Sudha K.P. v. Jaithunnisa R.K. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944** **CRL.A NO. 61 OF 2016** **AGAINST THE JUDGMENT IN CRA 126/2015 OF SESSIONS COURT (SPECIAL ADDITIONAL SESSIONS JUDGE FOR TRIAL FOR MARADU CASES), KOZHIKODE S.T. NO. 2826 OF 2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KOZHIKODE** ## **APPELLANT/RESPONDENT/COMPLAINANT:** SUDHA K.P. AGED 48 YEARS D/O.KUNHIRAMAN NAIR, KAKKACHIPARAMBIL, SIVADAS NIVAS, CHERUVANNUR AMSOM DESOM, KOLATHARA PO, KOZHIKODE BY ADVS. SRI.P.K.RAMKUMAR SMT.ANITHA MENON ## **RESPONDENT/APPELLANT/ACCUSED & STATE:** 1 JAITHUNNISA R.K. AGED 59 YEARS W/O.RAFI AHAMMED,FORMER LECTURER, GOVT ARTS AND SCIENCE COLLEGE, MEENCHANDA, GULSHAN NIVAS, JAYANTHI ROAD, P.O.NALLAMLAM, KOZHIKODE TALUK 673027 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 682031 BY ADVS. SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP ## **OTHER PRESENT:** SRI. RENJITH GEORGE, SR.PP Crl.Appeal. 61/2016 2 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2023, THE COURT ON 03.03.2023 DELIVERED THE FOLLOWING: Crl.Appeal. 61/2016 3 ## **JUDGMENT** Dated this the 3[rd] day of March, 2023 Appellant is the complainant in S.T. No. 2826 of 2005 of the Judicial First Class Magistrate Court- V, Kozhikode. The complaint was filed alleging that the second respondent had borrowed an amount of Rs.9,50,000/- from the appellant on 02.03.2004, promising to repay the amount within three months. The first respondent failed to repay the amount as promised, instead she issued a cheque for Rs.9,50,000/- dated 30.05.2005 drawn on her account maintained with the Syndicate Bank. The cheque, on presentation, was dishonoured for insufficiency of funds. Even though statutory notice was issued, demanding payment of the amount, neither was any reply given within the prescribed time limit, nor the amount repaid. Some time later, the first respondent caused a reply notice to be sent raising untenable contentions. Hence, the complaint. Crl.Appeal. 61/2016 4 2. In the trial court, the complainant gave evidence as P.W. 1. She also examined P.Ws. 2 to 5 got marked and Exts. P1 to P12 documents. On her side, the accused gave evidence as D.W.3 and also examined D.Ws. 1, 2 and 4 and marked Exts. D1 to D23 documents. The trial court, on appreciation of evidence and consideration of the legal contentions, found the accused guilty and thereupon, convicted and sentenced her to undergo simple imprisonment for three months and to pay fine of Rs.9,60,000/-. The fine, if realised, was directed to be paid to the complainant as compensation under Section 357 (1) of Cr.P.C. 3. Aggrieved by the conviction and sentence, the first respondent preferred Crl.Appeal No. 126 of 2015 before the Sessions Court, Kozhikode. The appellate court, on reappreciation of evidence and reconsideration of the contentions, found the defence version to be more probable than the prosecution case. The appeal was therefore allowed and the second respondent acquitted under Section 255 (1) Cr.P.C. Crl.Appeal. 61/2016 5 4. Heard Adv. P.K. Ramkumar for the appellant and Adv. Arjun Sreedhar for the second respondent. 5. Learned Counsel for the appellant contended that the appellate court committed gross illegality by upsetting the well reasoned judgment of the trial court. In elaboration, it is argued that, without any definite evidence, the appellate court came to a wrong conclusion that Ext. P1 cheque of the accused was entrusted with Joshi (P.W.3) by her the accused’s husband(D.W.2) and D.W.2 presented the cheque through the complainant. In reaching the conclusion, the appellate court relied on the fact that D.W.2 and P.W.3 (Joshi) had conducted some partnership business some time back. The conduct of partnership business by D.W.2 and P.W.3 (Joshi) has nothing to do with borrowal of amount by the accused from the complainant, issuance of cheque towards discharge of that liability and dishonour of the cheque for want of sufficient funds. Likewise, the appellate court also placed heavy reliance on Ext.D9 complaint filed by the accused before the Sub Inspector of Police Kasaba alleging that the cheque entrusted by her husband with Joshi was not being returned, in spite of Crl.Appeal. 61/2016 6 her husband repaying the amount borrowed from Joshi. Reliance is also placed on the extract of the petition register maintained at the Kasaba Police Station containing Joshi's statement that he is not in possession of any of the accused's cheques and he will not initiate any legal proceedings against the accused. It is contended that instead of taking into account the cogent evidence tendered by the complainant, the appellate court relied on surmises and conjectures to find the the presumption under Section 139 of the NI Act to have been rebutted. 6. Learned Counsel for the second respondent contended that the appellant had miserably failed to prove the essential ingredients for attracting the presumption under Section 139. The very fact that the entries in the cheque are typewritten casts a shadow on the appellant's case. Further, the appellant failed to prove her financial capacity to raise Rs.9,50,000/-. Although P.W.2 was examined to prove payment of Rs.5,50,000/- to the complainant on 02.03.2004 after withdrawal of substantial amounts from the account of one Pushparajan, those materials are not sufficient to prove the Crl.Appeal. 61/2016 7 appellant's financial capacity. The appellate court had carefully analysed the evidence to hold the defence case to be more probable. It is settled law that the accused need not adduce any evidence to rebut the presumption under Section 139, but can rely on the inconsistencies and improbabilities in the complainant's evidence. In the case at hand, the accused had brought in direct evidence to rebut the presumption, in addition to the inconsistencies and suspicious circumstances emanating from the complainant's evidence. 7. A careful scrutiny of the appellate judgement reveals that the presumption under Section 139 was found to have been rebutted primarily based on Ext.D9 complaint filed by the accused before the Sub Inspector of Police, Kasaba. Therein the accused had stated that her husband had borrowed some money from Joshi (P.W.3). The liability was later discharged by issuing two cheques which were encashed by Joshi. ln addition to those cheques, her husband had also handed over one signed blank cheque belonging to the accused as security. Even after the accused’s husband discharging his liability, Joshi did not return the accused's cheque given as security Crl.Appeal. 61/2016 8 and hence, she apprehended that Joshi may misuse her cheque. When being summoned to the police station, Joshi stated that he is not in possession of any cheque belonging to the accused and does not intend to initiate any legal proceedings against her. The appellate court has held that the presentation of Ext. P1 cheque dated 30.5.2005, immediately after Joshi’s statement on 19.05.2005 creates suspicion. The suspicion is founded on the assumption that the complainant and Joshi are known to each other to such an extent for the complainant to have presented the accused's cheque retained by Joshi. For this, the appellate court relied on the written statement of the complainant and Joshi in O.S. No. 289 of 2006 filed by the accused seeking mandatory injunction, directing Joshi and the complainant to return her cheque bearing No. 520612. In my opinion, on the averment in a suit dismissed on merits, to hold in favour of the plaintiff, who is the complainant in a criminal proceeding is patently illegal. There is no provision under the Evidence Act which would enable reliance on the written statement when the suit itself is dismissed accepting the contentions in the written statement. Crl.Appeal. 61/2016 9 On the other hand, as per Sections 40 to 43 of the Evidence Act, the criminal court can consider the judgment of the civil court based on the very same cheque and the very same set of subject matter as a relevant fact. This position has been laid down by a learned Single Judge in **Mohandas v. Abdul Azeez** (2011 (3) KLT SN 145), paragraph 14 to 17 of which reads as under; "14. Sections 40 to 43 of the Evidence Act deal with relevancy of previous judgments of Courts in subsequent proceedings. Section 40 postulates that the existence of any judgment, order or decree which by law prevents any Court from taking cognisance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognisance of such suit or to hold such trial. Section 41 deals with relevancy of certain judgments in probate, matrimonial or insolvency jurisdiction. It is stipulated in this section that a final judgment, order or decree of a competent Court, passed in exercise of the above jurisdiction will be relevant when the existence of any such legal character or the title of any such person or to any such thing is relevant. Section42 refers to judgments, orders or decrees other than those mentioned in Section 41 and postulates that all other judgments would be relevant if only they relate to matters of a public nature. Section 43 postulates that all judgments other than those mentioned in Sections 40, 41and 42 would be irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of the Act. 15. Thus a perusal of the above provisions contained in Sections 41 to 43 will give a clear perspective as to how judgments, orders or decrees passed by a competent court would become relevant in another case. If the decree or judgment in question is inter parties and if the existence of Crl.Appeal. 61/2016 10 the said judgment is not disputed by either of the two parties, the said judgment or decree becomes all the more relevant. It need not be stressed that the decree or judgment assumes greater relevance and significance if the decree or judgment sought to be relied on is in respect ofthe same subject matter. 16. In the case on hand admittedly the suit was in relation to the very same cheque (Ext.P1) . It is beyond controversy that the trial court had passed the judgment in the case on April 26, 1995 holding the petitioner guilty of the offence. Nevertheless, the complainant chose to institute the suit before the civil court on August 4, 1995. Apparently at that time the appeal preferred by the petitioner was pending before the Sessions Court. The civil court dismissed the suit on December5, 1997. The Sessions Court had disposed of the criminal appeal only on June 21, 2001. However it appears that the decree passed by the civil court was not brought to the notice of the Sessions Court. Anyhow the fact remains that the Sessions Court confirmed the order of conviction and sentence passed by the Trial Court. 17. As mentioned earlier, the short question that falls for consideration is whether the fate of the criminal prosecution should hang on the decree and judgment passed by the civil court based on the very same cheque. It is trite that if the criminal case and the civil proceeding are for the same cause, judgment of the civil court would be relevant, if conditions stipulated in sections 40 to 43are satisfied. It has been so held by a three Judge Bench of the Apex Court in Prem Sankar v. I.Gof Police (2002 (3) KLT 389 (SC)). However the court further cautioned that "...the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Ss.40 and 42 or other provisions of the Evidence Act, then in each case, court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein". In other words, the Court laid down that the issue will depend upon facts of each case." Crl.Appeal. 61/2016 11 8. Pertinently, the consistent defence of the accused is that only one cheque (Ext.P1) was entrusted by her husband with Joshi. In this context, Ext. P10 affidavit filed by Joshi in O.S. No. 289 of 2006 seeking permission to retain the photocopy of Cheque No. 520613 of the accused and return the original for production in C.C. 31 of 2008 filed by him before the Chief Judicial Magistrate Court, Kozhikode assumes relevance. Another piece of evidence is Ext. D17 notice issued by the accused's husband to one Radhakrishnan, stating that Cheque No. 520613 belonging to the accused entrusted with Radhakrishnan had illegally been handed over to Joshi. The above pieces of evidence would definitely indicate that another cheque belonging to the accused was available with Joshy. If so, the accused's complaint before police regarding illegal retention of one cheque by Joshi could also be with respect to cheque bearing No. 520613. Interestingly, in none of her complaints, the accused had mentioned the cheque number as 520612. 9. The finding regarding the appellant's financial capacity is also reached by the appellate court based on conjectures Crl.Appeal. 61/2016 12 and surmises, as against the cogent evidence let in by the complainant by examining P.Ws. 2 and 4. 10. The above discussion leads to the conclusion that it was not based on preponderance of probabilities, but assumptions that prompted the appellate court to hold the presumption under Section 139 to have been rebutted. In this context, it would be beneficial to take into account the following erudite exposition of the Apex Court in **Rohitbhai Jivanlal Patel v. State of Gujarat** ((2019) 18 SCC 106); “17. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This court has time and again, emphasised that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under Sections 118 and 139 of the NI Act.” The appellate court having grossly erred in appreciating the evidence and in applying the law, I am compelled to set aside the impugned judgment. Crl.Appeal. 61/2016 13 In the result, the appeal is allowed, the impugned judgment is set aside and the matter is remanded back to the appellate court for rendering a fresh judgment after proper appreciation of evidence and application of law. The fresh decision, after reconsideration, shall be rendered within six months of receipt of a copy of this judgment. The Registry shall send back the lower court records to the appellate court immediately. **Sd/-** **V.G.ARUN** **JUDGE** sb