T. Oraphel v. Saji Sukumaran and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934** **CRL.A.No. 1397 of 2004 (B) ---------------------------** **CC.1453/2001 of J.M.F.C.-I, ALUVA DATED 24-04-2004** **APPELLANT(S)/COMPLAINANT: -------------------------** **T.O.RAPHEL, S/O. OUSEPH, THEKKANETH HOUSE, CHENGAMANAD P.O.** **BY ADV. SRI.WILSON URMESE** ## **RESPONDENT(S)/ACCUSED AND STATE:** **--------------------------------** **1. SAJI SUKUMARAN, S/O. SUKUMARAN, CHUTTIKKATTU HOUSE, NEAR CHANGAMAND MAHADEVA TEMPLE, CHENGAMANAD P.O.** **2. STATE OF KERALA REPRESENTED BY THE** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SRI.THOMAS M.JACOB BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.1397 of 2004 ------------------------------Dated this the 5[th] day of March, 2013.** ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 24.4.2004 in C.C.No.1453 of 2001 of the court of Judicial First Class Magistrate-I, Aluva, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that the accused borrowed an amount of `2,35,000/- from him and out of that amount, the accused paid back only `15,000/- and when the complainant demanded the balance amount, the accused issued Ext.P1 cheque which when presented for encashment dishonoured due to insufficiency of fund in the 2 ## **Crl.A.No.1397 of 2004** account maintained by the accused and the accused has not repaid the dishonoured cheque amount in spite of a statutory notice served on him and therefore the accused has committed the offence punishable under section 138 of the NI Act. 3. During the trial of the case, the complainant himself was got examined as PW1 and produced Exts.P1 to P4 documents. From the side of the defence, Dws.1 and 2 were examined and Ext.D1 receipt marked. The trial court finally found that the accused has succeeded in probabilising his case that the cheque in question was issued as a security and further found that the complainant has failed in proving that Ext.P1 cheque was issued by the accused for a legally enforceable debt. Consequently, found that the accused is not guilty for the offence under section 138 of the N.I. Act and accordingly he is acquitted under section 255(1) of Cr.P.C. Challenging the above finding and order of acquittal, the complainant therein 3 **Crl.A.No.1397 of 2004** preferred this appeal. 4. I have heard Adv.Sri.Wilson Urmese learned counsel for the appellant and Adv.Sri.Thomas M.Jacob for R1. 5. Learned counsel for the appellant vehemently submitted that the finding of the court below, that the accused has succeeded in probabilising his case factually and legally, is incorrect. It is also the submission of the counsel for the appellant that in view of sections 118 and 113 of the NI Act, the appellant/complainant is entitled to get statutory presumption and as long as the accused has failed to prove the contrary, the trial court is wrong in not extending the said benefit in favour of the complainant. It is also the submission of the learned counsel that without getting expert opinion, the learned Magistrate went wrong in holding that the handwriting in the cheque does not belong to its signatory and further holding that the said fact probabilise the defence version. According to the 4 ## **Crl.A.No.1397 of 2004** learned counsel, the trial court has miserably failed to appreciate the evidence and materials on record in its true perspectiveness. It is also the submission of the counsel that the trial court went wrong in believing the evidence of Dws.1 and 2 and acting upon Ext.D1 receipt, to disbelieve the case of the complainant and accepting the case of the defence. On the other hand, counsel for the respondent vehemently submitted that the complainant has miserably failed to prove its case against the accused beyond reasonable doubt and the trial court is fully justified in its finding that the accused has succeeded in probabilising his case that the cheque in question was issued as a security. According to the learned counsel for the respondent, as there is no perversity or illegality in the findings of the court below and therefore this Court will not be justified in interfering with the order of acquittal recorded by the trial court in favour of the accused. 6. I have carefully considered the arguments 5 ## **Crl.A.No.1397 of 2004** advanced by the counsel for the appellant and the respondent and I have perused the judgment of the trial court as well as the evidence and material on record. 7. In the light of the rival contentions and the evidence and the materials on record, the question to be considered is whether the trial court is justified in its finding and acquitting the accused for the offence under section 138 of the N.I. Act and the further question to be considered is whether the appellant has succeeded in substantiating his challenge against the findings of the court below and made out any ground to interfere with the order of acquittal recorded in favour of the accused. The case of the complainant is that the accused borrowed a sum of `2,35,000/- from the complainant and when he demanded back the amount, the accused repaid a sum of `15,000/- and on further demand for the balance amount for `2,20,000/-, the accused issued Ext.P1 cheque. Whereas the case of the accused is that he had no 6 ## **Crl.A.No.1397 of 2004** transaction with the complainant and he had not received any amount towards loan, but his specific case is that he had issued Ext.P1 cheque in its blank form to the complainant as a security connected with a chitty transaction between the complainant and the father of the accused, and it is the said cheque which was misused by the complainant for the purpose of the present complaint. To prove the allegation of the complainant, the only evidence is that of the interested version of the complainant and Exts.P1 to P4 documents. Ext.P1 is the cheque in question and Ext.P2 is the dishonour memo, Exts.P3 and P4 are the lawyer notice and the returned postal article. Though I have repeatedly gone through the complaint, there is no whisper in the complaint as to how and why such a huge amount was given to the accused without securing any document or security. Though no details of the transaction are given in the complaint, in the proof affidavit it is stated that, the accused borrowed a 7 ## **Crl.A.No.1397 of 2004** sum of `1 lakh on 6.7.2000 and another sum of `1,35,000/on 22.7.2000. It is relevant to note that in the proof affidavit also, there is no whisper as to under what circumstances the two payments were made within a gap of 16 days. It is also not stated in the affidavit as to whether any security or document was obtained by the complainant connected with the said transaction. It is an admitted case of the complainant that the accused returned an amount of `15,000/- on 15.2.2001, for which also, the complainant has not produced any documentary evidence. During the cross examination, the complainant has denied that he is having any business with the father of the accused. Though he had denied the suggestion of the defence that `15,000/- was received at the instance of one Narayan Nair and Gopinathan Nair, he subsequently admitted to have given a receipt written on white paper affixing a revenue stamp worth `1/-. So, from the averments in the complaint and from the evidence of the 8 ## **Crl.A.No.1397 of 2004** complainant, it can be seen that to prove the transaction as claimed by the complainant, there is no documentary evidence or any independent source of evidence. It is in the above backdrops and drawbacks of the case of the complainant, the defence case has to be examined. According to the accused, he has no direct transaction with the complainant and had not borrowed any money from him and no liability is due to the complainant. According to the accused, there was a chitty transaction between his father and the complainant, and connected with that, he had given a blank cheque pertained to his account and it is that cheque misused in the present case. In this juncture it is relevant to note that though the complainant has denied the suggestion of the defence that he received `15,000/- on 15.2.2001 at the instance of one Narayan Nair and Gopinathan Nair, subsequently he admitted the said facts and also admitted to have given a receipt written on white paper affixing a revenue stamp worth `1/- and the amount 9 ## **Crl.A.No.1397 of 2004** was paid by way of cheque and the same was encashed by the complainant. The accused has examined Dws.1 and 2 and produced Ext.D1 receipt duly executed by the complainant. which shows that the complainant has received `15,000/- as per Ext.D1 receipt dated 14.2.2001. It is also relevant to note that from the recital in Ext.D1, the complainant has admitted that a blank cheque bearing No.235420 was with the complainant and the same was agreed to return to the accused. Suffice to say that Ext.P1 cheque bears the same number. The evidence of Dws.1 and 2 shows that they intervened in the chitty transaction between the father of the accused and the complainant, and accused issued blank cheque referred to in Ext.P1. I have physically verified Ext.P1 cheque which shows that, except the signature and the name of the drawer, all other entries in the cheque are made in different hand writing and by using different pen and the colour of the ink is also different. PW1 in his deposition has stated that the cheque 10 ## **Crl.A.No.1397 of 2004** was brought duly filled by the accused and signed in his presence. No explanation is forthcoming from the side of the complainant for bringing a filled up cheque and putting signature in his presence. As per the version of the complainant, the amount of `15,000/- was paid and he received the amount on 15.2.2001 and for the balance amount he received the cheque. If that be so, as correctly pointed out by the learned Magistrate, the cheque in question need not be on a different date, ie., 15.7.2001 and it is unbelievable that when the complainant demanded the amount, the accused issued a post dated cheque. 8. It is in the light of the above discrepancies and contradictions in the case of the complainant and the evidence, the learned Magistrate held that the accused has succeeded in probabilising the case that the cheque in question was issued as a security. Ext.D1 is dated 14.2.2001, whereas Ext.P1 cheque is dated 15.7.2001 and in Ext.D1, a blank cheque number is given and the same is 11 ## **Crl.A.No.1397 of 2004** tallying with the number of Ext.P1 cheque. The above facts are sufficient to hold that Ext.P1 cheque was given as a security as rightly held by the learned Magistrate. In the absence of sufficient pleading and evidence with respect to the transaction claimed by the complainant, and because of the discrepancies and contradictions in the evidence of the complainant, it cannot be said that the complainant has succeeded in proving its case against the accused beyond reasonable doubt. Whereas, by producing Ext.D1 document and the evidence through Dws.1 and 2, the accused has succeeded in showing that Ext.P1 cheque was given as a security. In the decision reported in **Sudhir Kumar Bhalla v. Jagdish Chand & etc. (AIR 2008 (SC) 2407)** , the Honourable Apex Court has held that, “The criminal liabilities under section 138 of the NI Act are attracted only on account of dishonour of the cheques issued in discharge of liability or debt, but not on account of issuance of security cheques.” 12 **Crl.A.No.1397 of 2004** 9. Thus, going by the judgment of the trial court and the evidence and materials on record, it can be seen that the findings of the court below are perfectly on the basis of the evidence and materials on record and there is no perversity in the finding and judgment of the trial court. The Honourable Apex Court in a recent decision reported in **Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430}** has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. Thus on examination of facts and circumstances involved in the case, especially in the light of the dictum laid down in the above decision, according to me, the appellant has miserably failed to show any exceptional circumstance to interfere with the order of 13 ## **Crl.A.No.1397 of 2004** acquittal or to show that the judgment of the trial court is perverse or illegal. Therefore, 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