Shaji Joseph v. Chacko Valuparambil and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 17TH DAY OF OCTOBER 2013/25TH ASWINA, 1935** **CRL.A.No. 18 of 2008 ( ) -------------------------** **AGAINST THE JUDGMENT IN CC 736/2003 of J.M.F.C.-II,HOSDRUG, DATED 17-04-2006** **APPELLANT(S)/COMPLAINANT:** **-------------------------** **SHAJI JOSEPH, AGED 31 YEARS, S/O.JOSEPH, MATTATHIL HOUSE, BHEEMANADY VILLAGE, BHEEMANADY PO, HOSDURG TALUK, KASARAGOD DISTRICT REP. BY HIS POWER OF ATTORNEY HOLDER AND FATHER M.T.JOSEPH, AGED 57 YEARS, S/O.THOMAS, RESIDING AT MATTATHIL HOUSE, BHEEMANADY VILLAGE, BHEEMANADY PO, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADV. SRI.M.SASINDRAN** **RESPONDENT(S)/ACCUSED:** **----------------------** **1. CHACKO VALUPARAMBIL, AGED 62 YEARS, S/O.UTHUPPAN, VALUPARAMBIL HOUSE, PERUMTHADAM PRAPOIL P.O., CHERUPUZHA VIA, KANNUR DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR ADV.SRI.E.M.ABDUL KHADIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.18 of 2008** **------------------------------Dated this the 17[th] day of October, 2013.** ## **J U D G M E N T** The appellant/complainant launched a complaint in the court of Judicial First Class Magistrate-II, Hosdurg, alleging offence punishable under section 138 of the NI Act against the respondent herein, as the cheque issued by him was dishonoured. But the learned Magistrate, by judgment dated 17.4.2006 in C.C.No.736/03 acquitted the accused and hence this appeal. 2. The case of the complainant is that the respondent/ accused borrowed an amount of `2 lakhs on 20.10.2002 from him and towards the discharge of the said liability, subsequently the respondent/accused issued Ext.P2 cheque dated 20.11.2002 for an amount of `2 lakhs, which when presented for encashment, dishonoured for the reason 'payment stopped' and though the respondent/accused was **Crl.A.No.18 of 2008** 2 demanded for the return of the amount by sending a lawyer notice, he failed to repay the amount and thus according to the appellant/complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, on behalf of the complainant PW1-the power of attorney holder of the complainant was examined and produced Exts.P1 to P6 document. From the side of the defence, Dws.1 to 4 were examined and Exts.D1 to D6 were produced. The trial court finally found that the respondent/ accused fairly succeeded in rebutting the presumption envisaged under section 139 of the NI Act and preponderance of probabilities and possibilities are in favour of the respondent/accused and extending the benefit of doubt, it was found that no offence under section 138 of the NI Act was made out. Consequently, the respondent/ accused was found not guilty and he is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal at the instance of the appellant/complainant. **Crl.A.No.18 of 2008** 3 3. Heard Adv.Sri.M.Sasindran, learned counsel for the appellant. Though notice was served on the 1[st] respondent, he has not chosen to defend the appeal either by himself or by engaging a counsel. 4. Learned counsel for the appellant vehemently submitted that the trial court has committed wrong in acquitting the respondent/accused by accepting his version and particularly acting upon Ext.D3 stop memo. It is also the contention of the learned counsel that in Ext.D3, the number that bears on Ext.P2 cheque is not mentioned and the respondent/accused has no case that Ext.P2 cheque was given to a third person. So, according to the learned counsel, the judgment of the trial court is liable to be interfered with. 5. I have carefully considered the arguments advanced by the learned counsel for the appellant and I have perused the evidence and material on record. 6. In the light of the contentions of the learned counsel for the appellant and in view of the defence taken **Crl.A.No.18 of 2008** 4 by the accused, the question to be considered is whether the judgment of the trial court is liable to be interfered with and whether the appellant succeeded in showing that the impugned judgment is perverse or illegal. 7. I have already referred to the case of the complainant and according to the complainant, the accused demanded a sum of `2 lakhs, which was paid to him on 20.10.2002 and towards the discharge of the above liability, the accused issued Ext.P2 cheque dated 20.11.2002, which was dishonoured on the ground 'payment stopped'. Whereas, the defence put up by the respondent/accused is that the cheque in question is the one which was given to one Kuriyakose as security when he obtained a sum of `20,000/- from him and that he repaid the said amount, but the said cheque did not return to the respondent/accused and misusing that cheque, at the instance of the said Kuriyakose, the present complaint is filed. In order to substantiate the above ground, the defence has produced Ext.D3 stop memo dated 26.8.2000. **Crl.A.No.18 of 2008** 5 Ext.D3 is a contemporary document dated 26.8.2000, which is a photostat and certified copy of the letter dated 26.8.2000 issued by the respondent/accused addressing the Branch Manager, State Bank of Travancore, Thirumeni, stating that cheque bearing numbers 948081 to 948090 of 2007 had been lost and requesting to stop the payment. In the present case, according to the complainant, the amount was borrowed on 20.10.2002 and cheque was issued on 20.11.2002, ie., atleast 2 years after Ext.D3, which means that, even prior to the alleged issuance of Ext.P2 cheque, Ext.D3 was issued in two years advance. As rightly observed by the learned Magistrate, the complainant has no case that stop memo was issued after the borrowal of the amount and issuance of Ext.P2 cheque. If that be so, according to me, the findings of the learned Magistrate is plausible and believable. The Honourable Apex Court in a decision in **Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme 88]** , has held that, **Crl.A.No.18 of 2008** 6 “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 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, reappreciate 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 **Crl.A.No.18 of 2008** 7 every person shall be presumed to be innocent 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, particularly in view of the materials produced by the defence in the light of the above decision, according to me, the appellant has miserably failed to make out a case to interfere with the order of acquittal recorded by the lower court and as such, there is no merit in this appeal and accordingly the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge