N.G.UNNIKRISHNAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935** **CRL.A.No. 2156 of 2007 (D) ---------------------------** **AGAINST THE JUDGMENT IN CC 1769/1998 of J.M.F.C.-II, ERNAKULAM DATED 28.03.2003** ## **APPELLANT(S)/COMPLAINANT:** **------------------------** **N.G.UNNIKRISHNAN, SREE SARADA PRASADAM CHURCH ROAD, PALARIVATTOM.** **BY ADVS.SRI.T.RAVIKUMAR SMT.G.AMBILI** ## **RESPONDENT(S)/ACCUSED:** **-----------------------** **1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. K.J.LAWRENCE, KOLOTHUM PARAMBIL HOUSE, MAY FIRST ROAD, THAMMANAM KOCHI-682 032.** **3. ISABEL M.V., W/O. LAWRENCE K.J., ST.JOSEPH'S HIGH SCHOOL, CHATHIATH, PACHALAM KOCHI.** **BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH FOR R1 BY ADV. SRI.AGINOV MATHAPPAN FOR R2 AND R3** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** **------------------------------Crl.A.No.2156 of 2007 ------------------------------Dated this the 24[th] day of October, 2013.** ## **J U D G M E N T** The appellant herein is the complainant in C.C.No.1769/98 of the court of Judicial First Class Magistrate-II, Ernakulam. The learned Magistrate by his judgment dated 28.3.2003 in C.C.No.1769/98, acquitted the accused, two in numbers, who faced the prosecution for the offence punishable under sections 420 r/w 34 of IPC. Aggrieved by the above order of acquittal, the complainant therein preferred the present appeal. 2. The case of the appellant/complainant is that accused nos.1 and 2 are husband and wife and family friends of the complainant. The 2[nd] respondent/1[st] accused received a total sum of `3,75,000/- from the appellant/ complainant, after making him believed that the accused would purchase a house for the complainant. According to **Crl.A.No.2156 of 2007** 2 the appellant/complainant, the accused dishonestly induced him and received the said amount from him, but the accused did not materialise the promise and when the complainant demanded back the money already paid to them, the accused nos.1 and 2 issued 4 numbers of cheque and a signed blank stamp paper in favour of the complainant. But according to the appellant/complainant, when he enquired with the Union Bank of India, Marine Drive Branch, as to whether there is sufficient money in the account, he was informed that the 1[st] accused is not having an account with the said bank and the cheques issued actually belong to somebodies account who is no more. Thus, according to the appellant/complainant, due to the dishonest inducement of the accused, the appellant/ complainant had given the 1[st] accused an amount of `3,75,000/- and with an atmost dishonest intention, the accused issued the cheques in favour of the appellant/ complainant and thereby the accused cheated him, when they had issued the cheques that belonged to a dead **Crl.A.No.2156 of 2007** 3 person. Thus according to the appellant/complainant, the accused has committed the offences punishable under section 420, 403 and 408 r/w 34 of IPC. 3. With the above allegation, the appellant herein approached the court below by filing a complaint and after recording the sworn statement of the complainant, the court took cognizance only for the offence punishable under sections 420 r/w 34 of IPC and no cognizance was taken for the offences punishable under sections 403 and 408 of IPC, though that are alleged in the complaint. Thus, on taking cognizance, C.C.No.1769/98 was instituted in the trial court and when the accused appeared, PW1 was examined and Ext.P1 to P5 were marked and thereafter a formal charge for the offence punishable under sections 420 r/w 34 of IPC was framed, which when read over and explained to the accused, he in turn denied the charge and pleaded not guilty, and thereafter the witnesses already examined were examined in re-cross. Thereafter, PW2 was also examined from the side of the complainant. Ext.D1 was produced and **Crl.A.No.2156 of 2007** 4 marked from the side of the accused and the trial court finally found that there is no sufficient material to conclude that the accused nos.1 and 2 are having nexus with Exts.P1 to P5 documents and also held that in the absence of palpable evidence, it was not safe to hold that the accused were having criminal liability, as far as the issuance of Exts.P1 to P5 documents are concerned and the complainant could not prove his case beyond shadow of reasonable doubt and hence the complainant's case fails, consequent to which, the accused were found not guilty of the offence u/s 420 r/w 34 of IPC and they were acquitted u/s 248(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 4. Heard Adv.Sri.T.Ravikumar, learned counsel for the appellant and Adv.Sri.Aginov Mathappan, learned counsel for the 2[nd] and 3[rd] respondents. 5. Learned counsel for the appellant after having taken me through the evidence of Pws.1 and 2 and the impugned judgment, it is submitted that the appellant/ **Crl.A.No.2156 of 2007** 5 complainant has adduced cogent evidence in support of his allegation against the respondents/accused, but the trial court erroneously held that, the accused has no nexus with Exts.P1 to P5 documents and went wrong in holding that the appellant/complainant could not prove his case beyond doubt. Per contra, learned counsel for the respondents contended that the appellant/complainant has no consistent case with respect to the transaction and he had miserably failed to establish the essential ingredients of sections 420 r/w 34 of IPC. According to the learned counsel, the findings of the court below are fully justified in view of the evidence and materials on record and therefore no interference is warranted. 6. I have carefully considered the rival contentions advanced and I have perused the evidence and materials on record. 7. In the light of the rival contentions advanced and in view of the evidence and materials on record, the question to be considered is whether the trial court is **Crl.A.No.2156 of 2007** 6 justified in its finding and acquitting the accused of the offences punishable under sections 420 and 34 of IPC and whether the appellant has succeeded in making out any case so as to interfere with the order of acquittal recorded by the trial court in favour of the respondents/accused. 8. At the outset it has to be noted that, though the appellant/complainant has approached the trial court seeking the court to take cognizance upon the allegation raised in the complaint for the offence punishable under sections 420, 403 and 408 r/w 34 of IPC, the court below was reluctant in taking cognizance for the offence punishable under sections 403 and 408 of IPC. Section 403 deals with **dishonest misappropriation of property** whereas Section 408 deals with **criminal breach of trust by clerk or servant** . However, considering the ingredients of Sections 403 and 408, it is for the appellant/ complainant to show that there was entrustment of the property. But in the present case, though the court took no cognizance for the said offence, namely under sections 403 **Crl.A.No.2156 of 2007** 7 and 408 of IPC, the complainant did not challenge the above order of the court below in not taking cognizance under section 403 or 408 of IPC, which according to me, will go against the appellant/complainant. 9. The respondents/accused are called upon to face the charge for the offence punishable under sections 420 r/w 34 of IPC. Section 420 reads as follows : “420. **Cheating and dishonestly inducing delivery of property** . --Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Similarly, Section 415 reads as follows : “415. **Cheating** .--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. **Crl.A.No.2156 of 2007** 8 Explanation.-- A dishonest concealment of facts is a deception within the meaning of this section.” 10. In the light of the above definition and in view of the arguments advanced, the question to be considered is whether the appellant being the complainant has succeeded in establishing the essential ingredients of sections 415 and 420 of IPC. In page 5, in paragraph continuing from page 4 of the complaint, it is pleaded that, “Their intention to cheat the complainant is clear from the fact that they had entrusted four cheques to the complainant belonging to a dead person.” So, essentially the pleading of the complainant, to attract sections 415 and 420, is that the complainant was cheated by the accused by entrusting four cheques which belonged to a dead person. From the averments in the complaint and from the evidence of Pws.1 and 2, it appears that even though there is no cogent and satisfactory evidence, the version of the complainant is to the effect that the accused received money on four occasions. The further evidence of Pws.1 **Crl.A.No.2156 of 2007** 9 and 2 shows, even if the same is not believable, that the cheques (P1 to P4) and P5 stamp paper were given to the appellant/complainant on a later stage. So, on a conjoined reading of the averments in the complaint and the evidence on record would not show that the complainant had parted the money on receiving the cheques and Exts.P1 to P4 and P5 document signed by some other person. So, the very root of the case of the complainant goes, since the available facts are not sufficient to attract the essential ingredients of sections 415 and 420 of IPC and to show that the complainant was induced by the accused and he parted the money on providing or handing over the cheques and the stamp paper to the complainant. Based on such pleading and evidence, it cannot be held that the accused have maintained any dishonest intention at the time of the alleged receipt of money. 11. Moreover, on a reading of the complaint, the trend of the allegation shows that the appellant/ complainant was in need of purchasing a residential **Crl.A.No.2156 of 2007** 10 building and the matter was discussed with the respondents/accused and they expressed their willingness to search a suitable house for the appellant/complainant and connected with that, on several occasions, money was handed over to the 1[st] accused. It is on the above premises, the complaint was launched and the same was prosecuted by the complainant. But when PW1 was examined, during the chief examination itself he has stated that, “എന�ക� വ�ട� വ�ങ�നത�ന�യ� ഞ�ന ട� A1 നന ച�മതലന�ട�ത�യ�ര�ന�. ത�ടരന� ട� വ�ട�ല Advance ന��ട�ക�നനന� പറഞ� ഞ�ന ഒര� ലക# ര$പ ട� A1 ന നല��. 20.11.1997-ല അപപ��ര# ട� A1 എന�ല ന�ന�# ഒര� ലക# ര$പ A2-ന* �$നട എന* അമയ�നടയ�# , എന* 2 . സ�ഹ0ത�കള2നടയ�# സ�ന�ധ4ത�ല ക��റ�യ�ര�ന� അത�ന�ശ8ഷ# 20.1.98-ല ട� A1 എന�ല ന�ന�# ഒര� ലക# ര$പ ട� രണ� . സ�ഹ0ത�കള2നട സ�ന�ധ4ത�ല ക��റ�യ�ര�ന� അത�ന�ശ8ഷ# 20.9.98--ല ഒര� ലക# ര$പയ�# , 3.5.98-ല 75,000/- ര$പയ�# A1 എന�ല ന�ന�# ക��റ�യ�ര�ന� . ട� സ#ഖ4 3,70,000 ര$പ എന�ക� വ�ട� A1 . വ�ങ�നത�ന�യ� ട� എന�ല ന�ന�# ക��റ�യത�ണ എന�ല ## **Crl.A.No.2156 of 2007** 11 ന�ള�ത�വനര ട� A1 എന�ക� വ�ട� വ�ങ� തര��ശയ� , plot വ�ങ�തര��ശയ� ഉണ�യ�ട�ലF .” So, the above evidence of PW1 which he had given during his chief examination shows that the entire amount was given for the purpose of giving advance for the proposed purchase of building for and on behalf of the appellant/complainant. It is quite improbable and unbelievable that the amount was being given in advance even without seeing the property and after making up the mind to purchase such building. His claim that he released the amount on four occasions, according to me, in the above situation it is not acceptable for a prudent mind. 12. To prove the above transaction of paying the amount on four occasions to the respondents/accused, the complainant has examined PW2, who claimed to be an independent witness and also a common friend of both the complainant and accused. But during his chief examination, PW2 has stated that, “ത�ടരന� 1997 Nov.-ല ഒന�# പപത�യ�# ഭ�ര4യ�# �$ട� വന� ഒര� ലക# ര$പ വ�ദ�ശയ�ട �ടമ�യ� ആവ84ന�ട2. അപപ��ര# ഒര� ദ�വസ# ഞ�ന വ�ദ�യ�നട വ�ട�ല ഉളശ��ള പപത��ള **Crl.A.No.2156 of 2007** 12 ഒര� ലക# ര$പ വ�ദ�യ�ല ന�ന�# �ട# വ�ങ�. അത�ന�ശ8ഷ# ഒര� ലക# ര$പ 1998 January-ല A1, വ�ദ�ശയ�ട� �ടമ�യ� ആവ84ന�ട2 . ട� ത��യ�# വ�ദ� പപത�ക� ന��ട�ത� . ട� 2 അവസരങള�ല�# ഞ�ന ഉണ�യ�ര�ന�. അത�ന�ശ8ഷ# 1998 March-ല�# A1 ഒര� ലക# ര$പ ട� വ�ദ�ശയ�ട ആവ84ന�ട��യ�# അപപ��ര# ഒര� ലക# ര$പ വ�ദ� A1-ന ന��ട�തത�യ� ഞ�ന അറ�ഞ�. 1998 May-ല 75,000/- ര$പ �$ട� A1 ” �ടമ�യ� വ�ദ�യ�ല ന�ന�# ക��റ�യ�ര�ന� . Thus, entirely different from the version of PW1, PW2 - own witness of the complainant, deposed that the respondents/accused borrowed money from the appellant/complainant on four occasions. Thus, as to the claim of the complainant, particularly about the transaction, there is no safe and believable evidence and the complainant's evidence and his own witness's evidence, ie., PW2, are contradictory in nature and they have stated about the two different transactions. Thus, as to the entrustment of the amount with the respondents/accused as claimed by the appellant/ complainant, there is no consistency in the evidence. According to me, the failure on the part of the appellant/ **Crl.A.No.2156 of 2007** 13 complainant in challenging the order of the court below in not taking cognizance for the offence under sections 403 and 408 is relevant and material in this context, particularly in the light of the above evidence. So, to prove the factum of entrustment of a sum of `3,75,000/-, absolutely there is no reliable and acceptable evidence and the above lacuna goes against the case of the appellant/ complainant that the respondents/accused cheated him. 13. PW1, the complainant, says that he produced the cheques in the bank and thus he came to know the fact that the cheque leaves belong to the account of a deceased person. He stated in the chief examination that, “ട� cheques Bank-ല present നചയതശ��ള A1 and 2-ന ട� Bank-ല A/c ഇലF എന�#, ട� cheque leaves മരണന�ട ഒര�ള�ന* ശപര�നല A/c-ശലത�ണ എന�# പറഞ�.” But it is relevant to note that to substantiate the fact that he presented the cheques, absolutely no evidence is adduced and no dishonour memo or intimation etc. is produced. So, the above claim and allegation are **Crl.A.No.2156 of 2007** 14 baseless. 14. It is also relevant to note that going by the claim of the appellant/complainant, it appears that though the proposal was to purchase a house near and around Palarivattom at Ernakulam, during his evidence he brought out a new case to the effect that his sister had find out a building in Palakkad and for the purpose of purchasing that building, when he demanded the money from the respondents/accused, they issued the cheques in question and Ext.P5 stamp paper. 15. Further it is relevant to note that, PW2 during his cross examination has stated that, “Ext.P1 to P4 ആയ�ര�ശന� പപത��ള വ�ദ�ക� ന��ട�തനതന� പറയ�ന �ഴ�യ�ലFശലF� .(Q). ഇലF. പറയ�ന �ഴ�യ�ലF .(A). Ext.P5-ല എനQങ�ല�# എഴ�ത�യ�ര�ശന� (Q). ഞ�ന വ�ങ� ശന�ക�യ�ട�ലF. (A).” After perusal of Ext.P5, during the examination, PW2 has admitted that in Ext.P5 it is written as P.K.Xavier. In this juncture it is relevant to note that about the entrustment of Exts.P1 to P4 cheques and Ext.P5, PW2 did not support the case of PW1, the **Crl.A.No.2156 of 2007** 15 complainant. But it is relevant to note that on a perusal of Exts.P1 to P4 and P5, the signatures in these documents are one and the same. Namely, all the four cheques as well as Ext.P5 stamp paper contain the same signature. In Ext.P5 stamp paper, it is written as P.K.Xavier and put the signature, which in all respect is identical and similar to the signatures in Exts.P1 to P4. If the allegation of the appellant/complainant is true and correct that, the respondents/accused handed over Exts.P1 to P4 cheques and Ext.P5 stamp paper, he could have very well realised that the stamp paper is not signed by the respondents/ accused and he can easily understood that the signatures shown in Exts.P1 to P4 cheques are similar to the signature seen in Ext.P5 and he could have come to a conclusion that the signatures are not that of the respondents/accused. Moreover, it is relevant to note that the appellant/ complainant has no case that the respondents/accused executed the cheques by putting the signature in the cheques as well as in Ext.P5 before the complainant. So, **Crl.A.No.2156 of 2007** 16 absolutely there is no evidence to show that Exts.P1 to P4 cheques and Ext.P5 stamp paper were duly signed by the respondents/accused and handed over the same to the complainant. 16. Thus, on a total consideration of the facts and circumstances involved in the case, particularly on the basis of the evidence and materials on record and the paucity of pleading and supporting evidence, and in the light of the above discussion, according to me, the appellant/complainant has miserably failed to make out a case of cheating against the respondents/accused. 17. It is further relevant to note that in a recent decision in **Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88],** has held that, “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 **Crl.A.No.2156 of 2007** 17 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: ## 21. xxxxxxxxxxxxxx “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, '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 **Crl.A.No.2156 of 2007** 18 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). On a consideration of the facts and circumstances of the case, especially in the light of the evidence and materials on record and in view of the decision cited supra, according to me, the appellant/complainant has miserably failed to bring out any compelling circumstance or substantial reason to interfere with the order of acquittal recorded by the trial court and thereby to disturb the double presumption of innocence secured in favour of the respondents/accused. Similarly, the appellant/complainant has failed to show that the findings of the court below and the reasons assigned are perverse or illegal, so as to interfere with the same, while exercising the appellate jurisdiction of this Court. 19 ## **Crl.A.No.2156 of 2007** In the result, I find no merit in this appeal and accordingly the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge