M/S. SHRIRAM INVESTMENT LTD. v. MRS. BALAMANI

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH DAY OF OCTOBER 2013/17TH ASWINA, 1935 CRL.A.No. 1113 of 2007 (D) --------------------------- Crl.L.P. 559/2006 of HIGH COURT OF KERALA DATED 09-11-2006 AGAINST THE ORDER/JUDGMENT IN CC 294/2003 of J.M.F.C.-IV,KOZHIKODE DATED 19-06-2006 APPELLANT/COMPLAINANT: -------------------------- M/S. SHRIRAM INVESTMENT LTD., 5/1806, SREEPARDAM BUILDING, CHEROOTTY ROAD, CALICUT, REP. BY POWER OF ATTORNEY HOLDER, P.PRAKASH, SENIOR EXECUTIVE, S/O. K.MADHAVAN, AGED 30 YEARS. BY ADVS.SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS/ACCUSED AND STATE: --------------------------------- 1. MRS. BALAMANI, W/O. RAMACHANDRAN, 682, MADATHIL, THAZHEKUNNIYIL, KADAVATHOOR P.O., THRIPPANGOTTUR, KANNUR. ## 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------Crl.A.No.1113 of 2007** ## **---------------------------------Dated this the 09[th] day of October, 2013** ## **JUDGMENT** Challenging the judgment dated 19/6/2006 in C.C.No.294 of 2003 of the court of Judicial First Class Magistrate Court-IV, Kozhikode, the complainant therein preferred this appeal, as they are aggrieved by the above judgment by which the learned Magistrate acquitted the accused, who faced the prosecution for the offence punishable under Section 138 of the N.I. Act. 2. The case of the complainant is that, the complainant/company engaged in hire purchase business and extending such facility to one P.Saithalavi and connected thereto, he was entrusted with vehicle bearing registration No.KL-3E/4955 in pursuance to an agreement executed by the said P.Saithalavi, for which the accused was a guarantor. Thus, according to the complainant, the liability of said P.Saithalavi is joint and several. According to the complainant, when the principle debtor committed default in the payment of installments and when a huge amount became Crl.A.No.1113 of 2007 :-2-: due, formerly informed the accused being the guarantor about the non-payment of installment and requested her to pay the amount and clear the arrears. Thus the accused undertook the liability and issued Ext.P2 cheque dated 24/3/2003 for an amount of `1,10,000/- towards the final settlement of the account. According to the complainant, when the said cheque was presented for encashment, the same was returned dishonoured for the reason “funds insufficient”. Consequently, the complainant caused to issue registered lawyer notice to the accused. But the same was returned unserved for the reason that 'door closed' and thereafter the accused has not paid the amount and thus according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PW.1 was examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, though no witness was examined, Exts.D1 and D2 documents were got marked through PW.1. The trial court finally found after considering the entire evidence and materials on record that the Crl.A.No.1113 of 2007 :-3-: prosecution has failed to prove that the accused has issued the cheque to discharge any legally enforceable debt and accordingly found the accused not guilty of the offence under Section 138 of the N.I. Act and consequently she 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 therein. 3. Heard Sri.P.Sanjay, the learned counsel appearing for the appellant. Though notice is served on the respondent/ accused, nobody has turned up and no argument is advanced against the above appeal. 4. The learned counsel for the appellant vehemently submitted that the trial court is wrong in acquitting the accused for the sole ground, i.e., failure on the part of the complainant in producing the hire purchase agreement and simply acting upon Exts.D1 and D2 produced on behalf of the defence. According to the learned counsel, the evidences adduced by the defence are not strong enough to acquit the accused. It is also the submission of the learned counsel for Crl.A.No.1113 of 2007 :-4-: the appellant by remanding the matter to the trial court one more opportunity may be given to the complainant and produce the necessary evidence to substantiate the case of the complainant. 5. I have carefully considered the arguments advanced by the learned counsel for the appellant and I have perused the impugned judgment and the evidence and materials on record. 6. The specific case of the complainant is that the accused issued Ext.P2 cheque towards discharge of her liability being the guarantor for the loan availed by one P.Saithalavi connected with the purchase of the vehicle bearing registration No.KL-3E/4955. But the case of the accused is that she is not the guarantor of the loan availed by P.Saithalavi and she has not executed and issued Ext.P2 cheque as claimed by the complainant and according to her she was a hirer in respect of the vehicle bearing registration No.KL-3E/4955 and that vehicle was seized by the complainant and subsequently the vehicle was handed over to Crl.A.No.1113 of 2007 :-5-: Mr.P.Saithalavi and according to her the cheque produced by the complainant is actually issued by the accused to the complainant in respect of an earlier transaction and the same is mis-utilized by the complainant in the present case. 7. In the light of the argument advanced by the learned counsel for the appellant and in view of the rival claim of the accused and particularly in the light of the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and acquitting the accused and further question to be considered is whether the appellant has succeeded in making out a case so as to interfere with the order of acquittal recorded by the trial court. As I mentioned earlier, the entire case of the prosecution is that there was a loan transaction based upon a hire purchase agreement, connected with the purchase of the vehicle bearing registration No.KL-3E/4955 and one P.Saithalavi was the purchaser of the vehicle for which the accused was one of the guarantor and when principle debtor defaulted in paying the installment, informing the said fact and on asking her to clear Crl.A.No.1113 of 2007 :-6-: the arrears, the accused in turn issued Ext.P2 cheque. As rightly found by the court below, essentially the liability upon the accused is based upon the hire purchase agreement to which the accused is a guarantor. But no such agreement is produced before the court which according to me, is fatal to the complainant. The complainant has miserably failed to produce the basic document, which casts liability upon the parties to such contract. Thus, except the interested version of PW.1, no documentary evidence is produced by the complainant to prove the liability of the accused. So, according to me, the trial court is fully justified in its finding that the presumption under Section 139 of the N.I. Act is not available to the complainant. Suffice to say, as rightly observed by the learned Magistrate, no documents connected with the account showing the liability of the accused are also produced. 8. That being the position about the evidence from the part of the complainant and the defect in the prosecution, the accused, to substantiate her defence produced Exts.D1 and Crl.A.No.1113 of 2007 :-7-: D2. Ext.D1 is a document proved through PW.1, which is a notice for termination of lease agreement No.SIL/CLT/L/5333 in respect of the vehicle number mentioned therein KL3E/4955 which is the very same vehicle. In the said letter it is shown that the accused is the registered owner with respect to the vehicle KL-3E/4955. The above document cut the very route of the case of the complainant that the accused is the guarantor of the loan transaction connected with the purchase of the vehicle No.KL-3E/4955. Similarly, Ext.D2 is another notice addressed to one Sajith Kumar, wherein also, in the reference, item Nos.2 and 3 respectively show as vehicle No.KL-3E/4955 and registered owner as Mrs.Balamani. As held by Supreme Court in the decision reported in **Krishna Janardhan Bhat v. Dattatraya Hegde** [2008(1)KLT 425 (SC)] **,** an accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. In the said decision it is further held that standard of proof on the part of an accused and that of the Crl.A.No.1113 of 2007 :-8-: prosecution in a criminal case are different. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. 9. In the present case it can be seen that the very basis, upon which the complainant claimed liability on the accused being a guarantor, is the hire purchase agreement, which is not produced. No explanation is given by PW.1 at the time of trial for not producing such a crucial document, which is in favour of the prosecution and which is within their possession. In the present case, by producing Exts.D1 and D2 documents through PW.1, the documents of the complainant/company, the defence has succeeded in proving that connected with the purchase of vehicle bearing registration No.KL-3E/4955, for which it is allegedly the accused is the guarantor, that she is Crl.A.No.1113 of 2007 :-9-: the registered owner of that vehicle and she is not a guarantor for the financial facility extended with respect to the said vehicle. So, in the present case rather establishing a probable case, the accused has succeeded in proving positively her case that she is the registered owner of the vehicle in question. Thus on the beginning, though the claim and case of the complainant is that the accused is the guarantor for hire purchase loan transaction connected with vehicle bearing registration No.KL-3E/4955, after the trial it is proved that the accused is the registered owner of the vehicle and thus the legal debt and liability alleged against the accused has gone and thus Section 138 of the N.I. Act is not attracted. That being the position, I find no perversity or illegality in the judgment of the trial court and the finding of the learned Magistrate so as to interfere with the order of acquittal while exercising the appellate jurisdiction of this Court. 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 Crl.A.No.1113 of 2007 :-10-: ## 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. (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, ## Crl.A.No.1113 of 2007 ## :-11-: '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 finding of acquittal recorded by the trial court.” (emphasis supplied). So, on a scrutiny of the impugned judgment in the light of the above decision of the Supreme Court, particularly in view of the evidence and materials on record, I find no reason to Crl.A.No.1113 of 2007 :-12-: disturb the double presumption of innocence available in favour of the accused. Though the learned counsel for the appellant sought for a remand of the case to the trial court, I find no reason to allow such request especially when the complainant has failed to show any convincing reason for not producing the essential documents, including the hire purchase agreement, which was in their possession, at the time of trial. In the result, there is no merit in this appeal and accordingly the same is dismissed. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge