Sathyaseelan v. Sudesan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 18TH DAY OF NOVEMBER 2013/27TH KARTHIKA, 1935** **CRL.A.No. 1888 of 2008 ( )** **---------------------------** **AGAINST THE JUDGMENT IN CC 114/2007 of J.M.F.C.COURT-III, KOTTARAKARA, DATED 23.05.2008** ## **APPELLANT(S)/COMPLAINANT::** **--------------------------** **SATHYASEELAN, S/O.GOVINDA PILLAI, LEKSHMIYIL, NEELESWARAN P.O., NEDUVATHOOR.** **BY ADV.SRI.K.SUBASHCHANDRA BOSE** **RESPONDENT(S)/ACCUSED AND STATE;:** **---------------------------------** ## **1. SUDESAN, S/O.GOPINADHAN,** **SULEKHA SADANAM, CHEERANKAVU, EZHUKONE.** ## **2. STATE OF KERALA REPRESENTED BY THE** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SRI.SYAM J SAM BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.A.No.1888 of 2008** **------------------------------Dated this the 18[th] day of November, 2013.** ## **J U D G M E N T** The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant as he is aggrieved by the order of acquittal recorded by the trial court in favour of the accused u/s.255 (1) of Cr.P.C. Thus, the challenge in the present appeal is against the judgment dated 23.5.2008 in C.C.No.114/07 of the court of Judicial First Class Magistrate-III, Kottarakara. 2. The case of the complainant is that, the accused borrowed an amount of `2 lakhs on 1.12.2006 and he simultaneously issued Ext.P1 cheque which is a post dated cheque bearing date 9.2.2006 for an amount of `2 lakhs and when the said cheque presented for encashment, the same dishonoured for the reason funds insufficient and it is the further case of the complainant that though he caused 2 ## **Crl.A.No.1888 of 2008** to sent a registered notice to the accused and though he received it, no amount was paid thereafter and therefore the accused has committed the offence punishable under section 138 of the NI Act. 3. With the above allegation, the complainant approached the court of Judicial First Class Magistrate-I, Kottarakara, by filing a complaint for the said offence and the learned Magistrate took cognizance upon such complaint for the said offence and instituted C.C.No.857/06. On the appearance of the accused, the plea of the accused was recorded. Thereafter, the case was transferred to the present trial court as per the proceedings of Chief Judicial Magistrate-Kollam, and it was re-numbered as C.C.No.114/07. Thus during the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P5 documents. At the time of defence evidence, the accused himself got examined as DW1 and produced Exts.D1 and D2. Initially, by judgment 3 ## **Crl.A.No.1888 of 2008** dated 30.4.2007 in C.C.No.114/07, the learned Magistrate has found that the accused is guilty of the offence under section 138 of the NI Act. Accordingly he is convicted thereunder. On such conviction, the learned Magistrate sentenced the accused to undergo simple imprisonment for 15 days and also directed him to pay compensation of `2 lakhs to PW1 under section 357(3) of Cr.P.C. 4. Challenging the above conviction and sentence, the accused therein preferred Crl.A.No.259/07. The lower appellate court by judgment dated 9.11.2007 in Crl.A.No.259/07 by setting aside the judgment dated 30.4.2007 in C.C.No.114/07 of the trial court, remanded the matter to the trial court for rehearing the matter after affording the accused an opportunity to cross examine the complainant and to adduce defence evidence if necessary. Accordingly, by imposing reasonable cost on the accused to be paid to PW1, the conviction and sentence and compensation ordered are set aside and remanded the 4 ## **Crl.A.No.1888 of 2008** matter to lower court to give an opportunity to the accused to cross examine PW1 and to adduce defence evidence, if he prefers so and also securing an opportunity to the complainant to adduce fresh evidence if he desires so. The accused was directed to pay cost of `3,000/- to the complainant within 5 days from the date of the judgment, failing which, it was made clear that the appeal will stand dismissed, resulting the confirmation of impugned judgment. 5. It is thereafter the present impugned judgment pronounced by the trial court. Thus on second round, the trial court has found after considering the entire evidence and materials afreshly, there was a chance of misusing the cheque, which happened to be in the hands of the complainant and thus there are two versions, ie., one in favour of the complainant and other in favour of the accused. Thus following the decision of the Honourable Apex court reported in **Narayana Menon Vs. State of** **Crl.A.No.1888 of 2008** 5 **Kerala [2006(3) KLT 404 (SC)]** , the trial court has found that when the totality of the evidence is considered, the defence version is more probable and there is absolutely no chance of advancing a sum of `2 lakhs on 1.2.2006 by the complainant and the complainant's case that Ext.P1 cheque was given by the accused for `2 lakhs borrowed on 1.2.2006 cannot be believed. So also, it is held that the complainant failed to establish that Ext.P1 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt. Consequent to the above finding, the accused is found not guilty and accordingly he is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 6. I have heard Adv.Sri.K.Subashchandra Bose, the learned counsel for the appellant and Adv.Sri.Syam J.Sam, the learned counsel for the 1[st] respondent. 7. The learned counsel for the appellant vehemently submitted that the accused has no consistent case as to **Crl.A.No.1888 of 2008** 6 how Ext.P1 cheque reached in the hands of the complainant. The learned counsel pointed out that during the 313 enquiry, which took lace on two occasions, the accused took different contentions. One of the contention is that, the cheque which given as security in connection with the vehicle transaction that occurred between the complainant and the accused, and the amount connected with such transaction though paid off, the cheque was not returned. Another contention taken by the accused is to the effect that Ext.P1 cheque was stolen by the complainant from his house in the building which was rented out to the accused by the complainant himself. So, according to the learned counsel for the appellant, the trial court has committed wrong in its finding that the cheque in question was given as a security and the same was misused by the complainant. In order to substantiate the above contention, the learned counsel took me through the deposition of PW1 as well as the deposition of DW1-the **Crl.A.No.1888 of 2008** 7 accused himself. On the basis of Ext.D1 agreement and Ext.D2 endorsement contained in R.C. book, the learned counsel submitted that the vehicle transaction has no connection with the present transaction and even according to the version of the defence, the entire matter connected with such vehicle transaction has been finally settled. According to the learned counsel, the evidence on record shows that the cheque in question is issued by the accused connected with the amount borrowed by the accused from the complainant on 1.2.2006 and therefore Ext.P1 cheque is no way connected with the vehicle transaction. 8. On the other hand, the learned counsel for the respondent submitted that the trial court on the basis of the available evidence and materials found that Ext.P1 cheque was given as a security connected with the above mentioned vehicle transaction, which finding is absolutely correct and probable in the light of the facts and **Crl.A.No.1888 of 2008** 8 circumstances involved in the case. According to the counsel for the respondent, to prove the alleged transaction, except Ext.P1 cheque there is no other evidence or materials. So, according to the learned counsel for the respondent, the findings of the court below are quite reasonable and legal and no interference is warranted. 9. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the respondent and I have perused the evidence and materials on record. 10. Having regard to the facts and circumstances involved in the case and in the light of the evidence and materials on record, particularly in view of the rival contentions advanced, the question to be considered is whether the trial court is justified in its finding and acquitting the accused and the further question to be considered is whether the appellant/accused has succeeded **Crl.A.No.1888 of 2008** 9 in making out any ground to interfere with the order of acquittal recorded by the trial court. The specific case of the complainant is that on 1.2.2006, the appellant/accused came to his house and demanded a loan of `2 lakhs and he gave the same to the appellant/accused and the appellant/ accused executed and issued Ext.P1 cheque which is a post dated cheque bearing date 9.2.2006. Besides the above bare assertion, there is no averment in the complaint or any factual input in the proof affidavit filed in lieu of chief examination of the complainant who was examined as PW1. Suffice to say, to prove the above transaction, the only document available is Ext.P1-a cash cheque and absolutely there is no other documents. It is also relevant to note that to prove the above transaction, there is no other documentary or any independent evidence other than the interested version of PW1, the complainant himself. The only case of the complainant is that he knows the accused and got acquaintance with him, as the accused was his **Crl.A.No.1888 of 2008** 10 brother's tenant. According to me, even then, there is no sufficient evidence or materials to prove the depth of the friendship between the complainant and the appellant/ accused, so as to give such a huge amount of `2 lakhs in the absence of any other security or documents. Going by the case of the complainant it appears that, on a fine morning when the appellant/accused approached the respondent/complainant in his house and requested for the amount, he simply handed over the money. There is no whisper either in the complaint or in the proof affidavit that there was a prior request for such a huge amount and the complainant has raised money on such a request and made available the same on 1.2.2006. So, in the given facts and circumstances as spelled out from the case of the complainant, it is quite unbelievable that on a fine morning the respondent/complainant was ready with the money and gave the same to the appellant/accused without any security or documents other than Ext.P1 cheque. **Crl.A.No.1888 of 2008** 11 11. In this juncture it is relevant to note that though the learned counsel made several arguments against the judgment of the trial court, all his arguments were with respect to the falsity of the defence version and defence evidence etc. According to me, in a prosecution for the offence under section 138 of the N.I. Act, when the complainant has failed to establish his case about the transaction and the execution and issuance of the cheque, the falsity of the defence case has no relevance at all. But at the same time, it is relevant to note that, in the present case, by introducing the defence evidence, it is brought out certain circumstances and the said circumstances are sufficient to render the case of the complainant as improbable and unbelievable. 12. The case of the complainant is that on 1.2.2006, the appellant/accused requested for an amount of `2 lakh and borrowed the same and simultaneously issued Ext.P1 cheque. But in the light of the defence evidence, it can be **Crl.A.No.1888 of 2008** 12 seen that there was a vehicle transaction between the complainant and the accused, and the vehicle which is covered by Ext.D1 agreement, has agreed to sell to the accused by the complainant as per Ext.D1 agreement executed on 12.1.2006, on which date the complainant accepted an amount of `1 lakh from the accused and the total sale consideration was fixed as `3 lakh, out of which, the accused has to pay `2 lakhs to the complainant. It appears from the endorsement contained in Ext.D2 R.C. Book that, the ownership of the vehicle was transferred in the name of the accused as per the endorsement dated 7.2.2006. The ownership stand transferred w.e.f. 19.1.2006. As per the recital contained in Ext.D1 agreement, the R.C.book and other documents with respect to the vehicle would be given only on paying the balance sales consideration. However, the endorsement contained in the R.C. book is dated 7.2.2006. As submitted by the learned counsel for the appellant, the balance sales **Crl.A.No.1888 of 2008** 13 consideration would have been given to the complainant by the accused on 19.1.2006. But it is pertinent to note that the above materials and defence evidence shows that when the accused allegedly borrowed the sum on 1.2.2006, as per the endorsement contained in the R.C. Book and in Ext.D1, an amount of `2 lakh being the balance sales consideration was due to the complainant. If that be so, it cannot be believed for a moment that while the said amount was due from the accused connected with transaction of the vehicle, the complainant again advanced an amount of `2 lakhs to the accused. In order to accept the case of the complainant, it is to be believed that after receiving `2 lakhs from the accused connected with the vehicle transaction, the complainant again released the same to the accused, which is not rational and sensible. So, the case of the complainant is rendered as improbable and unbelievable. 13. The Honourable Apex Court in the decision in **Crl.A.No.1888 of 2008** 14 **Krishna Janardhan Bhat Vs. Dattatraya Hegde** reported in **[2008(1) KLT 425 (SC)]** , it was held that, “The accused can make use of the defence or materials or evidence relied on by the complainant prosecution, to develop or to establish the plea of the defence so as to rebut the presumption”. In the same decision, it is further held that, “Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is “preponderance of probabilities”. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.” So, by adducing the defence evidence, the accused has succeeded in rebutting the presumption by establishing a very strong probable case as to how Ext.P1 cheque reached in the hands of the complainant. So, **Crl.A.No.1888 of 2008** 15 according to me, the trial court is fully justified in its finding that Ext.P1 cheque was the one which was given as security connected with the vehicle transaction. While the complainant has miserably failed to substantiate his claim with respect to the borrowal of `2 lakh by the accused on 1.2.2006 for the afore said reasons, the defence evidence that produced in this case will probabilise the circumstances under which Ext.P1 cheque reached at the hands of the complainant. Therefore, according to me, there is no perversity or illegality in the findings of the court below so as to interfere with the findings of the court below and the impugned judgment. 14. In a recent decision reported in **Mokkiah & Anr.** ## **Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88],** it 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 **Crl.A.No.1888 of 2008** 16 trial 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.1888 of 2008** 17 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). So, on examination of facts and circumstances of the case on hand and the evidence and materials on record, in the light of the guideline issued by the Honourable Apex Court in the above cited decision, it can be seen that the reasons assigned by the learned Magistrate in support of his finding are quite reasonable and legal, and it cannot be said that the same are perverse or illegal. The appellant has miserably failed to make out any compelling circumstances or substantial reasons to disturb the double presumption of innocence secured by the 1[st] respondent/ accused as per the impugned judgment. Therefore, no interference is warranted with the order of acquittal recorded by the trial court. 18 ## **Crl.A.No.1888 of 2008** 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