Leeba Sukumaran v. K.J. Shaji and State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 20TH DAY OF JANUARY 2014/30TH POUSHA, 1935 CRL.A.No. 1479 of 2003 (C) --------------------------[AGAINST THE JUDGMENT IN CC 42/2000 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD DATED 29-07-2003] APPELLANT(S)/COMPLAINANT: ------------------------LEEBA SUKUMARAN, D/O.V.T.BALAN, VATTEKKATT HOUSE, BLANGAD, CHAVAKKAD, MANAGING PARTNER, SREERAM HIRE PURCHASE, THRIPRAYAR, THRISSUR. BY ADV. SRI.K.N.PADMAKUMAR RESPONDENTS(S)/ACCUSED & STATE: ------------------------------1. K.J.SHAJI, S/O.JOSEPH, KUTTIKKADAN HOUSE, THRIPRAYAR, P.O.NATTIKA, THRISSUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.P.K.MANOMOHANAN R2 BY PUBLIC PROSECUTOR SRI.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 1479 of 2003** **---------------------------------------Dated this the 20[th] day of January,2014** ## **J U D G M E N T** This appeal is preferred at the instance of the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act'), since the appellant/complainant is aggrieved by the judgment dated 29.7.2003 of the court of the Judicial First Class Magistrate, Chavakkad by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The name and address of the complainant is shown in the cause title of the complaint as V.T.Balan, aged 59 years, S/o.Thurayappan, Vattekkatt House, P.O.Blangad, Chavakkad-Thrissur District (Managing Partner, Sreeram Hire Purchase, ThriprayarP.O.Nattika). During the pendency of the complaint in the trial court, Mr.V.T.Balan, the original complainant expired and as per the order CRL.A.No. 1479 Of 2003 :-2 -: dated 26.2.2003, the daughter of the original complainant viz., Leeba Sukumaran is impleaded as additional complainant. The substance of the allegation in the complaint is that the accused approached the complainant on 4.10.1996 and availed a loan of `98,000/- for the purchase of a vehicle bearing Regn.No.KL8/G-9307 Ambassadar car and executed a hire purchase agreement with the company. As per the terms of the agreement, the accused agreed to pay the amount in 36 equal monthly instalments of `3,702/-. But, the accused had paid only 16 instalments and thereafter, he committed the default. It is the further case of the complainant that though notices were issued to the principal debtor and the guarantor to perform the conditions stipulated in the judgment, the said notices were not accepted. Thus, according to the complainant, a lawyer notice was caused to send and when the accused received the same, he approached the company and agreed to purchase the above vehicle by payment of remaining instalments in lumpsum and thus, the settlement amount of `70,000/- has been fixed CRL.A.No. 1479 Of 2003 **==> picture [25 x 9] intentionally omitted <==** and towards the discharge of the said liability, the accused issued a crossed cheque dated 29.4.1999 in favour of the complainant viz., V.T.Balan. Thus, when the said cheque presented for collection through the complainant-Bank viz., Nattika Firka Co-operative Rural Bank Ltd. No.1251, Valappad Branch, Vatanappally, the same was returned as unpaid due to insufficiency of fund in the account of the accused. According to the complainant, he caused to issue lawyer notice to the accused demanding the money covered by the dishonoured cheque, but the accused refused to receive the notice and return the same as unclaimed. So, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, one Narayanan who is the Power of Attorney Holder of the additional complainant is examined as PW1. The learned Magistrate refused to accept the evidence of PW1 as the same is unbelievable particularly when he joined the company only recently and he has no direct knowledge about the CRL.A.No. 1479 Of 2003 :-4 -: transaction. The learned Magistrate has also found that the complaint is not maintainable since Sri.V.T.Balan in his personal capacity has not taken any action or filed complaint against the accused, but it is on behalf of the company the complaint is filed against the accused. According to the learned Magistrate, the complaint ought to have been filed in the personal capacity of the original complainant viz., V.T.Balan, instead of filing on behalf of the company, particularly when Ext.P1 cheque is not issued by the accused in favour of the company. It is on the basis of the above finding, the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.and the present appeal is directed against the above acquittal of the accused. 3. Heard Sri.K.N.Padmakumar, the learned counsel appearing for the appellant and Sri.P.K.Manomohan, the learned counsel for the first respondent. 4. Laying down the principles to be followed, while the CRL.A.No. 1479 Of 2003 :-5 -: appellate court considering an appeal against an order of acquittal, the Apex Court in the decision reported in Mokkiah & Anr. v. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88], 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._ CRL.A.No. 1479 Of 2003 :-6 -: _(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.”_ ## 5. On a consideration of the facts and circumstances involved in the case and the evidence on record in the present case, it can be seen that to substantiate the allegation raised in the complaint, no competent witness is examined and PW1, who examined in this case, CRL.A.No. 1479 Of 2003 **==> picture [25 x 9] intentionally omitted <==** has no direct knowledge about the transaction between the original complainant and the accused. So, according to me, the trial court is fully justified in refusing the evidence of PW1, the Power of Attorney Holder of the additional complainant, who is the daughter of the original complainant. So, the complainant has miserably failed to substantiate its allegation against the accused. 6. Going by the complaint, it can be seen that as rightly held by the learned Magistrate, the transaction is between the Sreeram Hire Purchase, Thriprayar, which is a partnership firm represented by its Managing Director and the accused. But, the cheque in question was not issued in the name of the above firm. More over, it is clear that there is no personal transaction between the original complainant viz., V.T.Balan and the accused and the allegation in the complaint shows that while availing financial assistance from the firm, the accused has executed a hire purchase agreement with the said firm. However, Ext.P2 cheque is a crossed cheque issued in the name of Mr.V.T.Balan CRL.A.No. 1479 Of 2003 :-8 -: and not in the name of the firm. Therefore, the said Balan ought to have filed the complaint in his personal capacity alleging the transaction between himself and the accused. But the original transaction as I indicated earlier is between the said firm and the accused. If actually the transaction is between the firm and the accused, towards the discharge of the liability, the cheque should have been in the name of the firm or the company. In the light of the above facts and circumstances, it can be seen that the trial court is fully justified in acquitting the accused and the reason assigned by the learned Magistrate is perfectly correct and legal and it cannot be said that the reason given by the learned Magistrate is perverse or illegal so as to interfere in appeal and to disturb the double presumption secured by the respondent/accused, particularly in view of the decision cited supra. CRL.A.No. 1479 Of 2003 :-9 -: In the result, there is no merit in this appeal and accordingly, the same is dismissed. **V.K.MOHANAN** , Judge MBS/ CRL.A.No. 1479 Of 2003 :-10 -: **V.K.MOHANAN, J.** CRL.A.No. 1479 Of 2003 :-11 -: CRL.A.No. 226 OF 2003 J U D G M E N T Dated:29.10.2013 ## CRL.A.No. 1479 Of 2003 :-12 -: