Sree Gokulam Chit and Finance Company (P) Ltd. vs Suman Dominic and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 09TH DAY OF OCTOBER 2019 / 17TH ASWINA, 1941** ## **CRL.A.No.356 OF 2011** **AGAINST THE JUDGMENT IN ST 80/2009 DATED 19-07-2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV, KOTTAYAM** ## **APPELLANT/COMPLAINANT:** **SREE GOKULAM CHIT AND FINANCE COMPANY (P) LTD. WITH ITS CENTRAL OFFICE AT NO.66, ARCOT ROAD, KODAMPAKAM, CHENNAI - 600024, IS HAVING ONE OF ITS BRANCH OFFICE AT PRAKKATTU BUILDING, 1ST FLOOR, CENTRAL JUNCTION, KOTTAYAM -1, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, REJEESH K.N.** **BY ADVS. SRI.K.S.BABU SMT.N.SUDHA** ## **RESPONDENTS/ACCUSED & STATE:** **1 SUMAN DOMINIC, C/O. CHAITHANYA AYURVEDA HOSPITAL, POST ERATTUPETTA, PIN-686121.** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, 62031** **R1 BY ADV. SRI.S.RAJEEV SR.PP.SRI.SANTHOSH PETER** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-10-2019, THE COURT ON 09-10-2019 DELIVERED THE FOLLOWING:** **CRL.A.No.356 OF 2011** **2** ## **JUDGMENT** ## **09.10.2019** **The appellant herein is the complainant in S.T.No.80/2009 of the Judicial First Class Magistrate Court-IV, Kottayam, for offence punishable under Section 138 of the Negotiable Instrument Act, 1881. The case of the appellant was that, towards the discharge of a legally enforceable debt, arising from a chitty transaction, the accused executed and delivered a cheque dated 17.02.2007, for a sum of Rs.1,40,243/- (Rupees One Lakh Forty Thousand Two Hundred and Forty Three only). The cheque was presented for collection, which was returned dishonoured on the ground of “funds insufficient and drawer’s signature differs”. A statutory notice was issued which was received on 08.03.2007. It was neither replied nor the amount paid. Accordingly, the complaint was filed.** **2. Accused appeared and contested the** **CRL.A.No.356 OF 2011** **3** **proceedings. On the side of the complainant, PW1 who was the Power of Attorney Holder of the complainant was examined and Ext. P1 to P13 were marked. There was no oral evidence on the side of the accused, but Exts.D1 to D5 were marked. Exts. C1 to C3 were marked as Court Exhibits.** **3. The Court below on a detailed evaluation of the available materials found that the accused was not guilty and dismissed the complaint. Challenging the acquittal and judgment in S.T.No.80/2009, the complainant has preferred this appeal.** **4. Heard the learned counsel for the appellant and the learned counsel for the accused who is the 1[st] respondent. Examined the records.** **5. PW1 has tendered evidence touching on the case of the complainant. According to PW1, the husband of the accused had joined two chitties run from the branch of the complainant company at** **CRL.A.No.356 OF 2011** **4** **Pala. Both the chitties were bid and amounts were paid. Towards the remittance of the future instalments, documents were executed by the husband of the accused. The accused herein was the guarantor. Since default was committed, the accused, towards the discharge of the liability due from her husband and herself jointly executed Ext.P9 cheque. It was presented for collection and was dishonoured evidenced by Ext.P10 document. Ext.P11 notice was issued evidenced by Ext.P12 receipt. It was received by the accused, evidenced by Ext.P13 acknowledgment card. There was no reply.** **6. To buttress the evidence of PW1, he further relied on Exts.P2 and P5, the debt acknowledgement cards in relation to two chitties, Ext.P3 and P6, the loan ledger extracts of both the chitties and Ext.P4 and P7 account statements in relation to the above chitties. It was submitted by PW1 that the cheque was filled up, and brought to the office and signed in his presence. He further deposed that,** **CRL.A.No.356 OF 2011** **5** **the accused and her husband has not repaid the amount thereafter.** **7. The Court below did not appreciate the contentions setup by the complainant. The Court below relied on the contention of the learned counsel for the accused that, it was unbelievable that, though the chitty transaction took place from the Pala branch, the cheque was handed over at the office at Kottayam. The Court below also found that Ext. D5 notice was issued from the complainant’s office at Pala, addressed to the husband of the accused in which the amount was not specified. Court opined that, if a person is given notice regarding the exact amount to be paid, he can fill up the cheque before handing it over to the office of the holder. Since Ext.P5 did not disclose the amount payable, it could not be believed that, Ext.P9 cheque was handed over after filling it up. The Court also noticed that, Ext.P5 notice was anterior to the date of cheque. Hence the Court** **CRL.A.No.356 OF 2011** **6** **concluded that the version of PW1 that, the accused brought the cheque by filling up its content was inherently improbable, since there was no material to show that by prior notice, the amount quantified was informed to the complainant. It was also noticed by the Court below that the accused was neither the guarantor nor the subscriber of the chitty. It was not likely in the ordinary course of human conduct, that pursuant to notice issued to the principal debtor, the guarantor would issue a cheque to clear the liability. It was also pointed out by the Court below that, the execution of the cheque at the divisional office at Kottayam, was not specifically proved. The learned counsel for the respondents, contended that Exts.P3 and P6 were computer generated extracts and in the light of the** **judgment reported in** Gopinatha Kurup v State of Kerala & another (2016 KHC 98), **that a document which was not certified as contemplated under Section 65(b) of the Indian Evidence Act,** **CRL.A.No.356 OF 2011** **7** **1872, cannot be accepted, the Court below should not have accepted Exts.P3 and P6, which were all computer generated documents.** **8. It seems that, the Court below brushed aside the entire evidence essentially on surmises. The Court below over looked the fact that the accused was the guarantor to the chitty transaction. The chitty transaction by the husband of the accused is not in dispute. On the other hand, the trend of the cross examination showed that PW1 was not cross examined at length and except making a vague suggestion that the cheque was not handed over by the accused, no further defence was setup. On the other hand, in the detailed reply to the Section 313 Cr.P.C. questioning, the case setup by the accused was that, on enquiry she understood that her husband had chitty transactions. It was revealed later that, at the time of release of the cheque amounts, the office of the chitty company had insisted for a** **CRL.A.No.356 OF 2011** **8** **cheque from the wife of the debtor, whereupon the husband is stated to have forged her cheque and handed it over.** **9. It is pertinent to note that, no evidence was let in by the accused to substantiate it. On the other hand, as mentioned above, the chitty transaction of the husband stood admitted. It was also not in dispute that the wife was a guarantor. There is nothing on record to show that the husband and wife were at logger heads or that they were living separately. Her version that, the signature on the cheque was forged by the husband was not seen put to PW1 in cross examination. On the other hand, her contention is falsified from the very fact that, she has gone to the extent of stating that even the postal acknowledgment produced along with the complaint was forged and produced by the complainant themselves.** **CRL.A.No.356 OF 2011** **9** **10. The learned counsel for the accused vehemently contended that, there were substantial differences in the amounts paid and shown in the ledgers, as well as the various remittances made by the husband of the accused. However, this Court is not expected to venture into an enquriy into it, since, essentially the question of the due execution of the cheque alone is in question. The other documents were in support of it, for the purpose of evidencing that, there was a chitty transaction and that amounts were due with interest. This being the broad premise on which Exts.P3 to P8 documents were setup, the Criminal Court was not expected to go into the meticulous details of the accounts and remittances projected through the documentary evidence.** **11. It was also held by the Court below that the complainant had not specifically, disclosed the details of transaction. Since the accused was neither having any chitty transaction** **CRL.A.No.356 OF 2011** **10** **nor a defaulter, the complainant was bound to disclose the entire transaction in the complaint. The kuri transaction was not even referred to, it was held. On the other hand, the complaint itself, at paragraph 3 shows that, as on 17.02.2007 an amount of Rs.1,40,243/- (Rupees One Lakh Forty Thousand Two Hundred and Forty Three only) was due from the accused towards the chitty arrears and interest. It was true that, the accused was not the subscriber of the chitty, but she being the guarantor of the husband was liable to pay the amounts due from the chitty transaction. To that extent, the complainant has disclosed the essential details of the transactions in the complaint.** ## **12. Evidently, the court below seems to have** **been carried away by conjunctures and surmises and did not appreciate the evidence, in its** **CRL.A.No.356 OF 2011** **11** **correct perspective and also did not apply the legal principles involved with respect to section 139 of the NI Act.** **13. In the appeal, the respondent filed Crl.M.A. No,2/2019 with a prayer to introduce in evidence, Annexure R1(a) as an additional document. Learned counsel for the petitioner contended that, before the court below the complainant had relied on Exts.P3, P4, P6 and P7 which were the loan registers and extracts of the accounts and statement in relation to both the transactions. According to the accused, she had also filed Crl.M.P.No.42/2010 before the court below calling upon the plaintiff to produce several documents. It was allowed on 14/5/2010 calling upon him to produce item No. 1 document. It was contended that in the appellate stage, by order of this court dated 24/5/2019, plaintiff/appellant has produced the original records. On verifying the above records with Exts.P2 to P6, it was found that** **CRL.A.No.356 OF 2011** **12** **there was substantial difference in the remittance evidenced by the original records produced in the appellate stage and the copies of the statement produced before the trial court. It was contended that, hence the above original record produced as Annexure R1(a), may be accepted in evidence. Learned counsel pointed out certain discrepancies regarding certain remittances. It was explained by the learned counsel for the complainant that there was no discrepancy in the entries.** **14. It was further contended by the learned counsel for the petitioner that even though this Court in Gopinatha Kurup (cited supra) held that the statements required under section 65B of the Indian Evidence Act should be produced, the Hon'ble Supreme Court had held in Shafhi Mohammad v. State of Himachal Pradesh (2019 (2) KHC 80) that procedural requirement under S.65B(4) of the Evidence Act for furnishing certificate was** **CRL.A.No.356 OF 2011** **13** **to be applied only when such electronic evidence was produced by a person who was in a position to produce such certificate, being in control of the device from which the electronic document was generated. It was contended that the court below went wrong in marking Exts.P3 to P6 without insisting for the production of the above certificate.** **15. It seems that the court below, as mentioned above, did not correctly evaluate the evidence in its correct perspective. The court below did not take into consideration Exts.P3 to P6 documents. In the above circumstances, I feel that the matter needs to be considered afresh by the court below on the basis of the evidence already on record and the further evidence, if any, which both sides propose to adduce.** **In the light of the relief that is proposed to be granted, I am inclined to direct the court below to permit the plaintiff to produce the** **CRL.A.No.356 OF 2011** **14** **original records and registers, if it is proposed to be produced. The judgment of the court below is set aside. The matter is remanded to the court below to consider afresh on the basis of the available materials, after giving a reasonable opportunity to both sides to let in further evidence, if any. Thereafter, the court below shall proceed to pass appropriate orders, as expeditiously as possible, at any rate within a period of four months from the date of appearance of the parties.** **Both side shall appear before the court below on 31/10/2019.** **Sd/-** **SUNIL THOMAS JUDGE** VPK