S. Santhosh Kumar v. State of Kerala & V. Padmakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA,** **1944** ## **CRL.A NO. 351 OF 2014** **AGAINST THE JUDGMENT DATED 19.09.2012 IN CRL.APPEAL NO.190/2009 OF IST ADDITIONAL SESSIONS COURT, KOLLAM C.C. NO.2010(A)/2004 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KARUNAGAPPALLY** ## **APPELLANT/COMPLAINANT :** **S.SANTHOSH KUMAR S/O. SANKARA PILLAI, AGED 38 YEARS, CHAYAKANTAYYATHU, EDAPPALLIKOTTA P.O., CHAVARA, KARUNAGAPPALLY, KOLLAM (DISTRICT).** **BY ADVS. SRI.K.ABDUL JAWAD SRI.MATHEW A KUZHALANADAN SMT.VINEETHA V.KUMAR** ## **RESPONDENTS/STATE & ACCUSED :** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **2 V.PADMAKUMAR, AGED 57 YEARS, S/O. VASU NAIR, RETIRED GOVERNMENT SERVANT, NOW RESIDING AT ASHADEEPAM, TC 3/2364, PATTOM, THIRUVANANTHAPURAM-695 004.** **BY SRI.D.KISHORE SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.351 of 2014 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------Crl.Appeal No.351 of 2014 -------------------------------------------------------Dated this the 10[th] day of January, 2023** ## **J U D G M E N T** This appeal has been filed under Section 378(4) of the Code of Criminal Procedure (hereinafter will be referred as Cr.P.C. for convenience). The appellant is a complainant in C.C. No.2010(A)/2004 on the file of the Judicial First Class Magistrate Court, Karunagappally. The respondents herein are the accused as well as the State of Kerala. 2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the second respondent. The learned Public Prosecutor Crl.Appeal No.351 of 2014 ..3.. also was heard. 3. I shall refer the parties in this appeal as ‘complainant’ and ‘accused’ for convenience. 4. Shown off unnecessary narrations, the precise case put up by the complainant before the trial court is as under: According to the complainant, during the first week of August, 2004, the accused contacted the complainant for financial assistance to the tune of Rs.2 lakh for meeting his necessities. Accordingly, the accused borrowed the said amount and in discharge of the said liability, the accused delivered cheque for the said sum dated 19.10.2004. Although the accused issued cheque with assurance of repayment, when the same was presented for collection, Bank authorities Crl.Appeal No.351 of 2014 ..4.. returned the cheque for want of funds in the account. The further case put up by the complainant before the trial court was that even on issuance and acceptance of demand notice, the accused failed to repay the amount. Hence, compliant under Section 142 of the Negotiable Instruments Act (hereinafter will be referred as NI Act for convenience) had been filed before the Magistrate Court alleging that the accused committed offence under Section 138 of the NI Act. 5. The trial court secured the presence of the accused for trial and tried the matter as a summons case. During trial, PW1 examined and Exts.P1 to P6 were marked on the side of the complainant. 6. After questioning the accused under Crl.Appeal No.351 of 2014 ..5.. Section 313(1)(b) of Cr.P.C, though opportunity was provided to the accused to adduce defence evidence, no defence evidence was adduced. 7. On appreciation of the evidence, the trial court convicted the accused for the offence punishable under Section 138 of the NI Act and sentenced the accused to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.2 lakh to the complainant under Section 357(3) of Cr.P.C. In default of payment of fine, the accused should undergo simple imprisonment for a further period of one month. 8. The accused challenged the conviction and sentence imposed by the trial court before the Sessions Court, Kollam as per Crl.Appeal No.190 of Crl.Appeal No.351 of 2014 ..6.. 2009. The learned Additional Sessions Judge, Kollam, as per judgment dated 19.09.2012, set aside the conviction as well as the sentence and the accused was acquitted. 9. The judgment rendered by the appellate court is put under challenge in this appeal filed with leave. Leave already granted. 10. While challenging appellate judgment and supporting judgment rendered by the trial court, the learned counsel for the appellant read out paragraph No.12 of the appellate judgment, whereby, the learned Sessions Judge deviated and distinguished the finding of the trial court. It is pointed out by the learned counsel for the appellant that the learned appellate court found that upto the stage of cross- Crl.Appeal No.351 of 2014 ..7.. examination, the complainant put up a case that the accused delivered the cheque to him. But during cross-examination, he had stated that the accused brought a duly filled up cheque and signed it before him. It has been observed by the appellate court that such statement of a payee or a holder in due course was to be appreciated with much caution and such statement would suggest that there was every possibility for a material alteration of the cheque. It was observed further that the court below was mainly concerned with the case put up by the accused. The appellate court found that it was for the complainant to discharge his initial burden in the matter of proof of the cheque. Finally, it was found that from the evidence discussed, there appeared a material ..8.. Crl.Appeal No.351 of 2014 contradiction with regard to the transaction. It is argued by the learned counsel for the appellant that the finding of the appellate court in the above line is without support of any evidence and therefore, the appellate court is not justified to have a different opinion from that of the trial court regarding the execution of Ext.P1 cheque and passing of consideration mentioned therein. 11. It is argued by the learned counsel for the appellant further that during cross-examination of PW1, the defence case put up was that a blank signed cheque kept by the accused at his residence was taken away by one Ajith Kumar, who is the brother of the wife of the accused and borrowed the amount from the complainant. But no evidence adduced in Crl.Appeal No.351 of 2014 **==> picture [42 x 9] intentionally omitted <==** support of this contention. 12. It is argued by the learned counsel for the appellant further that the appellate court formed an opinion in the matter of material alteration of the cheque without support of any convincing evidence and only anomally that has been brought during cross-examination of PW1 is regarding the date of transaction. 13. According to the learned counsel for the appellant in the affidavit filed in lieu of chief examination, the complainant stated the date of transaction as 05.08.2004 instead of 15.08.2004 because of a typographical error and the same was clarified in re-examination and also by reiterating during cross-examination of PW1 that the date of Crl.Appeal No.351 of 2014 **==> picture [48 x 9] intentionally omitted <==** transaction was not on 05.08.2004 but on 15.08.2004. 14. Supporting the judgment of the appellate court and contraverting the judgment rendered by the trial court, the learned counsel for the second respondent argued that, when the complainant states different date as the date of transaction in the chief affidavit and in cross-examination, the same is a serious anomally. Therefore, the same alone is sufficient to disbelieve the case of the complainant in the matter of transaction and consequential issuance of the cheque. Therefore, the appellate court rightly disbelieved the case put up by the complainant and accordingly, held that the complainant failed to discharge his initial burden in the matter of Crl.Appeal No.351 of 2014 ..11.. transaction and execution of the cheque. 15. The crucial question arises in this appeal are: (i) Whether the appellate court is justified in setting aside the conviction and sentence imposed by the trial court as per the judgment dated 30.05.2009? (ii) Is it necessary to interfere with the appellate court judgment acquitting the accused dated 19.09.2012? ## (iii) The order to be passed? 16. While appraising the rival contentions, it is necessary to have reference to the complaint. In the complaint, the specific case put up by the complainant was that the accused demanded financial Crl.Appeal No.351 of 2014 **==> picture [48 x 9] intentionally omitted <==** assistance to the tune of Rs.2 lakh from the complainant during the first week of August, 2004 and accordingly, the accused reached the residence of the complainant and borrowed the said sum. Further case of the complainant was that in order to discharge the said liability, he had issued a cheque dated 19.10.2004 for the said sum drawn on Canara Bank, Adoor Branch. The date of borrowing or execution of the cheque not disclosed in the complaint. 17. When the complainant filed chief affidavit, he had disclosed the date of transaction as “05.08.2004”. During cross-examination, after getting adjournment of the case for cross-examination from the date of filing the chief affidavit, when PW1 was asked with regard to the date of transaction, he Crl.Appeal No.351 of 2014 ..13.. answered that the same was on '15.08.2004'. 18. During further cross-examination, when it was asked by the learned counsel for the accused that the date of transaction stated as 05.08.2004 as incorrect, PW1 had given answer that the same was incorrect and the date of transaction was on 15.08.2004. When this anomally was pointed out to canvass acquittal before the trial court, the trial court held in paragraph 8 of the judgment that though in the chief affidavit, the complainant stated the date of transaction as 05.08.2004, during cross-examination, PW1 repeatedly affirmed that he paid the amount to the accused on 15.08.2004 and the date mentioned in the chief affidavit as 05.08.2004 was not correct. 19. It was observed further that when PW1 Crl.Appeal No.351 of 2014 ..14.. was recalled as per order in Crl.M.P.No.13389 of 2008 for further chief examination also he had repeated the date of transaction as 15.08.2004 instead of 05.08.2004. 20. In this matter, in fact, there is no mention as regards the date of transaction in the complaint and the date of transaction wad disclosed for the first time, when chief affidavit was filed, as I have already pointed out. 21. The appellate court is of the view that, when the complainant would say that the accused given a cheque till chief-examination and during crossexamination, his evidence was to the effect that a duly filled up cheque was brought and signed before the complainant, the same shadows doubt and there is Crl.Appeal No.351 of 2014 ..15.. possibility of material alteration. On no stretch of imagination, it could be held that such version alone is the basis on which material alteration is to be found, since material alteration is a defence available to the accused, which requires proof by cogent and convincing evidence. Therefore, the finding of the appellate court that there is possibility of material alteration could not be justified. 22. To be on crux of this matter, no doubt, the trial court relied on the evidence of PW1 not only for the purpose of proving the transaction and execution of Ext.P1 cheque but also to over rule the anomally in the date of transaction stated in the chief affidavit by believing the version of PW1 repeatedly to the effect that the date of transaction was on Crl.Appeal No.351 of 2014 **==> picture [48 x 9] intentionally omitted <==** 15.08.2004 and not on 05.08.2004. 23. In this matter, the demand noticed issued consequent on the dishonour of cheque was duly accepted by the accused. He did not send any reply. It is pertinent to note that he had admitted his signature in the cheque. The defence case is that a blank signed cheque kept at his residence was misused by one Ajith Kumar, who is none other than the brother of the wife of the accused and in fact, apart from the said suggestion, no evidence forthcoming to see the probability of such a defence. When the complainant would say that the date of transaction shown in the chief affidavit is a typographical error by repeatedly asserting that the date of transaction was on 15.08.2004, ignoring the Crl.Appeal No.351 of 2014 ..17.. said version, it is not fair to hold that the complainant either materially altered the cheque or had given contrary statements regarding the date of transaction or to hold that the complainant failed to prove his initial burden in the matter of transaction and execution of the cheque. 24. It is the settled law that in a prosecution alleging commission of offence punishable under Section 138 of the NI Act, an initial burden is cast upon the complainant to prove the transaction and execution of the cheque, so as to avail twin presumptions in his favour. It is equally settled in law that once the initial burden is established, it is the duty of the accused to rebut the presumptions by convincing evidence. Convincing evidence includes Crl.Appeal No.351 of 2014 ..18.. evidence independently adduced by the accused or the available evidence extracted during the prosecution of the evidence as well. 25. No doubt, law regarding presumptions under Sections 118 and 139 of the N.I Act also well settled on the point that when the complainant discharged the initial burden to prove the transaction led to execution of the cheque, the presumptions under Sections 118 and 139 of the N.I Act would come into play. No doubt, these presumptions are rebuttable and it is the duty of the accused to rebut the presumptions and the standard of proof of rebuttal is nothing but preponderance of probabilities. It has been settled in law that the accused can either adduce independent evidence or rely on the evidence Crl.Appeal No.351 of 2014 ..19.. tendered by the complainant to rebut the presumptions. See decisions reported in [2010 (2) KLT 682 (SC)], **Rangappa v. Mohan** ; [2019 (1) KLT 598 (SC) : 2019 (1) KHC 774 : (2019) 4 SCC 197 : 2019 (1) KLD 420 : 2019 (2) KLJ 205 : AIR 2019 SC 2446 : 2019 CriLJ 3227], **Bir Singh v. Mukesh Kumar** , [2021 (2) KHC 517 : 2021 KHC OnLine 6063 : 2021 (1) KLD 527 : 2021 (2) SCALE 434 : ILR 2021 (1) Ker. 855 : 2021 (5) SCC 283 : 2021 (1) KLT OnLine 1132], **Kalamani Tex (M/s.) & anr. v. P.Balasubramanian** . 26. It is pointed out by the learned counsel for the appellant that in a latest decision of the Apex Court reported in [2022(5) KHC 560(SC)], **Oriental Bank of Commerce v. Prabodh Kumar Tewari,** it Crl.Appeal No.351 of 2014 ..20.. was held that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability. 27. On evaluation of the evidence as discussed herein above, the opinion formed by the learned appellate court cannot be accepted, negating the finding of the trial court. That is to say, the complainant had given evidence repeatedly suggesting the date of transaction as 15.08.2004 and pointing out Crl.Appeal No.351 of 2014 ..21.. the fact that the date mentioned in the chief affidavit as 05.08.2004 is a mistake. Unless, there is no other circumstances to disbelieve the transaction, the same alone shall not be the basis to hold that the complainant either failed to prove the transaction, passing of consideration or execution of the cheque or to hold that there is likelihood of material alteration as found by the appellate court. 28. Therefore, the judgment of the appellate court is liable to be set aside and the judgment rendered by the trial court is liable to be restored. 29. Accordingly, the appeal stands allowed restoring the judgment of the trial court. Insofar as the sentence imposed by the trial court is concerned, the same is confined to simple imprisonment for a Crl.Appeal No.351 of 2014 ..22.. period of six months and to pay compensation of Rs.2 lakh. Therefore, the sentence requires modification to meet the ends of justice and secure payment of cheque amount. 30. Therefore, the sentence stands modified as under: The accused/second respondent shall stands convicted for the offence punishable under Section 138 of the NI Act and sentenced to undergo simple imprisonment for a day till rising of the court and to pay fine of Rs.2 lakh. Fine, if any, is realised, the same shall be paid as compensation to the complainant under Section 357(1)(b) of Cr.P.C. In default of payment of fine, the accused shall undergo default imprisonment for a period of two months. 31. The learned counsel for the second respondent sought three months time to pay the amount. Crl.Appeal No.351 of 2014 ..23.. The learned counsel for the appellant also conceded for the same. Therefore, the second respondent/accused is given three months time to pay the amount. Therefore the second respondent/accused is directed to appear before the trial court on 10.04.2023 to pay the compensation or to undergo the modified sentence. The execution of the sentence shall stand deferred till 09.04.2023. On failure to do so, the trial court is directed to execute the sentence without fail. Registry is directed to forward a copy of this order to the courts below concerned for information and compliance. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj