P. N. Sugathan Nair v. T.R. Ramesh and State of Kerala

Crl.A.No.529/2006 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 15[TH] DAY OF MARCH 2022 / 24TH PHALGUNA, 1943_ _CRL.A NO. 529 OF 2006_ _AGAINST THE ORDER/JUDGMENT IN CC 697/2001 OF JUDICIAL MAGISTRATE_ _OF FIRST CLASS ,VAIKOM Crl.L.P. 113/2006 OF HIGH COURT OF KERALA_ ## _APPELLANT/COMPLAINANT:_ _P.N.SUGATHAN NAIR, S/O.T.N.GOVINDA PILLAI, REMYA HOUSE, PADINJARAKKARA P.O., VAIKOM TALUK._ _BY ADVS. K.ARJUN VENUGOPAL SHAHIR SHOWKATH ALI_ ## _RESPONDENT/ACCUSED:_ _1 T.R.RAMESH, S/O RAMAKRISHNAN, RENJINI HOUSE, NATTAKOM P.O., KOTTAYAM._ _2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA._ _BY ADVS. SRI.FIROZ K.ROBIN SRI.J.JULIAN XAVIER_ _SRI.RANJIT GEORGE – SR. PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ Crl.A.No.529/2006 2 ## **J U D G M E N T** This appeal is submitted by the complainant in C.C.No.697 of 2001 on the file of the Judicial First Class Magistrate Court, Vaikom. The aforesaid case arises from a complaint submitted by the appellant herein against the 1[st] respondent for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter called ‘NI Act’) and also under section 420 of the Indian Penal Code. The gist of the allegation in the complaint is that the 1[st] respondent had borrowed an amount of Rs.50,000/- from the appellant on 22.03.2000 and towards repayment of the same, a cheque was issued in favour of the appellant. However, when the aforesaid cheque was presented for encashment through the bank, the same was dishonoured with an endorsement ‘Stop payment’. The appellant issued a statutory notice in time, to which a reply notice was sent by the 1[st] respondent disputing the transaction. The complaint was submitted in such circumstances. 2. In support of the case of the complaint, he got himself examined as PW1 and PW2, and Exts.P1 to P9 were marked. After the closure of the complainant's evidence, the 1[st] Crl.A.No.529/2006 3 respondent was examined under Section 313 Cr.P.C., and the incriminating materials brought out during the trial were put to him, which he denied. In his defence, the 1[st] respondent examined DW1 and DW2 and Exts.D1 to D3 were marked. Later, after examining the materials available on record, the learned Magistrate discharged the 1[st] respondent from the offence under section 420 of the Indian Penal Code and acquitted him under section 138 of the Negotiable Instruments Act. 3. This appeal is filed by the appellant/complainant, challenging the aforesaid order of acquittal. Heard Sri.Arun Roy, learned counsel for the appellant, Sri.J.Julian Xavier, learned counsel for the 1[st] respondent and Sri.Renjit George, learned Public Prosecutor for the State. 4. The fundamental question that arises is whether there are any materials to interfere with the findings of the discharge and acquittal entered by the Sessions Court. The case of the appellant/complainant is that, on 22.03.2000, the 1[st] respondent borrowed an amount of Rs.50,000/- from the complainant and the cheque, which is dated 10.07.2000 was Crl.A.No.529/2006 4 issued by the 1[st] respondent. The aforesaid cheque was dishonoured as per Ext.P2 dishonour memo dated 19.07.2000. Even though the specific case of the appellant is that the transaction between the parties is lending, the 1[st] respondent denies the same. Right from the inception, i.e., at the time of issuance of reply notice to the statutory notice itself, a specific case was put forward by the 1[st] respondent. The said case is that the 1[st] respondent never had any transaction with the appellant herein. On the other hand, he purchased a National Permit goods vehicle bearing registration No.KL 7-K/2230 from one Sreekumar, who was examined as DW1. The appellant herein was the registered owner of the said vehicle, and DW1 was a vehicle broker. Ext.D1 is the agreement he produced to substantiate the same and it was marked through DW1. The total sale consideration for the said vehicle was Rs.4,50,000/and on the date of the agreement, an amount of Rs.2,00,000/was paid, and for the balance amount, DW1 had offered to arrange a credit facility. To make necessary arrangements for the same, two signed blank cheques were required by DW1 and accordingly, the same was handed over to him. It is the case of Crl.A.No.529/2006 5 the 1[st] respondent that the said cheque was later handed over by DW1 to the complainant herein. 5. When the appellant was examined as PW1, these aspects were put explicitly to him. Even though he denied the aforesaid transaction initially, he later admitted the transaction relating to the sale of the lorry to said Sreekumar for a total consideration of Rs.4,15,000/-. . According to PW1, the said Sreekumar (DW1) had paid an amount of Rs.1,65,000/- and the remaining amounts were not paid. Later, in respect of the same, a complaint was submitted by PW1 against DW1, and the same was settled by the interference of the police. The remaining amount was paid by said Sreekumar, based on the said settlement. 6. On the other hand, it is discernible from the evidence of DW1 and DW2 (the 1[st] respondent/accused) that, even though the amounts were paid to the appellant, the cheque collected from him was not returned. The reason behind the refusal to return the cheque was also explained by both the said witnesses. According to them, the appellant sold the vehicle to the DW1 on 26.11.1999 for an amount of Rs. Crl.A.No.529/2006 6 4,15,000/- and the 1st respondent purchased the said vehicle from DW1 the next day, i.e. on 27.11.1999 for an amount of Rs 4,50,000/-. Both the defence witnesses had explicitly stated that, as DW1 had earned a profit of Rs.35,000/- when he sold the vehicle belonging to the appellant to the accused herein for a higher sum, the appellant demanded a share in the additional profit. Both have stated that the appellant misused the cheque, and the complaint was submitted in such circumstances. The transaction between PW1 and DW1 is evident from Ext.D1 agreement executed between the said parties. During his examination, PW1 also admitted the transaction with DW1 in every material particulars, though he conveyed his lack of awareness relating to the transaction of DW1 with the 1[st] respondent. Moreover, the evidence of DW1 and DW2 is to the effect that, subsequently, a credit facility was arranged by DW2, for the balance sale consideration of the said vehicle in the name of the wife of the 1[st] respondent, to the tune of Rs 1,65,000/-. To prove the said fact, the 1[st] respondent relies on the Ext D2 passbook in the account of the wife of the 1[st] respondent/DW2, which reflects the said fact. According to the Crl.A.No.529/2006 7 version of the 1[st] respondent, this amount and a further amount raised by him was used to pay the balance amount to DW1, which in turn was used by DW1 to settle the payment he owed to the appellant. It is further revealed from the evidence of DW1 that, though he requested for return of the cheque while settling the said amount, he did not do so. Thus it is evident that the 1[st] respondent herein has set up a specific case denying the claim from the appellant that the 1[st] respondent had received an amount of Rs.50,000/- from the appellant. The aforesaid case is established by the evidence of depositions of DWs 1 and 2, and also by Ext D1 agreement for the sale of a vehicle and Ext D2 account statement indicating the availing of a loan of Rs 1,65,000/- in the name of the wife of the 1[st] respondent. To be precise, the 1[st] respondent put forward a specific version in connection with the purchase of the lorry through DW1, which the appellant owned at the relevant time. The specific case of the 1[st] respondent is that the cheque, which is the subject matter of this complaint, was handed over to the DW1 to arrange a credit facility. Later, the same was handed over by the said Sreekumar to the appellant. The aforesaid Crl.A.No.529/2006 8 aspects are established from the evidence of DW1 and DW2, and the same is corroborated by the documentary evidence in the form of Ext.D1. 7. The learned counsel for the appellant contended that while examining the complaint and acquitting the accused, the learned Magistrate failed to give due emphasis to the statutory presumption available in favour of the appellant by virtue of Section 118 (a) and 139 of NI Act. However, it is a well settled position of law that the aforesaid presumptions are rebuttable and if the accused establishes a probable case against the version of the complainant, the presumption above will stand rebutted. It is also well settled that, to rebut the presumption, the requirement of proof is based on the preponderance of probabilities. Absolute proof is not at all a necessity. In this case, while considering the nature of evidence adduced by the 1[st] respondent in the form of DW1 and DW2, coupled with the Ext.D1 agreement, it is seen that the 1[st] respondent was able to put forward a probable case. When the said case is considered by applying the principle of preponderance of probabilities, the Crl.A.No.529/2006 9 only conclusion possible is that the presumptions in favour of the appellant under Section 118 (a) and 139 stand rebutted. 8. The learned counsel for the appellant indeed pointed out certain discrepancies about the number of cheques claimed to have been handed over to said Sreekumar by the 1[st] respondent. It is pointed out that even though in the reply notice what is mentioned is handing over of a single cheque, in the evidence, it is said that there were two cheques. However, when I consider the consistent evidence given by DW1 and DW2, coupled with the documentary evidence in the form of Exts.D1 and D2, the only conclusion possible is that a probable case has been set up by the 1[st] respondent about the transaction relating to the sale of vehicle owned by the appellant and handing over of the said cheque in connection with the same to PW1. As I have already found, the said variation put up by the 1[st] respondent is a probable case as against the version of the appellant, the presumption stands rebutted. Upon such rebuttal of presumption, the burden to prove the transaction shifted to the appellant. When the evidence of the appellant is appreciated from that perspective, Crl.A.No.529/2006 10 it can be seen that apart from the cheque, there is no other evidence forthcoming. The only other evidence is the oral evidence of PW1 and PW2. However, PW1 clearly admitted the transaction relating to the sale of the vehicle to the 1[st] respondent herein through DW1. PW2 has indeed stated he witnessed the transaction with the 1[st] respondent. However, it is discernible that PW2 was the driver of PW1. Apart from stating that he had seen the appellant handing over an amount of Rs 50,000/- he is not aware of the details of the nature of transactions between them. On evaluating the evidence adduced from either side and particularly taking note of the consistent version of the transaction relating to the sale of the vehicle as mentioned above, as revealed from the evidence of DWs 1 and 2, a substantial part of which is admitted by the appellant, I am of the view that it not safe to convict the 1[st] respondent, based on the evidence adduced by the complainant. This is particularly so as the version of the defence, as advanced through 1[st] respondent’s witnesses, is fortified by the documentary evidence in the form of Exts D1 and D2 as well. In such circumstances, I do not find sufficient Crl.A.No.529/2006 11 materials to interfere with the finding entered by the learned Magistrate in this regard. 9. There is yet another reason. In **Chandrappa and Others v. State of Karnataka [2007(4) SCC 415],** the Honourable Supreme Court has clearly observed about the matters to be considered when the appellate court is considering the appeal against an acquittal. It was held that while deciding such an appeal, the appellate court should be conscious of the fact that, in an appeal against acquittal, the accused is protected with a double presumption of innocence. One arises from the general principles of criminal jurisprudence to the effect that a person must be treated as innocent until proven guilty, and the second presumption is because of the finding of the acquittal entered by the trial court. It was also held that when two views are possible regarding the subject matter of the case, the one supporting the reason that prompted the trial court to acquit the accused has to be accepted. When the materials available on record and the findings entered by the learned Magistrate are taken Crl.A.No.529/2006 12 into consideration, I do not find anything to interfere with or disturb the findings of the learned Magistrate. In the result, I find no merit in the appeal and accordingly, it is dismissed by confirming the judgment passed by the Judicial First Class Magistrate Court, Vaikom, dated 12.01.2006 in C.C.No.697 of 2001. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/15.3.22