SATHEESH KUMAR V.K. VALIYAZHIKATHU VEEDU v. SAJU S. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 9[th] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943 CRL.A NO. 2558 OF 2009** **AGAINST THE ORDER/JUDGMENT IN ST 7/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS - III, KOLLAM Crl.L.P. 1054/2009 OF HIGH COURT OF KERALA** ## **APPELLANT/COMPLAINANT:** SATHEESH KUMAR V.K. VALIYAZHIKATHU VEEDU, KUREEPUZHA, KAVANADU P.O., KOLLAM. BY ADV SRI.R.PUSHPANGATHAN PILLAI ## **RESPONDENTS/ACCUSED AND STATE:** 1 SAJU S., YAMUNA HOTEL NEAR NEW THEATERE, THAMPANOOR,, THIRUVANANTHAPURAM. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,, ERNAKULAM. BY ADV SRI.AJAYA KUMAR. G ADV. SUDHEER GOPALAKRISHANAN PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2558 of 2009 2 ## **JUDGMENT** The appellant is the complainant in S.T.No.7/2008 on the files of the Judicial First Class Magistrate Court-III, Kollam. The aforesaid case was registered based on a private complaint submitted by the appellant against the 1[st] respondent herein alleging an offence punishable under Section 138 of the Negotiable Instruments Act. 2. The case of the appellant/complainant is that the accused issued a cheque for Rs.84,000/- drawn on the State Bank of Travancore, Bakery Junction, Thiruvananthapuram towards the payment of his wages and benefits receivable by him for his work as an employee of one Yamuna Hotel at Thiruvananthapuram which was being run by the 1[st] respondent/accused. When the said cheque was sent for collection through Canara Bank, Kollam, the same was dishonoured for insufficiency of funds. Even though statutory notice was issued, and since no amount was paid, the complaint was submitted accordingly. Crl.A No.2558 of 2009 3 3. In support of the complainant's case, the appellant got himself examined as PW1 and Exts.P1 to P6 were marked. After completion of the complainant's evidence, the 1[st] respondent was examined under Section 313 Cr.PC and the incriminating materials brought out during the course of the trial were put to him. The 1[st] respondent denied the same and pleaded innocence. The 1[st] respondent examined DW1 and Exts.D1 to D3 were marked. 4. After appreciation of the materials produced by the complainant as well as the accused, the learned Magistrate arrived at the conclusion that the 1[st] respondent is not guilty of the offence and accordingly, the complaint was dismissed. This appeal is filed challenging the order of acquittal. 5. Heard Sri.R.Pushpangathan Pillai, the learned counsel appearing for the appellant and Sri.Ajaya Kumar, the learned counsel appearing for the 1[st] respondent. 6. The contention put forward by the learned counsel for the appellant is that the learned Magistrate committed a serious error in finding the 1[st] respondent not guilty by placing Crl.A No.2558 of 2009 4 reliance upon Ext.D1. It is pointed out that the contents of Ext.D1 were not accepted by the appellant, even though the signature thereon was admitted to be that of him. The learned counsel also submitted that the learned Magistrate failed to give due emphasis to the presumption available in favour of the appellant as contemplated under Sections 118(a) and 139 of the Negotiable Instruments Act. In such circumstances, the interference in the order of acquittal was sought. 7. On the other hand, the learned counsel appearing for the 1[st] respondent would oppose the aforesaid contentions. According to him, the specific case of the accused is that no cheque, as alleged by the appellant, has been issued in his favour. The cheque, which is the subject matter of the complaint, was initially submitted by the appellant before one Purushothaman, who was running another hotel named Sopanam Hotel, where the appellant, and the 1[st] respondent, was working as an employee. It is pointed out that there was a dispute relating to the salary payable to the appellant by DW1, the owner of Sopanam Hotel, which arose from certain Crl.A No.2558 of 2009 5 misappropriation of amounts allegedly carried out by the appellant herein in the said hotel. Ext.D1 is a document which was issued by the appellant herein in favour of DW1. In Ext.D1, it is specifically mentioned that the cheque which is a subject matter of this case, was submitted by the appellant herein to DW1 as a security, as part of the settlement of disputes between DW1 and appellant. Ext.D1 is a document which was claimed to be executed by the appellant when the aforesaid dispute was settled and the amounts towards the salary arrears receivable by the appellant were paid by the DW1. It is mentioned in Ext D1 that the cheque mentioned above(issued by the 1[st] respondent) was lost, and no claim would be raised by the appellant in respect of the same. It was pointed out that the learned Magistrate found the 1[st] respondent not guilty by placing reliance upon the aforesaid documents. In such circumstances, it is pointed out that no interference is warranted, and it is only to be dismissed. 8. Therefore, the primary contention that arises is as to whether any interference is warranted in the finding entered by Crl.A No.2558 of 2009 6 the learned Magistrate. The specific defence that the 1st respondent has taken is that no cheque was issued in favour of the appellant herein. He even denies the employer/employee relationship between the 1[st] respondent and the appellant. According to the 1[st] respondent, both parties worked as employees of one Sopanam Hotel owned by DW1. When there arose a dispute between the appellant and DW1, for settlement of the dispute, the 1[st] respondent herein issued a blank cheque for the purpose of providing security and the same was entrusted with DW1. The aforesaid dispute was later settled between the appellant and DW1, and while settling the matter as above, Ext.D1 was issued. On perusal of Ext.D1, it is evident that the aforesaid cheque was specifically referred to therein, and the loss of the abovementioned cheque is also acknowledged by the appellant herein. The aforesaid transaction was in the year 2003, whereas the said cheque is claimed to have been issued by the 1[st] respondent herein in favour of the appellant in the year 2005. Ext.D1 is proved by examining DW1, a party to the aforesaid document. In cross Crl.A No.2558 of 2009 7 examination of DW1, the appellant herein, no challenge is seen raised as to the authenticity of Ext.D1. In addition to the above, Ext.D2 and D3 are the voucher and account books pertaining to Sopanam hotel. One of the crucial aspects is that while the appellant was examined as PW1, the appellant has denied his employment under DW1 except for a period of three days. On the other hand, Ext.D1 document coupled with the other documents produced by the defence, such as Ext.D2 and D3, would show otherwise. When all these aspects are taken into consideration, it is evident that the 1[st] respondent/accused was able to raise a probable case to the effect that the cheque which was obtained from the 1[st] respondent herein as part of the settlement of the dispute between DW1 and the appellant was later misused by the appellant herein. 9. The execution of a cheque indeed attracts presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act. However, it is a well-settled position that the said presumption is rebuttable. In case the accused establishes a probable case as against the case of the Crl.A No.2558 of 2009 8 complainant, the presumption would stand rebutted and thereupon, the burden would shift upon the complainant. In this case, by virtue of the defence evidence in the form of DW1 as well as the documents produced and marked through him, a probable case has been set up by the 1[st] respondent herein. In such circumstances, the burden is shifted upon the complainant. 10. When I examine the materials produced by the appellant/complainant herein, by placing the burden to establish the same upon the appellant, it is to be noticed that, apart from the mere averments in the complaint, no other independent evidence has been produced. The claim put forward by the appellant concerning the amount mentioned in the cheque is that of arrears of salary payable by the 1[st] respondent pertaining to the period during which the appellant worked as an employee in the hotel named ‘Yamuna’ run by the 1[st] respondent. However, the 1[st] respondent has specifically denied the running of the establishment by him, and he even denied the employeremployee relationship between the parties. In such Crl.A No.2558 of 2009 9 circumstances, as the burden was already upon the appellant to establish the offence, the complainant ought to have adduced some evidence in support of the same. When I examine the materials available on record from that perspective, it can be seen that no evidence in that direction is brought out. In such circumstances, I am of the view that the finding entered by the learned Magistrate does not warrant any interference. 11. In **Chandrappa and Others v. State of Kerala [(2007) 4 SCC 415],** the Honourable Supreme Court observed that, when the appellate court is considering an appeal against the acquittal, the court should bear in mind that the accused is entitled to a double presumption in his favour. One is arising from to principles of criminal jurisprudence where the accused is treated as innocent until proven guilty. The second presumption emerges from the finding of not guilty by the trial court. It is also observed that when two views are possible in respect of the guilt of the accused, the view that is taken by the trial court is to be adopted. In this case, when I examine the materials available on record, I find that there is no evidence Crl.A No.2558 of 2009 10 available to rebut the double presumption which stands in favour of the 1[st] respondent and to find him guilty. In such circumstances, I do not find any merits in this appeal. Accordingly, this appeal is dismissed, and the judgment dated 09.09.2009 in S.T No.7/2008 passed by Judicial First Class Magistrate Court-III, Kollam, is hereby confirmed. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk