Mathew K. Cherian v. P.S. Bijju and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 ``` ``` CRL.A NO. 499 OF 2011 ``` ``` AGAINST THE ORDER/JUDGMENT ST 191/2009 OF JUDICIAL MAGISTRATE OF ``` ``` FIRST CLASS IV, KOTTAYAM Crl.L.P. 1006/2010 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/S:`** ``` MATHEW K.CHERIAN KOSAMATTAM HOUSE, MANGANAM.P.O., VIJAYAPURAM, KOTTAYAM REPRESENTED, BY POWER OF ATTORNEY HOLDER JACOB KURUVILLA,, THONIPURACKAL HOUSE, ERICADU, PUTHUPALLY,KOTTAYAM. BY ADV SRI.M.J.THOMAS ``` ## **`RESPONDENT/S:`** ``` 1P.S.BIJU, PARIYARATHU HOUSE, MAKKAPUZHA.P.O.,RANNI. 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADVS. SRI.A.K.HARIDAS – R1 SMT.SEETHA.S, PUBIC PROSECUTOR- R2 ``` r1 ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.A. No.499 of 2011 ## **C. S. DIAS, J.** **------------------------Crl.A. No.499 of 2011 ------------------------Dated this the 18[th] day of October, 2023** ## **JUDGMENT** The appeal is filed questioning the correctness and legality of the judgment in ST No.191/2009 passed by the Court of the Judicial Magistrate of First Class-IV, Kottayam, (Trial Court) finding the first respondent/accused not guilty for the offence under Section 138 of the Negotiable Instruments Act (for brevity, “N.I.Act”). For the sake of convenience, the parties are referred to as per their status before the Trial Court. 3 Crl.A. No.499 of 2011 ## **Brief facts** 2. The complainant had filed the above complaint, through his power of attorney holder, alleging that the accused had issued Ext P6 cheque in his favour for an amount of Rs.19,000/-, which, on presentation to the bank for encashment, got dishonoured by Ext P7 memorandum due to ‘insufficient funds’ in the bank account of the accused. Although the complainant had issued Ext P9 statutory lawyer notice and the accused had received the same, he did not pay the cheque amount. Hence, the accused committed the above offence. 3. The learned Magistrate took cognizance of the offence. The accused denied the substance of accusations made against him. In the Trial, the power 4 Crl.A. No.499 of 2011 of attorney holder of the complainant was examined as PW1 and Exts.P1 to P11 were marked in evidence. The accused denied the incriminating circumstances which appeared in the evidence against him in the questioning under Section 313 of the Code of Criminal Procedure ( in short, ‘Code’). The accused got himself examined as DW1 and marked Ext D1 chitty passbook in evidence. 4. The learned Magistrate, after appreciating the materials placed on record, by the impugned judgment, found the accused not guilty for the offence under Sec.138 of the N.I Act and consequentially acquitted the accused under Sec.255 (1) of the Code. 5. It is aggrieved by the said judgment that the present appeal is filed. 5 Crl.A. No.499 of 2011 6. Heard; Smt.Ruby K.Jose, the learned counsel appearing for the appellant, Sri.A.K Haridas, the learned counsel appearing for the first respondent and Smt.Seetha.S, the learned Public Prosecutor appearing for the second respondent/State. 7. Is there any illegality or error in the impugned judgment passed by the learned Magistrate? 8. Before proceeding to decide the appeal on merits, this Court reminds itself of its scope and powers in deciding an appeal against an order of acquittal. It is well-settled in a host of judicial pronouncements that the Appellate Court should be slow and watchful in interfering with an order of acquittal. It is only when the conclusions arrived at by the Trial Court is erroneous and the manifestly palpably perverse, 6 Crl.A. No.499 of 2011 Appellate Court should take a contrary view. It is more because an order of acquittal has the presumption of innocence in favour of the accused. 9. In **Jafarudeen vs. State of Kerala** [2022 KHC 6449], the Honourable Supreme Court, after referring to its earlier judgments, has laid down the broad principles to deal with appeals against orders of acquittal. It is apposite to refer to the relevant portion of the judgment, which reads as follows: ## “ _25. Scope of Appeal filed against the Acquittal:_ While dealing with an appeal against acquittal by invoking S.378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be considered a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. 7 Crl.A. No.499 of 2011 10. Recently, in **Rupesh Manger (Thapa) vs. State of Sikkim** (MANU/SC/1014/2023), the Honourable Supreme Court has observed that an Appellate Court may reverse an order of acquittal if it is so perverse and the conclusion is not plausible. Just because another view is possible, on re-appreciation of the evidence, the Appellate Court shall not disturb the finding of acquittal and substitute its findings to convict the accused. 11. With the above observations in mind, let us examine the materials on record and the law. 12. In the instant case, the complainant has alleged that the accused had issued Ext P6 cheque in his favour in discharge of a legally enforceable debt. The cheque, 8 Crl.A. No.499 of 2011 on presentation to the bank for encashment, got dishonoured due to ‘insufficient funds’ and despite receipt of the demand notice, the accused failed to pay the cheque amount. Hence, the accused committed the above offence. 13. Indisputably, the complaint was filed through the power of attorney holder of the complainant, who was examined as PW1. It is true that the complainant had proved the ingredients of the offence under Sec.138 of the N.I Act whereby the onus of proof shifted to the accused. 14. The accused got himself examined as DW1 and gave evidence that he was a resident of Ranni and he had no acquaintance with the complainant. In fact, he had availed a loan from the Kossamattom Bank, 9 Crl.A. No.499 of 2011 Ranni Branch and issued Ext P6 cheque as security for a loan availed from the bank. He paid the entire loan amount as evidenced by Ext D1 passbook and he had no transaction with the complainant. In the crossexamination of PW1 – the power of attorney holder of the complainant - the said witness admitted that the accused was a subscriber of the chitty that was conducted by Kossamattom Chit Funds, Ranni Branch and the entire transaction took place at Ranni. It is when the accused failed to pay the subscription to the chitty that he went to Kottayam and issued a cheque in favour of the complainant, who was the Managing Partner of the Kossamattom Chit Funds. 15. Indisputably, the complaint has been filed by the complainant ( Mathew K.Cherian represented by 10 Crl.A. No.499 of 2011 his power of attorney holder PW1) in his individual capacity. PW1 has not testified that the accused had any business transaction with the complainant in his individual capacity. Therefore, the learned Magistrate, on an appreciation of the oral testimonies of PW1 and DW1 and the materials on record, came to the legitimate conclusion that Ext P6 cheque was not issued towards a legally enforceable debt in favour of the complainant. Even otherwise, in **A.C Narayanan vs. State of Maharashtra** [ 2014 – 1-L.W 698] the Hon’ble Supreme Court has laid down the guidelines by which a complaint can be filed under Sec.138 of the N.I Act through a power of attorney holder. It is on unequivocal terms laid down that the power of attorney holder must have witnessed the transaction as an agent 11 Crl.A. No.499 of 2011 of the payee/holder in due course or possess and there should be a specific assertion in the complaint as to the knowledge of the power of attorney holder in the said transaction. 16. In the case on hand, in addition to the finding that there was no business transaction between the complainant and the accused as alleged in the complaint, there is also no specific assertion as to the competence and knowledge of PW1 as regards the alleged transaction between the complainant and the accused. Thus, I am of the definite view that the learned Magistrate has rightly concluded that Ext P6 cheque was not issued towards a legally enforceable debt. 12 Crl.A. No.499 of 2011 17. On a re-appreciation of the materials on record, this Court is of the definite view that there is no error or illegality in the impugned judgment passed by the learned Magistrate holding the accused not guilty for the offence under Sec.138 of the N.I Act. Thus, I confirm the said finding. Consequentially, the appeal is dismissed. sd/- sks/18.10.23 C.S.DIAS, JUDGE