Suresh Unnithan v. P.V. Stephen Njarakkal and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934 CRL.A.No. 1842 of 2010 ---------------------[AGAINST THE JUDGMENT DTD.19.9.2007 IN CC.248/1995 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT,THIRUVANANTHAPURAM] APPELLANT(S)/COMPLAINANT: ------------------------- SURESH UNNITHAN, S/O.PARAMESWARAN UNNITHAN, MAKAM, THIRUMALA P.O. ELIPPODU, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.SUDHEENDRAN RESPONDENTS(S)/ACCUSED:: ----------------------- 1. P.V.STEPHEN NJARAKKAL, PROPRIETOR, PIONEER RELEASE, FILM PRODUCERS AND, DISTRIBUTORS OPP.YMCA, CHITTOOR ROAD, KOCHI. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.PHILIP T.VARGHESE BY ADV. SRI.THOMAS T.VARGHESE R2 BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 1842 of 2010** **----------------------------------------** Dated this the 1[st] day of January, 2013 ## **J U D G M E N T** This is an appeal filed at the instance of the complainant in a prosecution for the offence punishable under Section 420 of I.P.C. and Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') as he is aggrieved by the judgment dated 19.9.2007 in C.C.No.248 of 1995 of the court of Additional Chief Judicial Magistrate, Thiruvananthapuram by which the learned Magistrate acquitted the accused under Section 248(1) of the Cr.P.C. 2. Heard the counsel for the appellant and the respondent. 3. In fact, the complainant approached the court below by preferring a complaint against the accused two in numbers alleging offences punishable under Sections 420,465,467,468 and 120(b) read with Section 34 of I.P.C. in which the allegation is that towards the discharge of a legally enforceable debt of `2 lakhs due to the complainant and `1 lakh due to the wife of the complainant, the first Crl.A.No.1842 of 2010 :-2:- respondent herein/the accused, who faced the prosecution issued two cheques, one for `2 lakhs in the name of the complainant and another cheque for `1 lakh in the name of the wife of the complainant and both the cheques were drawn from an account with account No.7/94 of Catholic Syrian Bank, Girinagar Branch, Kochi and when the said cheques presented for encashment, the same were returned unpaid due to insufficient fund in the account of the accused. According to the complainant, on verification, it was found that the cheques were drawn from the account maintained by the wife of the accused/first respondent herein and it was executed by the accused with a view to cheat the complainant and his wife. 4. On receiving the complaint, after taking sworn statement of the complainant, the case was taken on file as C.C.No.248 of 1995 on taking cognizance for the offences punishable under Section 420 I.P.C. and Section 138 of the N.I.Act alone. When the accused appeared, after examination of the complainant under Section 244 of the Cr.P.C. and after hearing the complainant as well as the accused, Crl.A.No.1842 of 2010 :-3:- a formal charge was framed against the first respondent alone and that too for the offences punishable under Section 420 of I.P.C. and Section 138 of the N.I.Act and accordingly, a formal charge was framed against the first respondent herein, who pleaded not guilty when the said charge was read over and explained to him . During the trial of the case, from the side of the complainant, Pws.1 and 2 were examined and Exts.P1 to P14 were marked. When the accused was questioned under Section 313, he had denied the incriminating circumstances and the evidence brought on record at the instance of the prosecution. From the side of the defence, DW1 was examined. Based upon the rival contentions and the evidence on record, the trial court formulated five points for its consideration. After considering the above points, in the light of the evidence and materials on record, the trial court has specifically found that in the complaint, the allegation is that Exts.P1 and P2 cheques were issued in discharge of a previous debt and the evidence are totally insufficient to arrive at a conclusion that at the time of borrowing the money, the accused has Crl.A.No.1842 of 2010 :-4:- any intention to deceive the complainant and there is absolutely no inducement to deliver any property at the time of issuing Exts.P1 and P2 cheques. On the basis of the above finding, the trial court has held that the complainant has miserably failed to adduce evidence to establish the guilt of the accused and consequently, found that the accused cannot be made liable for the offence alleged against him and thus, the accused is found not guilty for the offence alleged against him under Section 420 of I.P.C. and Section 138 of the N.I.Act and he is acquitted for the said offences under Section 248(1) of the Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 5. Learned counsel for the appellant vehemently submitted that the complainant had given the amount to the accused believing the promise that the same would be repaid, but the accused issued forged cheque and thus, the circumstances show that he has no intention to repay the amount even when he borrowed the amount and as such, the accused has fraudulently and dishonestly induced the complainant to deliver the amount and thus, the accused has Crl.A.No.1842 of 2010 :-5:- committed the offence punishable under Section 420 of I.P.C., but the trial court went wrong in holding against the complainant and acquitting the accused. It is also the submission of the counsel that going by the evidence on record, it can be seen that the accused fraudulently induced the complainant to deliver the property in favour of the complainant and he had no intention to repay the amount which is further clear from the fact that the accused issued Exts.P1 and P2 cheques pertaining to the account of the wife of the accused and therefore, ingredients of Sections 417 and 465 of I.P.C. are attracted, but the trial court without considering the above facts and evidence went wrong in acquitting the accused. 6. On the other hand, counsel for the respondent supporting the finding of the trial court argued that the complainant has miserably failed to establish that the accused has got a fraudulent intention to deceive the complainant and therefore, the trial court is fully correct in acquitting the accused. Thus, according to the counsel, the appellant has miserably failed to make out any case so as to interfere with the Crl.A.No.1842 of 2010 :-6:- order of acquittal recorded by the trial court. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the respondents. 8. In the light of the rival contentions advanced, the question to be considered is whether the appellant has succeeded in substantiating his challenge against the finding of the court below and whether he had succeeded in making out any compelling or substantial reason to interfere with the order of acquittal recorded by the trial court in favour of the accused. 9. As rightly pointed out by the counsel for the respondents, though initially the complainant approached the court below raising various allegations and offences including the offences under Sections 420,465,467,468 and 120(b) I.P.C. read with Section 34 and against the respondents/accused and his wife, the court took cognizance only for the offence punishable under Section 420 I.P.C and Section 138 of the N.I.Act., that too against the first respondent herein, the sole accused though in the complaint two persons were arrayed as accused. Crl.A.No.1842 of 2010 :-7:- The complainant was having no grievance for not taking cognizance for the other offences and not framing charge against the other accused viz., the wife of the first respondent. The appellant has no case that the trial court has overlooked any material or evidence on record which are in favour of the complainant and came into an erroneous conclusion. From the admitted facts, particularly the averments in the complaint and evidence which are referred to by the learned Magsitrate in the impugned judgment show that the case of the complainant in his complaint is that Exts.P1 and P2 cheques were issued towards the discharge of a previous debt due to the complainant from the accused. The learned Magistrate has specifically found that from the deposition of PW1/the complainant, the accused borrowed an amount of `2 lakhs and an amount of `1 lakh from the wife of the complainant during the month of December 1994 agreeing to repay the said amount on demand. The complainant has no case that he had handed over the money to the accused on the basis of Exts.P1 or P2 cheques executed and given to the complainant. Crl.A.No.1842 of 2010 :-8:- No other document is seen produced to show the transaction taken place during the month of December, 1994. It is the further case of the complainant that when he demanded back the amount given to the accused during the month of December,1994, the accused issued Exts.P1 and P2 cheques during the month of February 1995 and those cheques are post dated cheques. So, it is crystal clear from the evidence of the complainant itself and from his averments in the complaint that Exts.P1 and P2 cheques were issued subsequent to the original money transaction claimed by the complainant and the complainant has no case that those amounts were given to the accused on receiving Exts.P1 and P2 cheques. It is also relevant to note that there is no evidence to come into a conclusion that the complainant was fraudulently induced to deliver money to the accused as claimed by him. So according to me, the learned Magistrate is fully justified and correct in holding that at the time of issuing Exts.P1 and P2 cheques, there never took place any corresponding money transaction and consequently, the evidence is not at all sufficient to arrive at a Crl.A.No.1842 of 2010 :-9:- conclusion that at the time of borrowing the money, the accused was having any intention to deceive the complainant. So, according to me, the above findings of the court below are supported by the evidence and materials, which would further show that the complainant has miserably failed to establish the essential ingredients of Section 420 I.P.C. and Section 138 of the N.I.Act. Therefore, according to me, the finding of the court below cannot be treated as perverse or illegal so as to interfere in an appeal against the order of acquittal. 10. In a recent decision of the Apex Court reported in **State** v. **of Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “ _In cases where there are exceptional compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.”_ Thus, on examination of the facts and circumstances involved in the Crl.A.No.1842 of 2010 :-10:- present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, it can be seen that the appellant has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question. In the result, this Criminal Appeal is dismissed. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.1842 of 2010 :-11:-