P.P. Anwar v. Jose Sebastian and State of Kerala

CRL.A.No.649 OF 2005 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942** ## **CRL.A.No.649 OF 2005** **AGAINST THE JUDGMENT IN CRL.A NO.412/2003 DATED 05-02-2005 OF ADDITIONAL SESSIONS JUDGE, (ADHOC FAST TRACK COURT III), MANJERI** **AGAINST THE JUDGMENT IN S.T.NO.278/2001 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, (FOREST OFFENCES), MANJERI** ## **APPELLANT/RESPONDENT:** **P.P.ANWAR, S/O.P.P.KUTTIMAMMAD, MANAGING PARTNER, MODI TREADS, VADAKKUMURI, OORNGATHIRI.** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENTS/APPELLANT:** **1 JOSE SEBASTIAN, S/O.SEBASTIAN, ERATTAMUNDAKKAL VEEDU, NADAVAYAL P.O., PANAMARAM. 2 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. R1 BY ADV. SRI.BABU S. NAIR R2 BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR, SR.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.649 OF 2005 2 ## **JUDGMENT** ## **Dated this the 8th day of October 2020** The appellant is the complainant in S.T.No.278/2001 on the file of the Judicial First Class Magistrate Court II, (Forest Offences), Manjeri. The above case is initiated by the appellant against the 1[st] respondent herein alleging offences punishable under Section 138 of Negotiable Instruments Act **(** Hereinafter the parties are mentioned in accordance to their rank before the trial court). 2. The case of the complainant is that the complainant and the accused are known to each other and they were friends. The accused had purchased tread rubber from the complainant and towards the same an amount of Rs.60,000/- was due from him to the complainant. In discharging the debt, the accused had given a cheque drawn on South Malabar Gramin Bank, Nadavayal branch for an amount of Rs.60,000/-. When the cheque was presented by the complainant for encashment through his account, the same was dishonoured with an endorsement 'insufficient funds'. When lawyer notice was issued demanding the amount covered by the cheque, the accused, after CRL.A.No.649 OF 2005 3 accepting the notice refused to pay the amount or even refused to reply to the notice. Hence, it is alleged that the accused committed the offence. 3. To substantiate the case, the complainant himself was examined as PW1. One of the witness was examined on the side of the defence. Exts.P1 to P9 are the documents marked on the side of the prosecution. Ext.D1 is marked on the side of the defence. 4. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 138 of the N.I Act. He was sentenced to undergo simple imprisonment for three months and to pay an amount of Rs.60,000/- as compensation under Section 357(3) Cr.P.C. In default of payment of compensation, the accused is directed to undergo simple imprisonment for one month. Aggrieved by the conviction and sentence, the accused filed an appeal before the Sessions Court, Manjeri. The Additional Sessions Judge, (Adhoc Fast Track Court III), Manjeri considered the appeal. After re-appreciating the entire evidence, the appellate court found that the accused is not guilty under Section 138 of N.I Act. Accordingly, the learned Sessions Judge allowed the appeal after setting aside CRL.A.No.649 OF 2005 4 the conviction and sentence. Aggrieved by the above judgment this Criminal Appeal is filed. 5. Heard the counsel for the complainant and the counsel for the accused. 6. The counsel for the complainant submitted that the appellate court without considering the evidence properly allowed the appeal. According to the counsel, the appellate court ought to have rejected Ext.D1 document. The counsel submitted that there are two signatures of the complainant in the document. He disputed the signature. The counsel submitted that there are two witnesses in Ext.D1 document. Only one of them is examined. He is a close friend of the accused. The counsel submitted that DW1 who is the witness in Ext.D1 deposed before the court that he is not aware of the other witnesses. According to the counsel, that itself is sufficient to disbelieve Ext.D1. The counsel submitted that when the signature in Ext.D1 is disputed, it is the duty of the accused to prove the execution of the same. According to the counsel, the accused miserably failed to prove the execution of Ext.D1. The learned counsel also relied the judgment of this Court in **Manesh Varghese v. Sainulabudeen 2019 (3) KLT SN 37** . The learned counsel also submitted that, the CRL.A.No.649 OF 2005 5 execution of the cheque is proved. Hence the burden shift to the accused. According to the learned counsel, the accused miserably failed to rebut the presumption under Section 139 of the NI act. Therefore, the learned counsel for the appellant submitted that, the judgment of the appellate court is reversed. 7. The learned counsel for the accused supported the judgment of the appellate court. The learned counsel for the appellant submitted that, the appellate court after considering the entire oral and documentary evidence, concluded that the accused is able to rebut the presumption. The learned counsel submitted that, in such circumstances, this Court may not interfere with the acquittal order. The learned counsel submitted that, once a Court acquitted an accused, the presumption of innocence is strengthened. In such situation, the learned counsel submitted that, this Court may not interfere with the acquittal order passed by the appellate court. 8. The point for consideration is that whether the judgment of the appellate court in Crl.A No. 412/2003 is sustainable or not. CRL.A.No.649 OF 2005 6 9. The case of the complainant is that an amount of Rs. 60,000/-(Rupees Sixty thousand only) is due to him from the accused. Towards that amount Ext.P1 cheque was issued. The case of the accused is that, a blank cheque was issued as security for an amount of Rs.7,420/- at the time of purchasing tread rubber for an amount of Rs.27,420/-. The accused submitted that, the entire amount due was paid and the security cheque was not returned by the complainant. When the accused requested for returning the blank cheque, the complainant issued Ext.D1 in the presence of witnesses. According to the accused, the complainant informed him that, the cheque is lost and he received the amount. That is narrated in Ext.D1 documents. One of the witness in Ext.D1 is examined as DW1. DW1 gave evidence in tune with Ext.D1. The complainant mainly challenged Ext.D1 by saying that, the signature in Ext.D1 is disputed by him and hence the trial court was erred in relying the same. But it is a fact that, one of the witness in Ext.D1 was examined as DW1. DW1 gave evidence in tune with Ext.D1. Moreover, the appellate court considered the admitted signature of PW1 in Ext.P1 partnership deed along with the signature of the complainant in Ext.D1 documents. Thereafter, the appellate court CRL.A.No.649 OF 2005 7 concluded that, there is nothing wrong in relying Ext.D1 and the evidence of DW1. 10. Section 138 of NI Act proceedings is a criminal proceedings. Even though it is a quasi civil proceedings, the complainant in that case has to prove at least the execution of the cheque. If the execution of the cheque is proved, the burden shift to the accused. Then there is a presumption under section 139 of NI Act. The presumption is a rebuttable presumption. If the accused is able to show a probable case, it can be concluded that the presumption is rebutted. Here is a case where the accused says that, he repaid the entire amount and complainant issued Ext.D1 document in the presence of DW1. In Ext.D1, it is stated that, the blank cheque issued by the accused to the complainant is lost and he received the entire amount due from the accused. Ext.D1 is proved through DW1. The signature in Ext.D1 is also compared by the lower appellate court with Ext.P1 and concluded that, there is no serious change in the signature of the complainant in Ext.P1 and D1. Then that burden again shift to the complainant to prove that Ext.D1 is a concocted one. Here is a case where defence case is also probable. After considering these contentions the lower appellate court CRL.A.No.649 OF 2005 8 concluded in paragraph 10 of the impugned judgment which is extracted herein. “10. According to the defence the accused gave the balance amount of Rs.7,420/- and demanded his Ext.P1 to which PW1 gave Ext.D1 by specifying the number of Ext.P1 cheque in Ext.D1. PW1 in his evidence completely denied the execution of D1. DW1 is a witness to the Ext.D1. He has deposed before Court that accused paid Rs.20,000/- to the complainant and for the remaining amount gave a cheque. On 28.09.2000 the accused paid the balance amount and after receiving the amount, the complainant has not returned back the cheque and complainant told that he lost the cheque. It is in that circumstances Ext.D1 was happened to be executed and DW1 became a witness to Ext.D1. DW1 further stated that he put his signature in Ext.D1 from the complainant's shop situated in Manjeri Industrial estate. Nothing is elicited from the testimony of DW1 to say that what he deposed is not believable. No steps are also taken by the complainant to hold that Ext.D1 is a forged document. How Ext.D1 came to the hands of the accused is also not properly explained by PW1. He has no case that the signature seen in Ext.D1 does not belong to him. On perusal and on a comparison of the signature seen in Ext.D1 and in Ext.P1 partnership deed it reveals that it is Anwar who is a first partner had signed in both the documents because characteristics of both the signature in Ext.D1 in Ext.P1 are same. Therefore the probability of giving Ext.D1 for the discharge of the full amount can be believable. Therefore considering those aspects I can come to a conclusion that the amount to be paid to the complainant is already paid and it is to prove that fact. Ext. D1 was executed by the complainant. Hence the contention of the complainant that after execution of D1 also, CRL.A.No.649 OF 2005 9 there is a legally enforceable debt to the complainant from accused cannot be presumed. Hence I have no hesitation to hold that the finding of the lower court that the accused is guilty for the offence under Section 138 of the Negotiable Instruments Act is liable to be set aside. I do so.” 11. I see no reason to interfere with the above finding of fact by the appellate court. Therefore, this Criminal Appeal is dismissed, confirming the judgment dated 05.02.2002 in Criminal Appeal No.412/2003 of the Additional Sessions Judge (Adhoc Fast Track Court III), Manjeri. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** ## **ab/LU**