M/S Zodiac Auto Finance Rep. by its Managing Partner K.M. Geevarghese v. State of Kerala and O.J. Mathew

CRL.A NO. 1284 OF 2007 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 27[TH] DAY OF AUGUST 2021 / 5TH BHADRA, 1943** **CRL.A NO. 1284 OF 2007** **AGAINST THE JUDGMENT IN Crl.A NO. 160/2006 OF ADDITIONAL** **SESSIONS COURT (ADHOC)-II, ERNAKULAM,** ## **APPELLANT/PETITIONER:** **M/S.ZODIAC AUTO FINANCE REP. BY ITS MANAGING PARTNER K.M. GEEVARGHESE, LISIE JUNCTION, KOCHI-18.** BY ADV SRI.PEEYUS A.KOTTAM ## **RESPONDENTS/RESPONDENTS:** - 1 **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - 2 **O.J. MATHEW, S/O. JOSEPH, OORUMBIL HOUSE, MANIYARAMKUDY P.O., VAZHATHOPPU, IDUKKI.** **BY SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWICK** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 1284 OF 2007 2 ## **JUDGMENT** This appeal has been filed challenging the judgment dated 16.12.2006 in Crl.A No.160/2006 on the file of the Additional Sessions Judge (Adhoc II), Ernakulam, through which the conviction and sentence imposed on the 2[nd] respondent/accused in a prosecution under Section 138 of the Negotiable Instruments Act by the Judicial First Class Magistrate Court II, Ernakulam was reversed. 2. The appellant herein was the complainant in C.C.No.1107/1999. According to the appellant/complainant, the 2[nd] respondent/accused herein had availed a hire purchase loan from the appellant/complainant and that he had committed default in repayment of instalments due under the hire purchase agreement. According to the appellant/complainant, the 2[nd] respondent/accused had repaid only one instalment of the loan and on 20.11.1998 he had issued Ext.P2 cheque for a sum of Rs.1,21,000/- which was the total amount to be repaid under the hire purchase agreement. The trial court after considering the evidence let in come to the conclusion that the 2[nd] respondent/accused herein had committed the offence punishable under Section 138 of the Negotiable Instruments Act and CRL.A NO. 1284 OF 2007 3 had accordingly convicted and sentenced the accused. 3. Inter alia, the circumstances which weighed with the trial court to reach its conclusion were the following: i) The execution of the hire purchase agreement (Ext.P8) has not been denied by the 2[nd] respondent/accused. ii) The fact that only one instalment had been repaid by the 2[nd] respondent/accused, is also not denied. 4. Though the accused had filed an application for sending Ext.P2 cheque to the forensic expert for verifying the signature and handwriting and though that application was allowed by the court, the forensic laboratory had returned the same without comparison and demanding more documents written by the 2[nd] respondent/ accused during the same period in order to complete the investigation. However, the 2[nd] respondent/accused did not produce any further document, as a result of which Ext.P2 cheque was not subjected to any forensic examination. Though there was some difference in the signature shown in Ext.D1 (account opening form) and the signature of the 2[nd] respondent/accused in Ext.P2 cheque and though the signature in documents relating to the registration CRL.A NO. 1284 OF 2007 4 particulars of the vehicle (marked as Ext.X1), is not identical to the one contained in Ext.P2 cheque, the trial court found similarity in the signatures contained in the said public documents, in Ext.P8 hire purchase agreement and in Ext.P2 cheque. The trial court found that there is patent difference in the signatures contained in Ext.P2, Ext.D1 account opening form and Ext.P6 acknowledgment card relating to the statutory notice issued by the appellant/complainant. The trial court also found that the 2[nd] respondent/ accused had no case that the appellant/complainant had obtained the cheque from him by unlawful means and had fabricated his signature and handwritting and that no reply was sent by the 2[nd] respondent/accused to the statutory notice issued by the appellant/complainant. 5. The trial court, therefore, was of the view that the appellant/complainant was entitled to the benefit of the statutory presumption under Section 139 of the Negotiable Instruments Act and therefore found that Ext.P2 cheque had been issued for discharge of a legally enforceable debt and answered that issue in favour of the appellant/complainant. 6. The trial court thereafter, considering the fact that the cheque in question had been returned unpaid for the reason of CRL.A NO. 1284 OF 2007 5 insufficiency of funds and also that a statutory notice as contemplated by the provisions of the Negotiable Instruments Act had also been issued in the matter held that the accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced the 2[nd] respondent/accused to undergo simple imprisonment for a period of six months for the offence punishable under Section 138 of the Negotiable Instruments Act and also directed payment of compensation of Rs.2,00,000/stated to be the principle amount together with 6% interest per annum to the complainant under Section 357(3) of the Code of Criminal Procedure and in default to undergo simple imprisonment for a further period of six months. 7. The 2[nd] respondent/accused filed Crl.A No.160/2006, challenging the conviction and sentence imposed in C.C.No.1107/1999. That appeal was allowed by judgment dated 16.12.2006. A reading of the appellate court judgment shows that the appellate court was of the opinion that the signature on the cheque had not been proved to be that of the 2[nd] respondent/accused herein. In particular, the appellate court noticed that the signatures on Ext.D1, the account opening form and Ext.X1 containing the registration particulars of the vehicle were different from the CRL.A NO. 1284 OF 2007 6 signature contained in Ext.P2 cheque. By invoking the power under Section 73 of the Evidence Act, the court reached the conclusion that on a comparison of the signatures in Ext.P2 cheque, Ext.P8 hire purchase agreement, Ext.X1(a) extract of the registration particulars of the vehicle purchased with the hire purchase loan, the signatures on the postal acknowledgment card (Ext.P6), Ext.D1 account opening form, vakalath of the 2[nd] respondent/accused and in the statement recorded by the trial court under Section 313 Cr.P.C, the name of the 2[nd] respondent/accused is decipherable from the signatures in Exts.P2, P8 and X1(a), whereas in other documents, the signature is only a cluster of bent lines scribbled with English alphabets 'O.J' beneath it. On that assumption, the appellate court proceeded to find that the signature on Ext.P2 cheque has not been established by the appellant/complainant. 8. This is a case where the 2[nd] respondent/accused has not denied the fact that he had entered into a hire purchase agreement with the appellant/complainant. He had also not denied the fact that he had failed to repay the instalments of the loan in time. I must also take note of the fact that though the 2[nd] respondent/accused had initially filed an application for sending the cheque in question for forensic examination, for the reasons already indicated, such CRL.A NO. 1284 OF 2007 7 forensic examination was not completed solely on account of the default on the part of the 2[nd] respondent/accused. The trial court on an examination of the signatures on various documents concluded that there was a similarity in the admitted signature and the signature contained in the cheque. Of course, the appellate court has by invoking Section 73 of the Evidence Act come to a different conclusion regarding the similarity in the signatures. But pertinently even in the judgment of the appellate court, it has been clearly found that the signatures on Ext.P2 cheque is similar to the signatures contained in Ext.P8 hire purchase agreement and in Ext.X1(a), extract of the 'B' register maintained by the Regional Transport Officer, containing the registration particulars of the vehicle purchased, using the hire purchase loan. When the appellate court had found that the signature in the cheque is similar to the one in Ext.X1(a), there was no reason to disbelieve the version of the appellant/complainant that the cheque had been issued in discharge of a legally enforceable debt especially when taking of the loan and the failure to repay had not been disputed. In **Abbas Haji M. v. T.N.Channakeshava (2019(5) KHC 20)** , it was held:- “4. The case set up by the complainant was that the original appellant had borrowed a sum of Rs.5 lakhs CRL.A NO. 1284 OF 2007 8 from him and for repayment of that sum had issued a cheque on 18/11/2000 drawn on State Bank of Mysore. On presentation, the cheque was dishonoured for want of sufficient funds. Thereafter, legal notice (Ext.P4) was issued, which has been duly served upon the original appellant. According to the complainant, no reply to the said notice was received and therefore a private complaint was filed. A defence was raised by the accused that he had not signed the cheque. During the course of the trial, the original appellant got the cheque sent to the handwriting expert for comparison with the admitted signatures. It is not clear as to what were the admitted signatures which were sent to the handwriting expert but the handwriting expert opined that the signatures on the cheque were not those of the person who had written the admitted signatures. The Trial Court dismissed the complaint mainly on the ground that the handwriting expert had opined that the signatures on the cheque were not those of the original appellant. 5. The complainant filed an appeal to the High Court, which after considering the entire evidence, has delivered a well reasoned judgment upsetting the judgment of the Trial Court. The reasons which weighed with the High Court were that; (1) the original appellant did not step into the witness box to state that he had not signed the cheque; (2) that the opinion of the handwriting expert was only an opinion and not conclusive; (3) that the original appellant had failed to prove that he had sent a reply to the notice sent to him by the complainant because so - called reply was not marked in evidence and no postal receipt of the same was placed on record. 6. It is urged before us that the High Court over - stepped the limits which Appellate Court is bound by criminal cases setting aside an order of acquittal. Proceedings under S.138 of the Act are quasi - criminal proceedings. The principles, which apply to acquittal in other criminal cases, cannot apply to these cases. As far as the present case is concerned, in addition to three reasons, given by the High Court, we are of the view that the original appellant has not even explained how the leaves of the cheque entered into the hands of the complainant. It is urged that in cross -examination of the complainant some suggestions were made that since CRL.A NO. 1284 OF 2007 9 the complainant was visiting the office of the original appellant, he had access to the same. The complainant had only admitted that he visited the office of the original appellant but he denied all the other suggestions. Thereafter, it was for the original appellant to prove his part of the case. The High Court, in our opinion, was right in holding the original appellant guilty under S.138 of the Act.” 9. In the facts of the present case as already noticed, the transaction between the appellant/complainant and the 2[nd] respondent/accused has not been disputed. The appellate court also found that there was similarity in the signature on the cheque, the hire purchase agreement and in the registration details maintained with the Motor Vehicles Department. That finding by itself, is in my opinion sufficient to establish that the statutory presumption under the Negotiable Instruments Act was available to the appellant/complainant. Therefore, the appellate court went wrong in reversing the conviction and sentence imposed on the 2[nd] respondent/accused. In that view of the matter, this appeal is allowed. The 2[nd] respondent/accused is found guilty of having committed the offence under Section 138 of the Negotiable Instruments Act. Therefore, the conviction of the 2[nd] respondent/ accused by the Judicial First Class Magistrate Court II, Ernakulam in C.C.No.1107/1999 is restored. In so far as the sentence is CRL.A NO. 1284 OF 2007 10 concerned, in modification of the sentence imposed and taking into account the totality of the facts and circumstances of the case including the case of the 2[nd] respondent/accused that he is a toddy tapper, the sentence of imprisonment is reduced to one month simple imprisonment for having committed the offence under Section 138 of the Negotiable Instruments Act. The accused is also ordered to pay compensation equivalent to the amount of cheque (Rs.1,21,000/-), failing which the 2[nd] respondent/accused shall undergo a further period of simple imprisonment for one month. The Crl.Appeal is allowed in the manner indicated above. Sd/- **GOPINATH P.** **JUDGE** ab