M/S Benz Automobiles Pvt. Ltd. vs Vijayan / State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 5TH DAY OF DECEMBER 2013/14TH AGRAHAYANA, 1935 CRL.A.No. 1146 of 2002 (E) --------------------------- AGAINST THE ORDER/JUDGMENT IN ST 750/1998 of C.J.M., PALAKKAD DATED 28-09-2001 APPELLANT/COMPLAINAT IN ST.CASE No.750/1998:: --------------------------------------------- M/S.BENZ AUTOMOBILES PVT.LTD., CHANDRA NAGAR, PALAKKAD TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, C.V.JOHNY, AGED 43 YEARS, S/O. C.P.VARGHESE, SENIOR OFFICER, M/S. BENZ AUTOMOBILES PVT. LTD., BENZ TOWERS, EDAPPALLY, COCHIN - 682 024. BY ADV. SRI.P.GOPAKUMARAN NAIR RESPONDENT No.1/ACCUSED IN ST.CASE No.750/1998 & STATE : ------------------------------------------------------- 1. SRI.VIJAYAN, AGED ABOUT 41 YEARS, S/O. SASIDHARAN, 17/624, BEHIND CIVIL STATION, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. -------------------------------------Crl.A.No.1146 of 2002** **--------------------------------------Dated this the 05[th] day of December, 2013** ## **JUDGMENT** This appeal is directed against the judgment dated 28/9/2001 in S.T.Case No.750 of 1998 of the court of the Chief Judicial Magistrate, Palakkad, at the instance of the complainant therein since the accused therein who faced prosecution for the offence under Section 138 of the N.I. Act is acquitted under Section 255(1) of Cr.P.C. 2. The case of the complainant is that the accused purchased spare parts from the complainant for a total sum of `26,631.42 and towards the part discharge of the above liability, the accused had signed and delivered a cheque dated 31/3/1998 for an amount of `25,000/- which when presented for encashment dishonoured for the reason “insufficient fund” and it is the further case of the complainant that on receiving such dishonoured memo the complainant caused to send a registered notice to the accused informing him about the Crl.A.No.1146 of 2002 :-2-: dishonour of the cheque and also demanding him to pay an amount covered by the dishonoured cheque, but no payment was paid and therefore, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. 3. With the above allegation the complainant approached the court below by filing a complaint upon which cognizance was taken and thus instituted S.T.Case No.750 of 1998 in the court below, in due compliance of the procedural formalities. When the accused appeared, after furnishing the copies of the prosecution records, the particulars of offences were read over and explained to him and he pleaded not guilty. According to the accused, he had not purchased goods from the complainant and he had not issued cheque in favour of the complainant. It is the specific case of the accused that he had purchased the goods for P.J.R & Company and thus the bills are issued by the complainant in the name of the said company. During the trial of the case one Shabu was examined as PW.1 for and on behalf of the complainant and Crl.A.No.1146 of 2002 :-3-: Exts.P1 to P8 were marked. No evidence whatsoever adduced from the side of the defence. After considering the entire evidence and materials on record the trial court found that the complainant has miserably failed to establish that Ext.P4 cheque was issued by the accused and the complainant has also failed to prove that Ext.P4 was issued in discharge of a legally recoverable debt. Consequently the accused is found not guilty for the offence punishable under Section 138 of the N.I. Act and accordingly he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal at the instance of the complainant in the above case. 4. Heard Sri.P.Gopakumaran Nair, the learned counsel for the appellant. Though notice is served on the respondent/ accused by paper publication, he has not chosen to defend the appeal either by himself in person or by engaging a counsel. 5. The learned counsel for the appellant vehemently submitted that the purchase was effected physically by the accused and he put his signature in Ext.P2 series of invoices Crl.A.No.1146 of 2002 :-4-: though the same are in the name of P.J.R & Company. It is also the contention of the learned counsel that Ext.P4 cheque bear the signature of the accused and he had put his signature as the proprietor of Devi Engineering Works. On the basis of the above factual input the learned counsel strenuously submitted that the trial court is wrong in its finding and the order of acquittal recorded by it. 6. I have carefully considered the submissions made by the learned counsel for the appellant and I have gone through the evidence and materials on record. 7. In the light of the arguments advanced by the learned counsel for the appellant and in view of the defence taken by the accused during the trial of the case, the question to be considered is whether the trial court is justified in its finding and acquitting the accused and the further question to be considered is whether the appellant has succeeded in making out any ground to interfere with the order of acquittal recorded by the trial court. Crl.A.No.1146 of 2002 :-5-: ## 8. A Division Bench of this Court in the decision in **Devan Vs. Krishna Menon** [2010 (2) KLT 397] has held that:- “Once the signature, execution and handing over of the cheque is satisfactorily proved, presumption under Section 139 would come into play and remain there until the accused discharge the burden by inferior standard of preponderance of possibilities and probabilities as applicable in civil law.” In the light of above decision, the first question is whether the complainant has succeeded in establishing the transaction, execution and the issuance of the cheque. The averment in the complaint in paragraph '1' reads as:- “1. The accused had purchased spare parts from the complainant for `26,631.42P. Towards the amounts payable the accused had signed and delivered a cheque for `25,000/- in part satisfaction of the amounts due.” ## The averment continues in paragraph '2' as:- “2. Towards the amounts thus payable in part satisfaction for the goods thus purchased from the complainant, the accused had issued a cheque bearing No.962357 dated 31.3.1998 in the name of the complainant for Crl.A.No.1146 of 2002 :-6-: `25,000/- drawn on The Vysya Bank Ltd., Palakkad Branch, Palakkad District.” In order to substantiate the above averments the power of attorney holder of the complainant got examined as PW.1 and produced Ext.P2 series of invoices 19 in numbers, Ext.P3 delivery order and Ext.P4 cheque. Suffice to say, Ext.P2 series of invoices produced by the complainant itself shows that the spare parts mentioned therein were sold to P.J.R. & Company, P.J.R. & Sons and P.J.Radhakrishnan and Company. PW.1 has also admitted that the credit bills are issued in the name of P.J.R. & Company. The trial court has found that one Sukumaran had also signed in one of the credit bills who according to PW.1 is a person working along with the accused. From the above document relied on by the complainant and produced by it shows that the transaction is between the complainant firm and the firm namely P.J.R. & Company. So, it is for the complainant to establish that the accused is some way connected with the said P.J.R. & Company to fall the liability connected therewith upon the shoulder of the accused. Crl.A.No.1146 of 2002 :-7-: But no evidence either oral or documentary produced to discharge such burden of the complainant in the present case. It is true when PW.1 was examined he had deposed before the court that the invoices and credit bills are being issued in the name of persons or establishments as requested by the person who being purchased the spare parts. According to me, the said version is only an evasive attempt to fix liability upon the accused, due to the failure of the complainant in establishing its allegation against the accused. So, to prove the transaction, on the basis of which the liability is created and to connect the accused with transaction and such liability, absolutely there is no evidence. 9. The learned counsel after inviting my attention to the signature seen on Ext.P4 cheque and on Ext.P2 invoices submitted that the cheque is issued by the same person who purchased spare parts and therefore, the accused is liable to be punished under Section 138 of the N.I. Act. I am unable to sustain the above contention. First of all it is relevant to note that there is no specific averment in the complaint as to when Crl.A.No.1146 of 2002 :-8-: and where Ext.P4 cheque was executed and issued by the accused in favour of the complainant. So, the complainant has miserably failed to bring its case within the dictum laid down by the Division Bench of this Court cited supra. 10. In this juncture it is relevant to note that even though Ext.P2 series of invoices are in the name of P.J.R. & Company or P.J.R. & Sons and P.J.Radhakrishnan & Company, Ext.P4 cheque issued from an account maintained by Devi Engineering Works which is totally a strange establishment connected with the transaction put forwarded by the complainant. Therefore, even if it shown that the signature contained therein that of the accused, no liability can be fixed upon the accused, particularly when there is no evidence about the execution and issuance of the cheque by the accused. 11. In this juncture it is also relevant to note that, the cheque in question issued from an account maintained by a proprietory concern and not from an account personally maintained by the accused. If that be so, according to me, particularly in the light of the decision in Crl.A.No.1146 of 2002 :-9-: **S.M.S.Pharmaceuticals Ltd. Vs. Neeta Bhalla** [2005(4) KLT 209(SC)] **,** the complainant ought to have impleaded the proprietory concern which maintained the account as an accused more particularly in view of Section 141 of the N.I. Act. In this particular case it is relevant to note that the complainant has miserably failed to prove positively that the accused is the proprietor of the Devi Engineering Works, which firm maintained the account to which Ext.P4 cheque is pertained. 12. The above discussion and the evidence and materials referred to above, points towards the correctness of the finding arrived on by the court below to the effect that the complainant has failed to prove that Ext.P4 was issued in discharge of a legally recoverable debt. Having regard to the facts and circumstances involved in the case particularly in the light of the evidence and materials on record, according to me, the trial court is fully justified in its finding and the same cannot be held as perverse or illegal. Crl.A.No.1146 of 2002 :-10-: 13. 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 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. Crl.A.No.1146 of 2002 :-11-: (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 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 Crl.A.No.1146 of 2002 :-12-: finding of acquittal recorded by the trial court.” (emphasis supplied). On examination of the facts and circumstances involved in the case and the evidence on record in the light of the above decision of the Hon'ble Apex Court it can be seen that the appellant has miserably failed to make out any compelling circumstances or substantial reason to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence of the accused. In the result, I find no merit in this appeal and accordingly the same is dismissed. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge