Kuttisankara Guptan v. Chandramohan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH DAY OF OCTOBER 2013/17TH ASWINA, 1935 ## CRL.A.No. 2358 of 2008 [AGAINST THE JUDGMENT IN CRA 591/2004 of THE COURT OF ADDITIONAL SESSIONS JUDGE [FAST TRACK COURT NO.II), PALAKKAD DATED 04-06-2008 AND THE JUDGMENT DTD.10.11.2004 IN C.C.NO.753/2001 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPPALAM] APPELLANT(S)/RESPONDENT/COMPLAINANT: ----------------------------------KUTTISANKARA GUPTHAN, S/O.VALPPAILTHODI APPU GUPTHAN, KADAMPAZHIPURAM AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD. BY ADVS.SRI.JACOB SEBASTIAN SRI.S.SANTHOSH KUMAR (BALARAMAPURAM) RESPONDENTS(S)/APPELLANT/ACCUSED AND STATE: ------------------------------------------- 1. CHANDRA MOHANAN, S/O.CHUNDAKKATTIL RAMAKRISHNA GUPTHAN, 'DWARAKA', AZHIYANNUR DESOM, PULLUNDASSERI AMSOM, OTTAPPALAM, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. - R1 BY ADV. SRI.K.P.BALAGOPAL. - R2 BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 2358 of 2008 ----------------------------------------** Dated this the 9[th] day of October, 2013 ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act'), though initially succeeded in the first round litigation, i.e., during the trial, in appeal, at the instance of the accused, the lower appellate court acquitted the accused mainly on the ground that the transaction and execution of cheque is not proved as there is no substantial evidence from the side of the complainant. Thus, it is the above finding and order of acquittal recorded by the lower appellate court challenged in this appeal, at the instance of the complainant. 2. Heard Sri.Jacob Sebastian, learned counsel for the appellant and Sri.K.P.Balagopal, the learned counsel for the first respondent/accused. Crl.A.No. 2358 of 2008 :-2-: 3. The case of the complainant is that the accused borrowed an amount of `70,000/- on 5.1.1999 with an undertaking to pay 18% interest as per the pro-note executed by him and accordingly, on demand to repay the amount, the accused issued Ext.P1 cheque dated 30.10.2001 for `1,05,525/-, which when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the accused and no amount is paid in spite of a statutory notice served on him demanding the repayment of the amount. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. 4. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were produced and marked. From the side of the defence, though no witness was examined, Exts.D1 to D5 were produced. The trial court finally found that the complainant has succeeded in establishing his case against the accused holding that the evidence of PW1 coupled with Exts.P2 and P3 series Crl.A.No. 2358 of 2008 **==> picture [21 x 9] intentionally omitted <==** prove that the complainant has issued written notice to the accused informing bouncing of the cheque within the stipulated time and the accused failed to repay the cheque amount and thus, found that the accused has committed the offence punishable under Section 138 of the N.I.Act and consequently, he was sentenced to undergo simple imprisonment for three months and to pay a compensation of `1,05,525/- to the complainant under Section 357 of the Cr.P.C. and in default of payment of compensation, the accused was directed to undergo a further period of simple imprisonment for one month. 5. The above finding and order of conviction and sentence was challenged, at the instance of the accused by filing Crl.A.No.591 of 2004 before the Sessions Court, Palakkad and the learned Judge of the Court of the Additional Sessions Judge, Fast Track Court No.II, Palakkad by his judgment dated 4.6.2008, after setting aside the judgment of the trial court, acquitted the accused. Aggrieved by the same, the complainant in the trial court, who is the respondent in the Crl.A.No. 2358 of 2008 :-4-: lower appellate court, preferred the present appeal. 6. Among other contentions, the learned counsel for the appellant vehemently submitted that the money lending business of the complainant was legalised with effect from 7.7.1999 from the date of getting Ext.P5 money lending licence, which shows that the complainant was engaged in the business even on 5.1.1999, the date on which the accused allegedly borrowed `70,000/-. It is also the contention of the learned counsel that as evidenced by Ext.P6 receipt, the complainant has paid the fine and the other evidence on record shows that the transaction by which the accused borrowed the amount from the complainant and the execution of Ext.P1 cheque towards the discharge of the liability arose out of such transaction. Thus, according to the learned counsel, the lower appellate court is incorrect and illegal in interfering with the judgment of the trial court by which the accused was found guilty and accordingly, convicted him. 7. Per contra, the learned counsel appearing for the ## Crl.A.No. 2358 of 2008 :-5-: respondents/accused submitted that the evidence of PW1/the complainant cannot be believed as rightly done by the lower appellate court and as such, there is no evidence to prove the transaction including the execution of the cheque since the accused has succeeded in apprising the lower appellate court that the cheque in question was obtained at the time of the alleged borrowal of the amount since the complainant was engaged in money lending business. Therefore, according to the learned counsel, there is no scope of any interference with the judgment of the lower appellate court and the order of acquittal ordered in favour of the accused. 8. I have carefully considered the rival contentions advanced by learned counsel for the appellant as well as the respondents and I have perused the materials and evidence on record. 9. Though several divergent contentions are advanced, according to me, this Court need not go into all those contentions in view of the settled position of law. In the present case, the case of the Crl.A.No. 2358 of 2008 :-6-: complainant is that the accused borrowed the amount agreeing to repay the amount with 18% interest by furnishing a pro-note. So, the whole case of the complainant is based upon the pro-note allegedly executed by the accused, but no such pro-note is produced in the present case. A learned Judge of this Court in the decision reported in v. **Shaji Ignatious** (2009(2) KLT 491) has held that when it is alleged that the cheque was issued towards the repayment of amount due under a promissory note, without proving the execution of promissory note and the consideration of it, an offence under Section 138 cannot be made out. According to me, the above dictum laid down in the above decision is clearly applicable in the present case as no pro-note is produced in this case. Therefore, there is no scope for any interference with the judgment of the lower appellate court in acquitting the accused for the offence under Section 138 of the N.I.Act, especially in the light of the decision in Mokkiah & Anr. v. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme Crl.A.No. 2358 of 2008 :-7-: 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, it was 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._ _(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', very strong circumstances', 'distorted conclusions',_ Crl.A.No. 2358 of 2008 ## :-8-: _'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.”_ ## In the result, there is no merit in this Criminal Appeal and accordingly, the same is dismissed. **V.K.MOHANAN,** **Judge** MBS/ Crl.A.No. 2358 of 2008 :-9-: