Magistrate has found that absolutely, there is no evidence adduced to prove the execution of cheques in question. The complainant did not turn up and mount to the box and no evidence is given. The evidence was given by PW1, the wife of the complainant on the strength of the Power of Attorney executed by the complainant in favour of his Crl.L.P.No.568/2012 & connected cases : 8 : wife. The learned Magistrate has found that in the proof affidavit filed by PW1, there is absolutely no affirmation to the effect that she had personal knowledge regarding the transaction involved in the above case. The learned Magistrate has also found that in the proof affidavit, there is not even a single statement with respect to the execution of Ext.P1 cheque. In all the judgments sought to be impugned, the learned Magistrate has extracted the relevant portion from the proof affidavit of PW1, which reads as follows:- “ട� 3,00,000/- കയ�ല പ�ത�യടക� മ�ല�റഞ ഓമ����ത��� തമ�ണ 60,000/കയ�ക� ഓമ����ത��� വ�മ�വറ വ�ക �കള തന�ട�ളത�ക�ന�. ട� 60,000/- കയ�ക� പ�ത� മ!റ� ബ�ങ� ഓഫ�പട��നക'ര ��ലക�ട� ശ�ഖയ�വല 042003-0 നനര വ�ക� 9.12.2009 ത0യത� �ച� ��ദ�ക� വക�ട�ക�കയ�ണ�യ�.” The learned Magistrate has found that in the proof affidavit, there is no averment to the effect that the accused had signed and executed the said cheque in the presence of PW1, the Power Crl.L.P.No.568/2012 & connected cases : 9 : of Attorney Holder of the complainant. So, from the above facts and circumstances, it can be seen that even according to the complainant, the transaction was between the complainant and the accused, but he did not appear before the court and adduce evidence regarding the transaction and the execution and issuance of the cheque. The facts connected with those transactions are exclusively within the knowledge of the complainant. As referred to above, in the proof affidavit of PW1, the Power of Attorney Holder of the complainant, there is no whisper regarding the details of the execution and issuance of the cheque and also there is no averment to the effect that PW1 was aware of the transaction and she has direct knowledge about those aspects. If that be so, according to me, no interference is possible with the findings of the court below on the ground of perversity or illegality. The learned Magistrate has assigned acceptable and well-found reasons in support of his finding and those reasoning are further supported by the evidence and Crl.L.P.No.568/2012 & connected cases : 10 : materials on record. Therefore, it cannot be said that either the judgment of the trial court or the findings therein are perverse. 8. In a recent decision of the Apex Court reported in v. **State of Rajasthan Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Hon'ble Apex Court has held as follows:- “ _In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.”_ Thus, on examination of the facts and circumstances involved in the present cases, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of Crl.L.P.No.568/2012 & connected cases : 11 : innocence bolstered as per the judgment in question. Therefore, I find no ground to grant special leave as prayed for, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petitions are dismissed. **V.K.MOHANAN,Judge** MBS/