Meena Mohan v. Raveendran Pillai and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935 CRL.A.No. 570 of 2008 (A) -------------------------- AGAINST THE ORDER/JUDGMENT IN CC 1605/2004 of J.M.F.C.-I, KOLLAM DATED 27-06-2007 ## APPELLANT/COMPLAINANT.: -------------------------- MRS. MEENA MOHAN, SREEKRISHNA VILASAM BUNGLOW, KUZHIYAM, CHEMMAKKADU P.O., KOLLAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU RESPONDENTS/ACCUSECD AND STATE.: ------------------------------------ 1. RAVEENDRAN PILLAI, S/O. SANKARAPILLAI, UPASANA, UPPODU MURI, EAST KALLADA. ## 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.M.V.THAMBAN R2 BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. -------------------------------------Crl.A.No.570 of 2008** ## **--------------------------------------Dated this the 13[th] day of November, 2013** ## **JUDGMENT** Aggrieved by the judgment dated 27/6/2007 in C.C.No.1605 of 2004 of the court of the Judicial First Class Magistrate-I, Kollam, the complainant therein preferred this appeal as the court below acquitted the accused, who faced the prosecution for the offence punishable under Section 138 of the N.I. Act at the instance of the complainant. 2. The case of the complainant is that on 28/2/2004, the accused issued a cheque for Rupees Seven lakhs in favour of the complainant towards the discharge of his liability due to the complainant and when the said cheque presented for encashment, it was dishonoured due to insufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of a statutory notice sent in his address. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. To substantiate the above allegation the complainant Crl.A.No.570 of 2008 :-2-: himself got examined as PW.1 and produced Exts.P1 to P5 documents. From the side of the defence no witness was examined. Exts.X1 to X3 were marked. The trial court finally found that the complainant did not succeed in establishing that the cheque in question was executed and issued by the accused and also failed to show passing of consideration connected with Ext.P1 cheque, particularly in view of the fact that on the date of the alleged transaction there was no fund in the account of the complainant. Consequently the accused is found not guilty and thus he is acquitted under Section 255(1) of Cr.P.C. This appeal is directed against the above finding and order of acquittal. 3. Heard Sri.P.Vijaya Bhanu, the learned Senior counsel appearing for the appellant and Sri.M.V.Thamban, the learned counsel appearing for the first respondent. 4. The learned counsel for the appellant vehemently submitted that the findings of the court below that, the complainant failed to prove the execution of cheque is incorrect since the cheque in question dishonoured not for the Crl.A.No.570 of 2008 :-3-: reason that the cheque bear different signature and not of the accused and therefore the above finding of the court below is incorrect. Another contention advanced by the learned counsel is that, in support of the finding of the learned Magistrate as there was no passing of consideration, the learned Magistrate heavily relied upon Exts.X1 to X3 documents which were not adduced in terms of Section 294 of Cr.P.C. and therefore those documents cannot be looked into. Therefore, according to the learned counsel the finding of the court below is incorrect and liable to be interfered and the order of acquittal deserves to be reversed. 5. Per contra the learned counsel appearing for the respondent submitted that even as per the evidence of PW.1, she did not see the execution of the cheque and therefore even if the signature is seen in Ext.P1 cheque is that of the accused it cannot be presumed that the accused executed and issued the cheque. It is also contented that Exts.X1 to X3 documents were produced on the basis of the petition filed by the defence and the same got marked and therefore there is no illegality in Crl.A.No.570 of 2008 :-4-: acting upon such documents. 6. I have carefully considered the contentions of the learned counsel for the appellant and the learned counsel for the respondent and I have perused the evidence and materials on record. 7. Though I have gone through the averments in the complaint and in the chief affidavit filed in lieu of chiefexamination, I failed to see any averment about the date of the exact transaction on the basis of which the alleged liability, due from the accused. In both the affidavit as well as in the complaint, what stated is that towards the discharge of the amount due to the complainant the accused issued the cheque for Rupees Seven lakhs in favour of the complainant on 28/2/2004. In this case it is relevant to note that the complainant is a lady and the accused is a male person with whom the complainant claimed transaction. There is no averment about the circumstances under which the complainant, who is a lady happened to give such a huge amount to the accused. In this juncture it is relevant to note Crl.A.No.570 of 2008 :-5-: that the case, put forwarded by the accused though it is not proved, is to the effect that there is no transaction between the complainant and himself and the cheque in question which belonged to him might have entrusted with the complainant by his own sister, who is not in good terms with the accused. If that be so, in the absence of any concrete evidence about the transaction, under which the liability created upon the accused to issue a cheque for a huge amount as in the present case, the complainant case cannot be believed. In the present case as rightly observed by the learned Magistrate PW.1-the complainant herself during her cross-examination has, in an unequivocal language, deposed before the court that she did not see the accused signing on the cheque. There is a slight correction in the cheque which was denied by PW.1. The admission made by PW.1 that she did not see the accused signing the cheque goes against the claim of the complainant that the accused executed and issued the cheque. On examination of the above admitted fact, according to me, the case put forwarded by the accused rendered as more probable. Crl.A.No.570 of 2008 :-6-: The execution of the cheque does not mean a putting of signature on the same. A learned Judge of this Court in the decision in **Joseph Vs. Gladis Sasi** [2010 (3) KLT 379] **,** has held the admission of signing in a blank cheque does not amount to admission of execution of the cheque. In the light of the above decision even if it is shown that Ext.P1 cheque bear the signature of the accused that does not mean that the accused executed and issued the cheque in favour of the complainant. In the present case as I indicated earlier the complainant did not see even the accused putting his signature on Ext.P1 cheque, therefore it cannot be said that the complainant has succeeded in proving the execution of the cheque as well. Thus, it can be concluded that the complainant has miserably failed to prove the transaction connected with which the cheque in question allegedly issued by the accused. Secondly the complainant has also failed to establish that the accused has executed and issued the cheque. 8. Besides the above, through the documentary evidence, namely, Exts.X1 to X3 the accused has succeeded in Crl.A.No.570 of 2008 :-7-: showing that at the time of the alleged transaction the complainant was not having sufficient financial capacity to release such a huge amount. Ext.X1 is the account statement and Ext.X2 is the ledger copy and Ext.X3 is also the ledger copy. Ext.X1 is the ledger extract showing, the account of the complainant in Indian Overseas Bank, Chemakadu Branch. On a perusal of the account extracted it can be seen that on or near about the alleged transaction, the complainant was not having that much cash balance in her account to release such a huge amount. In this juncture, it is relevant to note that as rightly pointed out by the learned counsel for the respondent, in ground 16 of the Appeal Memorandum the appellant has shown some transaction through the account of the complainant but the same were pertained to the year 2000. So, the documentary evidence produced at the instance of the defence shows that on the alleged period of transaction there was no requisite money balance in the account of the complainant, so as to give such a huge amount to the accused. The said fact is also sufficient to disbelieve the case of the Crl.A.No.570 of 2008 :-8-: complainant that she had released an amount of Rupees Seven Lakhs to the accused. 9. The learned counsel for the appellant vehemently submitted that Exts.X1 to X3 documents were not produced in terms of Section 294 of Cr.P.C. Suffice to say no such contention is raised before the trial court at the appropriate stage and time and the same was also not challenged in any superior forum at that time. The trial court proceedings shows that the above documents were marked on 23/5/2007 in the presence of the complainant, on which date the documents were already produced in terms of the petition filed by the defence. According to me, even if there is some defect in the marking of the above documents, the same are not sufficient to disturb the finding arrived on by the court below, particularly with respect to the alleged execution of cheque in question in view of the forgone discussion. Thus, on a consideration of the entire facts and evidence on record, I find no reason to interfere with the order of acquittal recorded by the trial court, especially when the complainant has miserably failed to prove Crl.A.No.570 of 2008 :-9-: the transaction as well as the execution and issuance of the cheque since the proof of the same are the un-shifted burden of the complainant in a prosecution for the offence punishable under Section 138 of the N.I. Act. 10. The Hon'ble Apex Court in a recent decision reported in **Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu** [2013 (1) Supreme 88] **,** has held 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: ............ “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while Crl.A.No.570 of 2008 :-10-: 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', '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 Crl.A.No.570 of 2008 :-11-: 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.” (emphasis supplied). On examination of the facts and circumstances involved in the case and in the light of the forgone discussion, particularly in view of the decision cited supra, according to me, the available evidence and materials, justified the decision of the learned Magistrate and acquitting the accused and the appellant has miserably failed in making out any compelling circumstances or substantial reason to disturb the double presumption of innocence secured by the accused in the light of the impugned judgment. In the result, I find no merit in this appeal and accordingly the same is dismissed. skj **V.K.MOHANAN, JUDGE** True copy P.A. to Judge