Mathew.K.M. v. Jose Vadakarayil and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 15[TH] DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943 ``` ``` CRL.A NO. 1427 OF 2006 ``` ``` AGAINST THE ORDER OF ACQUITTAL IN CC NO.4/05 DATED 09/03/06 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, KASARAGOD ``` ## **`APPELLANT:`** ``` MATHEW.K.M. S/O.JOSEPH, KAPPIL HOUSE, BADIBAGILU, NEW BUS STAND, KASARAGOD. ``` ``` BY ADV SRI.T.B.SHAJIMON ``` ## **`RESPONDENTS:`** - **`1 JOSE VADAKARAYIL, VADAKARAYIL HOUSE, EDAVARAMPU.P.O, CHERUPUZHA VIA., KANNUR DISTRICT.`** - **`2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.`** ``` BY ADV. ``` ## **`SRI.NOUSHAD K.A. - PUBLIC PROSECUTOR`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 02.02.2022, THE COURT ON 15.02.2022 DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1427 OF 2006 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the complainant in C.C. No.4/05 on the file of the Judicial First Class Magistrate Court II, Kasargod. The aforesaid complaint was submitted by him against 1[st] respondent herein alleging offence punishable under Section 138 of Negotiable Instruments Act. 2. The case of the appellant is that, towards repayment of the amount which the 1[st] respondent borrowed from the appellant herein, a cheque dated 29.01.2005 was issued by the 1[st] respondent for an amount Rs.3 lakhs. Upon presentation of the said cheque with his bank, the same was returned unpaid on 29.01.2005 with a memo containing an endorsement “funds insufficient”. The dishonour of the said cheque was intimated to the 1[st] respondent by way of a registered lawyer notice dated 02.02.2005 and calling upon him to pay the amount within 15 days. The notice was served upon him on 03.02.2005 and the 1[st] respondent sent reply raising untenable contentions. The complaint was submitted in the above circumstances. 3. In support of the averments in the complaint, the appellant ``` CRL.A NO. 1427 OF 2006 ``` ``` 3 ``` got himself examined as PW1 and Exts.P1 to P6 were marked. After completion of prosecution evidence, the 1[st] respondent was examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the trial were put to him. He denied the said materials and contended that the 1[st] respondent never had any transaction with the appellant herein and he denied the execution of the said cheque in favour of the appellant. It is stated by him that he was a subscriber of chitty conducted by One Joy Orathel under the name and style of “Athira Finance” wherein he was a subscriber of a chitty for an amount of Rs.90,000/-. The aforesaid chitty was bid by the 1[st] respondent in auction in the year 1997 and at the time of release of the said amount, the said Joy Orathel collected three signed blank cheques and a signed blank stamp paper worth Rs.50,000/- from the 1[st] respondent. Later, he paid the said amount, but he did not return the said cheque leaves and the stamp paper. It was contended that the present complaint is submitted by the appellant by misusing one of the cheques collected by the said Joy Orathel. As defence evidence, the 1[st] respondent got himself examined as DW1 and Exts.D1 to D8 were ``` CRL.A NO. 1427 OF 2006 ``` ``` 4 ``` marked. 4. After considering the entire materials, the learned Magistrate arrived at the finding that the appellant failed to establish the guilt of the 1[st] respondent and accordingly the complainant was dismissed thereby acquitting the 1[st] respondent. This appeal is filed by the appellant challenging the said order of acquittal. 5. Heard Sri.Shajimon T.B., learned counsel for the appellant and Sri.Noushad K.A., learned Public Prosecutor for the 2[nd] respondent. Even though notice is served, there is no appearance for the 1[st] respondent/accused. 6. Learned counsel for the appellant contended that the finding entered by the learned Magistrate holding the 1[st] respondent not guilty, is unsustainable. The learned counsel points out that, while deciding the issues involved in the above complaint, the learned Magistrate failed to appreciate the impact of presumption as contemplated under Sections 118(a) and 139 of Negotiable Instruments Act. 7. On examining the evidence available on record, it can be ``` CRL.A NO. 1427 OF 2006 ``` ``` 5 ``` seen that, from the side of the appellant, he has produced six documents. Ext.P1 is the cheque in question, which is dated 29.01.2005 with number 06361. The specific case put forward by the 1[st] respondent right from the inception is that, he never had any transaction with the appellant herein. According to the 1[st] respondent three cheques having numbers 06361, 06362 and 06363 were collected by one Joy Orathel in the year 1997 as a security for the release of the amount in favour of the 1[st] respondent in connection with the chitty conducted by the said Joy Orathel. Even though the amounts repayable in respect of the chitty transaction were repaid along with interest accrued thereon, the said Joy Orathel did not return the said cheque leaves. Later, when he went to the office of M/s.Athira Finance, which is the establishment run by the said Joy, he found that the same was closed. Later, one Sunny Joseph who is a close relative of Joy Orathel had filed a criminal complaint by misusing the cheque bearing No.06363 before the Judicial First Class Magistrate Court - II, Thamarassery and a case was registered against the respondent as C.C. No.483/2001 for the offence under Section 138 ``` CRL.A NO. 1427 OF 2006 ``` ``` 6 ``` of Negotiable Instruments Act. Similarly, by mis-utilizing the cheque bearing No.06362 another relative of the said Joy, Sri.Augustin Joseph filed another criminal complaint before the Judicial First Class Magistrate Court - II, Hosdurg as C.C. No.136/2002. Now the present complaint is filed by the appellant herein misusing the 3[rd] cheque which was handed over to the said Joy. The above aspects are clearly mentioned in the reply notice sent by the respondent to the statutory notice issued by the appellant. Ext.D5 is the said reply notice, which is marked through DW1, who is the 1[st] respondent himself. 8. On going through the materials available, it can be seen that, the specific case of the appellant is that, an amount of Rs.3 lakhs was borrowed by the 1[st] respondent from him, on 02.01.2005. It is also his case that when the aforesaid amount was demanded back the 1[st] respondent issued a cheque on 28.01.2005. Thus the specific case of the appellant is that the cheque in question which is bearing No.06361 was issued to the appellant by the 1[st] respondent on 28.01.2005, in discharge of a liability created by 1[st] respondent on 02.01.2005. Apart from the aforesaid cheque, there are no other materials to substantiate ``` CRL.A NO. 1427 OF 2006 ``` ``` 7 ``` the transaction. Even though it is stated that the amounts were handed over by the appellant when the 1[st] respondent came to his residence at Kasargod, there are no witnesses to substantiate the same. On the other hand, right from the inception the 1[st] respondent was putting forward a specific case to the effect that this complaint is filed by misutilizing one of the cheques entrusted with one Joy Orathel in the year 1997 in connection with the chitty transaction. In order to substantiate the aforesaid transaction, the 1[st] respondent relies upon his deposition as well as Exts.D1 to D8. D1 is a complaint submitted by the 1[st] respondent herein against the Joy Orathel and Sunny Joseph in the year 2001 before the Judicial First Class Magistrate Court, Payyannur alleging offences punishable under Section 465 and 468 of Indian Penal Code. The specific contention raised by the 1[st] respondent in the said complaint was that the accused named therein have collected three blank cheques bearing Nos.06361, 06362 and 06363 and later the same were misutilized even though the amount payable to the said chitty transaction were repaid by the respondent. Ext.D2 is the First Information Report registered on Ext.D1. Ext.D3 ``` CRL.A NO. 1427 OF 2006 ``` ``` 8 ``` is a reply notice issued to the said Agustin Joseph to a statutory notice issued on behalf of him for initiating proceedings against the 1[st] respondent for the offence punishable under Section 138 of Negotiable Instruments Act in respect of cheque bearing registration No.06362. In the said reply notice also the 1[st] respondent has specifically raised this contention. Ext.D4 is the acknowledgment card of the said reply notice. Ext.D5 is the reply notice sent on behalf of the 1[st] respondent to the statutory notice issued by the appellant herein in respect of the cheque issued in this case. There also, the contention of misuse of the aforesaid three cheques with numbers of the said cheques were clearly mentioned. Ext.D6 is the acknowledgment card in respect of the same. Ext.D7 is the complaint submitted by the petitioner herein before the Judicial First Class Magistrate Court, Payyannur for misuse of the cheque bearing registration No.06363 and Ext.D8 is the First Information Report registered in respect of the same. In that complaint also the case as mentioned above is specifically raised by the 1[st] respondent. 9. The main contention raised of the learned counsel of the ``` CRL.A NO. 1427 OF 2006 ``` ``` 9 ``` appellant is by placing reliance upon the presumption contemplated under Section 118(a) and 139 of Negotiable Instruments Act. It is true that the aforesaid Section 118(a) provides that unless contrary is proved it is to be presumed that a negotiable instrument has been made or drawn for consideration. Similarly, Section 139 provides that unless contrary is proved, the holder of the cheque received the cheque for discharge in whole or in part of debt or liability. However, the fact is that the presumptions contemplated under the aforesaid provisions are rebuttable. In order to rebut the presumption, the accused has to put forward a probable case and it is not at all necessary that it should be a case beyond reasonable doubt. It is a well settled position of law that the presumption can be treated as rebutted when the accused advances a probable case with evidence and the consideration for the same is not strict proof but only ‘preponderance of probabilities’. In this case, the evidence of DW1 coupled with Exts.D1 to D8 clearly indicate that cheques in question along with the two other cheques were handed over to Joy Orathel in the year 1997 itself as blank cheques. It is also discernible from the ``` CRL.A NO. 1427 OF 2006 ``` ``` 10 ``` records that out of the said three cheques the two cheques were used by Sunny Joseph and Agustin Joseph who were close relatives of the said Joy Orathel and initiated proceedings against the petitioner herein for the offences punishable under Section 138 of Negotiable Instruments Act. Ext.D1 also indicates that, even in the year 2001, the 1[st] respondent had filed a complaint against Joy Orathel and Sunny Joseph alleging misuse of the aforesaid cheque leaves. In the said complaint also the cheque number which is the subject matter of the complaint herein namely 06361 is specifically referred to. Therefore, there is overwhelming evidence in support of the case put forward by the 1[st] respondent. Right from the inception, he raised such a contention consistently and there are materials produced in support of the same. Therefore, it is evident that the presumption in favour of the appellant by virtue of Section 118(a) and Section 139 stands rebutted. 10. The natural consequence of such rebuttal is that the burden to establish the offence allegedly committed by the 1[st] respondent is upon the shoulders of the appellant herein. When we consider the ``` CRL.A NO. 1427 OF 2006 ``` ``` 11 ``` evidence on record in that perspective, it can be seen that, apart from the cheque there are no materials to substantiate the claim of the appellant. Even though he stated that, the amount was borrowed by the 1[st] respondent herein on 02.01.2005 and the cheque was issued in discharge of the said liability on 28.01.2005 no documents are there, to substantiate the same. It is evident from the documents produced by the 1[st] respondent that the said cheque was already entrusted with Joy Orathel and there are no evidence available on record as to how it reached in the possession of the appellant. The contention of the appellant that it was handed over by the 1[st] respondent himself on 28.01.2005 is not believable, in the light of the specific case put forward by the 1[st] respondent and the documents produced by him in support of his contention. The appellant also could not produce any documents indicating the payment of any amount to the 1[st] respondent and also the source from which he paid the said amount. As observed by the learned Magistrate, the appellant is residing about 140 kilometers away from the residence of the 1[st] respondent and the 1[st] respondent is denying any acquaintance with the appellant as well. ``` CRL.A NO. 1427 OF 2006 ``` ``` 12 ``` Despite the same, no attempt has been made by the appellant to prove the transaction by adducing any evidence. In such circumstances, the conclusion arrived at by the learned Magistrate to the effect that the appellant failed to prove execution of the cheque is a sustainable view. 11. The learned counsel for the appellant contended that, since the 1[st] respondent has admitted the signature, the presumption has to be drawn in his favour. It is true that the 1[st] respondent has admitted the signature, but he never admitted that the said cheque was issued and handed over to the appellant herein. On the other hand, he has raised specific case that this cheque was handed over to one Joy Orathel in the year 1997 and the same was misused by the appellant, in connivance with the said Joy. In the light of the specific and consistent case amply proved by the 1[st] respondent through his deposition as DW1 and also with the help of Exts.D1 to D8, I do not find any scope for any interference. 12. In this regard it is also to be noted that in **Chandrappa and Others v. State of Karnataka [(2007) 4 SCC 415],** the Hon’ble Supreme Court examined the manner in which appreciation of ``` CRL.A NO. 1427 OF 2006 ``` ``` 13 ``` evidence is to be made by the appellate court while considering an appeal against acquittal. After elaborately discussing various decisions on the point, the Apex Court, formulated the guidelines to be followed by the appellate court. It was specifically observed therein that, while considering the evidence on record, the appellate court must bear in mind that in the case of acquittal there is a double presumption in favour of the accused. Firstly, the presumption available under the fundamental principles of jurisprudence that every person shall be presumed to be innocent, unless he is proved guilty and another presumption consequent to the acquittal by the trial court after appreciating the evidence. It is also a relevant aspect in this regard that, the trial court has arrived at the finding of the acquittal after examining the demeanour of the witness which advantage is not available for the appellate court. In **Chandrappa’** s case (cited supra) it is also held that if two reasonable conclusions are possible on the basis of evidence on record, the appellate court shall not disturb the finding of acquittal recorded by the trial court. In this case, I do not find any material to rebut the presumptions as mentioned above which ``` CRL.A NO. 1427 OF 2006 ``` ``` 14 ``` stand in favour of the 1[st] respondent herein. In such circumstances I am of the view that this appeal is devoid of any merit. Accordingly, it is dismissed by confirming the order of acquittal passed by the Judicial First Class Magistrate Court – II, Kasargod as per order dated 09.03.2006 in C.C. No.4/2005. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` ``` scs ```