M. Haridasan v. Kumaran S/o Koru & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 11[TH] DAY OF JANUARY 2024 / 21ST POUSHA, 1945 CRL.APPEAL NO. 1780 OF 2007** **AGAINST THE JUDGMENT DATED 17.08.2002 IN ST 452/1997 OF MUNSIFF MAGISTRATE COURT,PONNANI** **(Crl.L.P. 855/2007 OF HIGH COURT OF KERALA)** **APPELLANT/COMPLAINT:** **M.HARIDASAN S/O.ACHUTHAN, MANCHERI HOUSE,, CHIYYANOOR, KOKOOR.** **BY ADV SRI.RAJIT** ## **RESPONDENTS/ACCUSED & STATE:** - **1 KUMARAN S/O. KORU, MANJAKATTA HOUSE, PERUMUKKU, PANTHAVOOR P.O.,, CHANGARAMKULAM.** - **2 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY RAJESH SIVARAMANKUTTY R1 BY P.J.SABASTIN R2 BY SMT SEENA C., PUBLIC PROSECUTOR** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL** **HEARING ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.1780 of 2007 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1780 of 2007** **----------------------------------------------------------Dated this the 11[th] day of January, 2024** ## **JUDGMENT** The complainant in S.T.No.452 of 1997 on the files of the Judicial Magistrate of the First Class, Ponnani is the appellant. In the prosecution initiated by him for an offence under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act), the learned Magistrate acquitted the 1[st] respondent/ accused as per the judgment dated 17.08.2002. The said judgment is under challenge in this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code). 2. Heard the learned counsel for the appellant, the learned counsel for the 1[st] respondent and the learned Public Prosecutor. 3. The allegations in the complaint are the following: The 1[st] respondent owed an amount of Rs.75,000/- to the appellant. In order to repay that amount, the 1[st] respondent 3 Crl.Appeal No.1780 of 2007 issued Ext.P1 cheque. When the appellant presented the said cheque for encashment, it was returned unpaid by the banker for the reason 'insufficient fund'. A demand notice was sent, which was duly served on the 1[st] respondent. He did not send any reply or make the payment. 4. The 1[st] respondent appeared before the learned Magistrate and denied the accusation. At the trial, PWs.1 and 2 were examined and Exts.P1 to P7 were marked. When the 1[st] respondent was questioned under Section 313(1)(b) of the Code, he denied the incriminating circumstances appeared in evidence. He stated that the case was a false one. No defence evidence was adduced. 5. The trial court, after considering the evidence in detail, held that the prosecution evidence was insufficient to prove that Ext.P1 was issued in discharge of a debt or a legally enforceable liability. Instead, the case of the 1[st] respondent that it was obtained from him as a security was probabilised. Accordingly, the trial court found the 1[st] respondent not guilty of the offence. 4 Crl.Appeal No.1780 of 2007 6. The learned counsel for the appellant would submit that when issuance of the cheque with his signature was admitted by the 1[st] respondent, the presumption under Section 139 of the N.I.Act is liable to be drawn. The court below ignored that aspect and assigned wrong reasons to record a finding that the cheque was issued as a security and therefore no prosecution was possible based on Ext.P1. In the above regard, the learned counsel for the appellant places reliance on the decisions of the Apex Court in **Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197].** The Apex Court held therein that a meaningful reading of the provisions of the N.I.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 was further held that it was 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. The Apex Court also held 5 Crl.Appeal No.1780 of 2007 that if a signed cheque is voluntarily presented to the payee, towards some payment, the payee may fill up the amount and other particulars. Thus, when a cheque leaf is voluntarily signed and handed over by a person towards some payment, that would attract the presumption under Section 139 of the N.I. Act. 7. Going by the aforesaid principle, it must be proved that a cheque given in blank was in fact given towards some payment. That would indicate that proof of the signature in the cheque as that of the drawer alone is not enough to draw a presumption under Section 139 of the N.I.Act. The further fact that such a cheque was issued towards payment of some amount also has to be proved. The purport of Section 20 of the N.I. Act is exactly to that effect. That, when a negotiable instrument, wholly blank or incomplete, is given, the drawer gives the authority for the holder to make it complete. It means that when an incomplete or blank instrument is given, ordinarily it would carry an authority to complete it. Evidence that a blank cheque was given with signature may not always 6 Crl.Appeal No.1780 of 2007 lead to a presumption. But, once it is proved that such a signed blank cheque was given for making payment of some amount, a presumption is certainly available. In the light of the aforesaid principle of law, the evidence in this case can be analysed. 8. PW1, the complainant, deposed before the court that at the time when he lent money, he obtained the cheque as security. It was put to him that when Rs.5,000/- was lent to one Sankaranarayanan Namboothiri, the cheque was given to him by the 1[st] respondent as security. The said suggestion was not duly denied by PW1. His answer was that he did not know Sankaranarayanan Namboothiri. Similarly, he stated during cross-examination that he lent Rs.75,000/- to the 1[st] respondent and for making that payment he withdrew Rs.35,000/- from the State Bank of India, Changaramkulam Branch. When the 1[st] respondent strenuously contended that he did not borrow any amount from the appellant and the cheque was given as a security for the amount lent to Sankaranarayanan Namboothiri, which is not specifically denied, 7 Crl.Appeal No.1780 of 2007 the failure on the part of the appellant to produce evidence regarding withdrawal of Rs.35,000/- tells upon his credibility. 9. In the above context, the discrepancy noticed in Ext.P1 cheque by the trial court assumes importance. On a perusal of Ext.P1, it can be seen that the drawer, the 1[st] respondent, is a rustic person, having no English literacy. It is seen that the name of the payee is written in one ink and the amount is written in another ink in Ext.P1. Of course, PW1 stated in court that it was he, who wrote the name and amount in the cheque, but that was in the presence of the 1[st] respondent. It was put to PW1 that the name was in one ink and the amount was in another ink and sought his explanation. He did not offer any explanation. In the nature of the said evidence, the view taken by the trial court that execution of Ext.P1 is surrounded by suspicion cannot be said to be a perverse finding. Except the oral testimony of PW1, there is absolutely no evidence to prove execution of Ext.P1. In the light of the aforesaid discrepancies, the possible view is that execution of Ext.P1 is not duly proved. 8 Crl.Appeal No.1780 of 2007 10. 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 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 9 Crl.Appeal No.1780 of 2007 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.” ## 11. 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 10 Crl.Appeal No.1780 of 2007 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. 12. What the Apex Court held in **Central Bureau of Investigation v. Shyam Bihari and others [(2023) 8 SCC** **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. 13. Viewed in the light of the law laid down in the aforesaid decisions, I am of the view that the judgment of the 11 Crl.Appeal No.1780 of 2007 acquittal of the 1[st] respondent is not liable to be interfered with. The appeal fails. Accordingly, the appeal is dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr