Muhammed Ali S/o Abdulla v. Top Gear Car Accessory Shop & Ragith Madhukar & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942** ## **CRL.A.No.413 OF 2005** **[AGAINST THE JUDGMENT DATED 28.2.2004 IN C.C.NO.197/2000 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMANGALAM]** ## **APPELLANT/COMPLAINANT:** **MUHAMMED ALI S/O ABDULLA,VAISAKH, NEAR I.M.G., MEDICAL COLLEGE P.O., KOZHIKODE. BY ADVS. SRI.K.B.SAJEESH SRI.C.S.SUNIL SRI.P.R.SREEJITH** ## **RESPONDENTS/ACCUSED NOS.1 & 2, STATE:** **1 TOP GEAR CAR ACESSORY SHOP, KANNUR ROAD, KOZHIKODE, REPRESENTED BY THE MANAGING PARTNER, RAGITH MADUKUMAR. 2 RAGITH MADHUKAR MANAGING PARTNER, TOP GEAR, CAR ACESSORY SHOP, KANNUR ROAD, KOZHIKODE. 3 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.T.G.RAJENDRAN R3 BY SRI.K.B.UDAYAKUMAR, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-10-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.413 OF 2005 2** ## **JUDGMENT** **Dated this the 16th day of October 2020** ... **The appellant is the complainant in C.C.No.197 of 2000 on the file of the Judicial First Class Magistrate Court, Kunnamangalam which was filed against the 1[st] respondent under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code.** **2. The prosecution case in brief is like this:- The first accused is a firm and second accused is its Managing Partner. The first accused is represented by the second accused and he is dealing with all the day-today business of A1. The complainant is a firm and wholesale distributor of seat covers and the accused are the retail dealers of the same. The second accused approached the complainant and purchased seat covers on behalf of the first accused and towards the payment of the value of the goods purchased, the 2[nd] accused had issued a cheque bearing No.343587 drawn on** **CRL.APPEAL NO.413 OF 2005 3** **Syndicate Bank, Mavoor road branch Calicut dated 21.2.2000 for an amount of Rs.1,00,000/-. The first accused issued the above cheque for discharging his legal debt. When the complainant presented the cheque for encashment through Union Bank of India, Calicut branch, it was returned dishonoured on 29.2.2000 with memo that ‘payment stopped by the drawer'. When the cheque was issued, the complainant was assured by second accused that, the cheque would be honoured on presentation for collection. According to the complainant, the accused had deceived the complainant with malicious intention of causing wrongful loss to the complainant. It is the further case of the complainant that, the accused had induced the complainant to deliver the said goods with fraudulent intention and had issued a cheque without arranging sufficient amount to make unlawful gain. On 14.3.2000, the complainant had issued a registered notice to the accused informing the dishonour of the said cheque and demanding the** **CRL.APPEAL NO.413 OF 2005 4** **payment within 15 days of receipt thereof. It is alleged that, the notice issued to the first accused was not accepted though it was sent in the correct address. The second accused accepted the notice on 20.3.2000 and had sent a reply with untenable contention and the accused did not pay the amount so far. Hence, it is alleged that, the accused committed the offence punishable under section 138 of the Negotiable Instruments Act (N.I.Act) and section 420 of the Indian Penal Code (IPC).** **3. After the sworn statement was recorded and perusing the records, the trial court took cognizance of the offences under section 138 of the N.I.Act and Section 420 of the IPC. Thereafter, the accused appeared. Section 244 Cr.P.C enquiry was started. PW1 and PW2 were examined on the side of the complainant. Exhibits P1 to P8 were marked on the side of the complainant.** **4. After hearing both sides, charge under Section 138 of the N.I.Act and Section 420 of the** **CRL.APPEAL NO.413 OF 2005 5** **IPC was framed. The accused pleaded not guilty. Thereafter PW2 was recalled and cross-examined by the accused under Section 246 Cr.P.C. The case was posted for the cross-examination of PW1. But he did not appear before the court for further cross examination. Subsequently, he had executed a power of attorney to one Jasseel P.P. and he was permitted to proceed with the case. He was examined as PW3 and the power of attorney was marked as Ext.P9.** **5. After hearing both sides, the trial court found that, the accused is not guilty under Section 138 of the N.I.Act and Section 420 of the IPC. Hence, the accused was acquitted. Aggrieved by the above, this criminal appeal is filed.** **6. Heard the learned counsel for the appellant and the learned counsel for the contesting respondents.** **7. The learned counsel for the appellant submitted that, the complainant was able to prove the offence under Section 138 of the N.I.Act and** **CRL.APPEAL NO.413 OF 2005 6** **Section 420 of the IPC. The counsel submitted that, the trial court erred in neglecting the evidence of PW1 simply because he was not available for further cross-examination. The counsel also submitted that, there is a presumption in favour of the complainant under Section 139 of the N.I.Act. The counsel submitted that PW3, the power of attorney holder was a witness to the execution of the cheque. He gave clear and cogent evidence to substantiate the case. The trial court erred in rejecting the evidence of PW3 without considering the entire evidence adduced by the complainant. The counsel submitted that, it is a clear case in which the trial court committed grave irregularity in acquitting the accused. To substantiate his case, the counsel relied the judgment of this Court in Anirudhan v. Philip Jacob and others [2006 KHC 865] and Shree Daneshwari Traders (M/s.) v.Sanjay Jain and Another [2019(4) KHC 495].** **8. The learned counsel for the 1[st] respondent supported the judgment of the trial court. The** **CRL.APPEAL NO.413 OF 2005 7** **counsel submitted that, when the trial court disbelieved the evidence of PW3 who is the power of** **attorney holder of the complainant, there is nothing remains in the case. The trial court rejected the evidence of PW3 on appreciation of evidence. To substantiate his case, the counsel for the 1[st] respondent relied the judgment of the Apex Court in Narayanan A.C. and Another v. State of Maharashtra & Others [2013(3) KHC 885 (SC)].** **9. The point for consideration in this case is whether the judgment of the trial court is vitiated by any illegality or irregularity to interfere in an appeal against acquittal ?** **10. The admitted fact is that, at the time of** **section 244 Cr.P.C. enquiry, the complainant adduced evidence as PW1. He was cross-examined. Thereafter, the charge was framed. Subsequently, the accused wanted to cross PW1 once again. The case was posted on several occasions. The complainant was not able to appear before the court because he was not in India. Therefore, the accused** **CRL.APPEAL NO.413 OF 2005 8** **was not able to cross examine PW1. In such circumstances, the trial court rejected the evidence of PW1 because he was not available for cross examination under section 246 Cr.P.C. I see no reason to interfere with such a finding. It is the right of the accused to cross-examine the witnesses who were already examined in the preliminary enquiry under section 244 Cr.P.C., if the accused wants to further cross examine the same witness under section 246 Cr.P.C also. Suppose if the accused was not able to cross examine that witness because of the non availability of that witness, the accused will be prejudiced. In such circumstances, the trial court is perfectly justified in rejecting the evidence of PW1.** **11. Then the question is whether the evidence of PW3, the power of attorney holder can be accepted or not. It is true that, the power of attorney holder deposed before the court that he was a witness to the execution of the cheque. But the trial court on appreciation of the evidence of** **CRL.APPEAL NO.413 OF 2005 9** **PW3 in detail concluded that his evidence is not believable. The trial court found that, the complainant has no case in his complaint or in his version before the court that, PW3 is a witness to the execution of the cheque. The trial court also considered several other factors also for rejecting the evidence of PW3. The trial court considered this point in paragraph 11 of the impugned judgment, which is extracted hereunder:** _**“11. Next question for consideration is whether the accused committed the offence punishable under sec.138 of N.I.Act. Ext.P8 disclosed that right from the beginning, the accused had case that the complaint had offered to sell seat covers to the accused and a blank signed cheque leaf was given to the complainant as security and there was an oral agreement that after the supply of seat covers, the complainant was allowed to present the cheque and accused will make the money available in the account. But, the seat cover was not supplied by the complainant to the accused. Of course the Power of Attorney can prosecute a complaint u/s 138 and 142 of N.I.Act. Even in subsequent stage, there is no illegality in permitting the Power of**_ **CRL.APPEAL NO.413 OF 2005 10** _**Attorney holder of the complainant to proceed the case and it will be opened for the prosecution to examine the Power of Attorney as a witness, but that does not mean that he is competent to speak all the facts relating to the case. When the Power of Attorney given evidence, the court can scrutinize whether he is competent to give evidence on the points and the evidence is acceptable. In this case at the fag end of the trial, the Power of Attorney Holder of the complainant was examined as PW3. PW3 would speak that he is a cousin of PW1 and working in his institution and has acquaintance with the accused and transaction. But in cross-examination, he admitted that there is no documents to disclose that he is working in the institution of PW1 and further admitted that, that fact is not even mentioned in Ext.P9. Further, he does not know the quantity of the seat cover purchased by the accused from the complainant, bills and its delivery notes etc. Further PW3 does not know the relationship of the 2[nd] accused with the Ist accused firm. He further admitted that the bills of the goods purchased are not produced. Since the accused disputing the claim of the complainant from Ext.P8 onwards the complainant ought to have adduced evidence to prove the transaction. The non-**_ **CRL.APPEAL NO.413 OF 2005 11** _**production of the bills and omissions to mention the date of alleged sale are very fatal to the complainant’s case. PW3 deposed that Ext.P1 cheque was issued in his presence. But that is not mentioned in the complaint and in Ext.P3. Pw3 examined on the side of the complainant is not well acquainted and competent to speak all the facts in the business transaction between the complainant and the accused. So, I hold that the complainant has failed to prove the alleged offence under sec.138 of N.I.Act also. Hence,I find these Points against the prosecution.**_ **12. I see no reason to interfere with the above finding of fact by the trial court in an appeal against acquittal. It is true that, the judgments relied by the counsel for the appellant are with respect to the fundamental principles regarding the presumption available in favour of a complainant under Section 138 proceedings under N.I.Act. There is no dispute about the dictum laid down by the Apex Court in the relied judgment. The counsel for the appellant relied the case of Anirudhan (supra)** **CRL.APPEAL NO.413 OF 2005 12** **because in that case also the presence of the power of attorney holder at the time of execution is not mentioned and even then this Court relied the evidence of power of attorney holder. Each case has to be considered based on the evidence in that particular case. This Court finds that the appreciation of evidence by the trial court is perfect in this case. Therefore, considering the entire facts and circumstances of this case, I see no reason to interfere with the acquittal order passed by the trial court.** **Therefore, this Criminal Appeal is dismissed confirming the judgment dated 28.2.2004 in C.C.No.197 of 2000 on the file of the Judicial First Class Magistrate Court, Kunnamangalam.** ## **Sd/-** **P.V.KUNHIKRISHNAN** ## **pkk** **JUDGE**