Thomas John Bosco v. Anzar and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 2ND DAY OF APRIL 2013/12TH CHAITHRA 1935 CRL.A.No. 2515 of 2009 ( ) --------------------------- AGAINST THE ORDER/JUDGMENT IN Crl.L.P..1045/2009 of HIGH COURT OF KERALA DATED 24-11-2009 AGAINST THE ORDER/JUDGMENT IN ST.100/2009 of J.M.F.C.-IV, KOLLAM DATED 09-09-2009 APPELLANT(S): ------------------------ THOMAS JOHN BOSCO, BOSCO ENTERPRISES, MUNDAKKAL WEST, KOLLAM. BY ADVS.SRI.PRATHEESH.P SRI.SIJU KAMALASANAN RESPONDENT(S): ---------------------------- 1. MR. ANZAR, VEGETABLE SHOP, MADHAVA VILAS CURZON NAGAR, FATHIMA, ROAD ALTHARAMMOODU, KOLLAM -13. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.S.M.ALTHAF R2 BY PUBLIC PROSECUTOR SRI.N.SURESH THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02-042013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **V.K.MOHANAN, J. -----------------------------Crl.A.No.2515 of 2009** ## **-----------------------------Dated this the 2[nd] day of April, 2013** ## **JUDGMENT** 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 09.09.2009 in S.T.No. 100 of 2009 of the court of Judicial First Class Magistrate-IV, Kollam, 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 Rs.1,25,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque, which when presented for encashment dishonoured for insufficiency of funds, and the accused has not paid the amount inspite of a statutory notice served on him. During the trial of the case, the power of attorney holder of the complainant was examined as PW1 and produced Ext.P1 to P5 and from the side of the defence though no witnesses is examined. Ext.D1 to D5 documents were marked. Finally the trial court found that evidence of PW1 was not sufficient to prove the 2 Crl.A.No.2515 of 2009 alleged money transaction and issuance of Ext.P1 cheque. Consequent to that the accused found not guilty and accordingly he was acquitted. The above finding and order of acquittal challenged in this appeal. 3. I have heard Sri.Pratheesh.P, counsel for the complainant and Sri.Althaf.S.M, counsel for the respondent. 4. The learned counsel for the appellant vehemently submitted that PW1, the power of attorney holder of the complainant filed an affidavit in lieu of chief examination. The said evidence of PW1 was not properly controverted by the defence. It is the further submission of the learned counsel that in a prosecution for the offence under Section 138 of the N.I.Act, the complainant can prosecute the same through the duly appointed power of attorney holder and therefore, the evidence of PW1 can be acted upon. But the learned Magistrate refused to act upon the evidence PW1, which is illegal and incorrect. On the other hand, the learned counsel for the respondent submitted that PW1 has no direct knowledge about the alleged transaction and therefore, the deposition of PW1 cannot be acted upon and 3 Crl.A.No.2515 of 2009 no evidentiary value can be attached. It is also the submission of the learned counsel that accused has succeeded in making out probable case as to how Ext.P1 cheque happened to be in the possession of the complainant. Thus according to the counsel, the trial court was fully justified in its findings and acquitting the accused. 5. Considering the rival contentions raised by the counsel for the appellant and respondent, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the findings of the court below and the order of acquittal recorded in favour of the accused. 6. According to the complainant, the accused borrowed a sum of Rs.1,25,000/- from the complainant as a loan and towards the discharge of the said liability the accused issued Ext.P1 cheque. Where as the case of the accused is that he had no transaction with the complainant as claimed by him and according to him Ext.P1 cheque is the one, which he handed over to the complainant connected with a chitty transaction between Crl.A.No.2515 of 2009 4 the complainant and the accused. To prove the above defence, the accused had produced Ext.D1 to D5 receipts showing the remittance made by him towards the chitty transaction. The trial court has considered the case under the above factual premise. I had occasion to go though the complaint filed by the complainant when the same read over to me, in which there is no whisper to the effect that at the time of the alleged loan transaction between the complainant and the accused, PW1 was present. A proof affidavit appear to have filed by PW1 in lieu of the chief examination. When PW1 is deputed to prosecute the matter on behalf of the complainant, he is expected to make necessary averments in the proof affidavit. The question is, how far as such claim and the depositions of PW1 by way of proof affidavit can be accepted and acted upon. It is well settled that the power of attorney holder can be depose before the Court on the basis of his personal knowledge and he cannot depose before the Court on behalf of the complainant connected with any facts for which he has no direct knowledge. Since there is no whisper in the complaint that at the time of the alleged loan transaction Crl.A.No.2515 of 2009 5 between the complainant and the accused PW1 was present, what all deposed by PW1 connected with the loan transaction, has to be eschewed. If that be so absolutely there is no evidence to prove the transaction and to fix the liability of the accused connected with the transaction as claimed by the complainant. 7. Beside the above, the learned Magistrate has also found that during the examination of PW1 he was ignorant about the colour of the ink used for writing the endorsement on the cheque. The ignorance of PW1 about the nature of Ext.P1 cheque and the ink used therein and the endorsement contained etc., justified the fact that PW1 was not available, when the alleged transaction taken place between the complainant and the accused. Therefore, according to me the trial court is fully justified in its finding that the evidence of PW1 is not sufficient to prove the alleged money transaction and issuance of cheque as alleged by the complainant. Moreover, the available materials of evidence on record including defence exhibits, properly shows as to how Ext.P1 cheque reached in the hands of the complainant. 8. In the light of the materials recited and on the basis of Crl.A.No.2515 of 2009 6 the evidence referred above which contained in the judgment in question, I am of the view that the trial court is fully justified in its findings and acquitting the accused. Since those findings are based upon the evidence and materials on record, it cannot be said that those findings are perverse and illegal, so as to interfere in an appeal against the order of acquittal. 8. In the decision in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The apex court has held: “In exceptional cases where there are 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.” Therefore, on examination of the facts and circumstances involved in the present case and in the light of the dictum laid down by the Honourable Apex Court, I am of the view that, the 7 Crl.A.No.2515 of 2009 appellant has miserably failed to make out a prima facie case in support of his challenge against the impugned judgment of the trial court. No exceptional cases or compelling reasons are made out to interfere with the order of acquittal recorded by the trial court in favour of the accused. Therefore, I find no merit in this appeal and accordingly, the same is dismissed. **V.K.MOHANAN, JUDGE** AV