Sisupalan Nair and Others v. Joseph Varghese and State of Kerala

Crl.A.No.2460/2007 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 6[TH] DAY OF APRIL 2022 / 16TH CHAITHRA, 1944_ ## _CRL.A NO. 2460 OF 2007_ _AGAINST THE ORDER/JUDGMENT IN CC 629/2005 OF JUDICIAL MAGISTRATE_ _OF FIRST CLASS -II, KASARAGOD Crl.L.P. 1247/2007 OF HIGH COURT OF KERALA_ ## _APPELLANTS/COMMPLAINANT:_ _1 SISUPALAN NAIR, S/O. RAGHAVAN NAIR, SARANYA NILAYAM, P.O MULIYAR, KASARGOD DISTRICT AND TALUK._ _ADDL.APPEL MEENAKSHI V., LANT NO.2 AGED 60 YEARS, W/O.LATE. SISUPALAN NAIR, RESIDING IN BOVIKAN, KANATHUR ROAD, P.O.MULIYAR, KASARAGOD DISTRICT, PIN-671 542._ _ADDL.APPEL LAVANYA S., LANT NO.3 AGED 27 YEARS, D/O.LATE. SISUPALAN NAIR, RESIDING AT BOVIKAN, KANATHUR ROAD, P.O.MULIYAR, KASARAGOD DISTRICT, PIN-671 542._ _ADDL.APPEL SUKANYA S.,_ _LANT NO.4 AGED 24 YEARS, D/O.LATE. SISUPALAN NAIR, RESIDING IN BOVIKAN, KANATHUR ROAD, P.O.MULIYAR, KASARAGOD DISTRICT, PIN-671 542._ _ADDL.APPEL SHARANYA S., LANT NO.5 AGED 29 YEARS, D/O.LATE. SISUPALAN NAIR, RESIDING IN BOVIKAN, KANATHUR ROAD, P.O.MULIYAR, KASARAGOD DISTRICT, PIN-671542._ Crl.A.No.2460/2007 2 _[ADDL.APPELLANTS 2 TO 5 IMPLEADED AS PER ORDER DATED 25/9/2020 IN CRL.M.A.2/2020.]_ _BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR_ ## _RESPONDENTS/(ACCUSED):_ - _1 JOSEPH VARGHESE, S/O. VARGHESE, PALLIMALA HOUSE, MALANKADAVU, POST MANAGKAM,(VIA), CHENGALA, KASARGOD DISTRICT._ _2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _BY ADVS. M.SASIDHARAN_ _SRI.SUDHEER GOPALAKRISHANAN – PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.04.2022, THE COURT ON 6.4.22 DELIVERED THE FOLLOWING:_ Crl.A.No.2460/2007 3 ## **J U D G M E N T** The appellant is the complainant in C.C.No.629 of 2005 on the file of the Judicial First Class Magistrate Court-II, Kasaragod. The aforesaid case was taken into file on the basis of a private complaint submitted by the appellant herein for the offence punishable under Section 138 of the Negotiable Instruments Act (herein after called ‘NI Act’). 2. The case of the appellant/complainant is that the 1[st] respondent/accused had issued a cheque for Rs.85,000/- in discharge of a liability on 25.04.2005. When the said cheque was presented for collection on 02.05.2006, it was returned with an endorsement “funds insufficient’. Later, a lawyer notice was sent on 03.06.2005 to the 1[st] respondent, demanding the said amount but neither any reply sent nor any payment made by the 1[st] respondent. The complaint was submitted in the aforesaid circumstances. 3. From the side of the appellant PW1 and 2 were examined and Exts.P1 to P6 were marked. After closure of complainant’s evidence the 1[st] respondent was examined under Crl.A.No.2460/2007 4 Section 313 Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. He denied the same and stated that the aforesaid cheque was originally issued by him to one Sabu, who was conducting an institution namely Chamber Finance which was engaged in the business of conducting chitty. A friend of the accused namely Anilkumar, was a subscriber of a chitty in the said company and when he bid his chitty, the 1[st] respondent stood as surety for the same. Towards security for the said transaction, the 1[st] respondent furnished four signed blank cheques to the said company. Even though, the amounts payable by the said Anilkumar was re-paid subsequently, the cheques could not be collected from the company, as the said company was closed down by that time. In support of the defence case, the 1[st] respondent got himself examined as DW1 and Exts.D1 to D3 were marked. 4. After examining the materials available on record, the learned Magistrate arrived at a conclusion that the complainant failed to establish the guilt of the 1[st] respondent and accordingly the complaint was dismissed by acquitting the 1[st] respondent. Crl.A.No.2460/2007 5 5. This appeal is filed challenging the aforesaid order of acquittal. 6. Heard Sri.Kodoth Pushparajan, learned counsel for the appellant, Sri.M.Sasindran, learned counsel appearing for the 1[st] respondent and Sri.Sudheer Gopalakrishnan learned Public Prosecutor appearing for the State. 7. The contention of the learned counsel for the appellant is that the trial court dismissed the complaint mainly on the reason that, while describing the transaction in relation to which the cheque was issued, in his deposition as PW1, the vehicle Number was wrongly described as KL-7-E/1573 instead of KL-7B/1573. Relevance of the aforesaid vehicle number is that, according to the appellant, the liability was incurred by the 1[st] respondent as part of the consideration receivable by the appellant from the 1[st] respondent, when he sold a jeep with that registration number to the 1[st] respondent. The learned counsel places reliance upon Ext.P6 registration certificate of the vehicle bearing registration number KL-7-B/1573 to substantiate the aforesaid contention. It was also contended that, since the Crl.A.No.2460/2007 6 signature on the cheque is admitted by the 1[st] respondent, the presumptions under Section 118(a) and 139 of NI Act are attracted and the 1[st] respondent could not adduce any materials to rebut the said presumption. The aforesaid aspect was not taken note of by the learned Magistrate and hence interference in the judgment was sought for. 8. On the other hand, the learned counsel for the 1[st] respondent would contend that no transaction has occurred between the parties in relation to the cheque. It is asserted by the learned counsel for the 1[st] respondent that the cheque in question was originally issued to one Sabu while he stood as a surety for a chitty transaction made by one Anilkumar with the said Sabu. Even though the said payment was made by the said Anil Kumar, the cheque could not be collected. Later the said cheque was misused and this complaint was filed. He also places strong reliance upon the fact that, even while DW1 was cross examined by the learned counsel for the 1[st] respondent, the suggestion put to DW1 was with specific reference to the vehicle number KL-7-E/1573 and not with respect to KL-7-B/1573. Crl.A.No.2460/2007 7 Clarification regarding the vehicle number was made by PW1 while he was later re-called and examined after the evidence of DW1 was recorded. In such circumstances, it was pointed out that no reliance can be placed upon the said evidence and the learned counsel prays for dismissal of the complaint. 9. The complaint submitted by the appellant does not contain any details as to the nature of transactions based on which the aforesaid cheque was issued. The statutory notice issued by the appellant also does not contain any such details. While being examined as PW1, the appellant filed an affidavit in lieu of chief examination. In that affidavit also, the nature of transaction is not seen mentioned. However, during the cross examination of PW1, he has stated that, the 1[st] respondent became indebted to the appellant in respect of sale of a jeep bearing registration No.KL-7- E/1573. According to him, the total sale consideration was Rs.1,25,000/-, out of which the amount of Rs.40,000/- was given as cash and for the balance amount of Rs.85,000/- a cheque was issued. Crl.A.No.2460/2007 8 10. Later, when DW1 was examined, he has denied any transaction being made between him and the appellant. He denied the case of the appellant that he purchased a vehicle bearing registration No.KL-7-E/1573 from the appellant herein. He further stated that he issued four signed blank cheques to one Sabu, who was conducting an establishment namely Chamber finance as a security for the chitty transaction of one Anilkumar. Even though the said amount was paid, the said cheques could not be collected back from the said company. In the deposition, he specifically mentioned the cheque numbers given by him, as 000101, 000102, 1000103 and 1001104. Out of the said cheques, one was misused by the appellant herein and presented the same for collection. Subsequent to the examination of DW1, PW1 was recalled and in his further examination he stated that the number of the vehicle was actually mentioned by the appellant as KL-7-B/ 1573, but it was wrongly recorded in the court proceedings as KL7-E/1573. 11. However, as pointed out by the learned counsel for the appellant, it can be seen that, the cross examination of DW1 was Crl.A.No.2460/2007 9 done by the learned counsel appearing for the appellant, by specifically referring the number of the vehicle as KL-7-E/1573. Until PW1 was recalled, no documents indicating the transaction in connection with the sale of the vehicle were produced. The complaint as well as the notice also do not contain any details of the nature of debt. The affidavit filed in lieu of chief examination of PW1 also does not contain such details. The cross examination of DW1 was made by the appellant, with specific reference to the vehicle number as KL-7 E/1573. When this is considered in the factual background as mentioned above, it cannot be treated as a mere mistake in recording the deposition of the PW1. The recalling of the PW1 and introducing a case of mistake in recording the evidence could be an afterthought on the part of the appellant herein. 12. There is yet another aspect. When the appellant was further examined, he produced Ext.P6, which is an attested copy of the registration certificate of the vehicle bearing registration No.KL-7-B/1573. A perusal of the same would indicate that the said vehicle stands in the name of the appellant herein. But apart Crl.A.No.2460/2007 10 from the same, there is nothing to indicate that the said vehicle was transferred to the 1[st] respondent or to any other person, as claimed by the appellant. In addition to the above, the aforesaid copy contains certain endorsements made therein with regard to the renewal of registration certificate and payment of tax. Aforesaid entries are seen made on 16.07.2006. According to the appellant, the cheque was issued in discharge of liability incurred by the 1[st] respondent as part payment of sale consideration of the said vehicle. The cheque was dated 25.04.2005, which is much prior to the date of endorsement as contained in Ext.P6. While examining DW1, the learned counsel for the appellant put a specific suggestion to the 1[st] respondent that the registration certificate, sale letter and agreement are in possession of the 1[st] respondent herein. This would mean that, according to the appellant, while the vehicle was sold, the documents including the registration certificate were handed over to the 1[st] respondent, which is a natural consequence of a sale. In further examination of PW1, he stated that he is not aware of the person on whose possession the vehicle is. According to him, the said vehicle was Crl.A.No.2460/2007 11 at Badiyadukka at the relevant time. While analyzing the aforesaid aspects, it can be seen that, the admitted case of the appellant is that the registration certificate was handed over to the 1[st] respondent at the time of sale. Since the cheque was issued in discharge of sale consideration, obviously, sale of the vehicle must have occurred prior to 25.04.2005, the date of the cheque. In such circumstances, the fact that the endorsements made by the registering authorities in the registration certificate on 11.07.2006, happened to find a place in Ext.P6, is a matter which creates a serious doubt on the veracity of the case put forward by the appellant. If the appellant had handed over a the registration certificate to the 1[st] respondent, the question of the appellant having the copy of the registration certificate, which contain endorsements made on subsequent dates, would not normally arise. It is also evident from Ext.P6 that, the copy produced as Ext.P6 is an attested copy of the registration certificate and how the appellant could obtain attestation of the said copy without the original registration certificate, is a question which arises in this regard. The aforesaid shadow of Crl.A.No.2460/2007 12 doubt becomes stronger when he admitted that he is not aware of the person in whose possession the vehicle at present is. In such circumstances, the case put forward herein with regard to the transaction based on which the cheque issued is highly doubtful. 13. While making the aforesaid observation, I am conscious of the fact that, since the 1[st] respondent admitted the signature in the cheque, the presumption under Section 118 (a) and 139 of Negotiable Instruments Act are attracted. However, it is a well settled position of law that, the aforesaid presumption is a rebuttable presumption and such rebuttal can be made when the accused raising a probable case against the same. Rebuttal of presumption can be made on the basis of preponderance of probabilities. In **Basalingappa v. Mudibasappa [2019 (5) SCC 418]** , it was held by the Honourable Supreme Court as follows: “23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and and Section 139, we now summarise the principles enumerated by this Court in following manner:- Crl.A.No.2460/2007 13 (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence.” 14. In the light of the principles laid down by the Honourable Supreme Court, the 1[st] respondent/accused can rebut the presumption by placing reliance upon materials produced by the appellants/complainants as well. In this case, when the Crl.A.No.2460/2007 14 materials placed by the appellant are in the form of oral evidence as well as documentary evidence. There are glaring discrepancies in his case projected through the said materials, which I have already discussed above. In my view, the aforesaid discrepancy would have the impact of rebuttal of presumption which stood in favour of the appellant originally. In such circumstances, the burden to prove the transaction is shifted to the appellant/complainant. However, when the evidence adduced by the appellant is considered, there is no convincing materials to prove the transaction which resulted in issuance of the cheque. On the other hand, the evidence adduced by the appellant contains serious discrepancies which were already discussed above. In such circumstances, the only conclusion possible is that the appellant could not establish the guilt of the 1[st] respondent herein. 15. In **K.Prakashan v. P.K.Surendran [2007 (4) KLT 502]** , it was observed by this Court that, if two views are possible, the appellate court shall not reverse the judgment of acquittal only because another view is possible to be taken. Jurisdiction of Crl.A.No.2460/2007 15 the appellate court is to interfere in an appeal against acquittal is limited. In the light of the aforesaid principles and also on account of the glaring discrepancies as mentioned above, which were specifically taken note of by the learned Magistrate while arriving at the finding of acquittal, I am of the view that, no interference in the finding is warranted. In such circumstances, I do not find any infirmity in the finding of the learned Magistrate in holding the 1[st] respondent not guilty. Accordingly, the appeal is dismissed as it lacks merits and the judgment passed by the Judicial First Class Magistrate-II, Kasaragod dated 29.09.2007 in C.C.No.629 of 2005 is hereby confirmed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/21.3.22