T.J. Joseph v. Jose Nambudakam and Bharatha Rajan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **CRL.A.No.1229 OF 2005** **AGAINST THE JUDGMENT IN CC 476/2001 DATED 18-03-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, MANANTHAVADY** **AGAINST THE ORDER IN Crl.L.P. 387/2005 DATED 01-07-2005 OF HIGH COURT OF KERALA** ## **APPELLANT/COMPLAINANT IN C.C.476/01 ON THE FILE:** **T.J.JOSEPH S/O JOSEPH, THAYYIL HOUSE, PALA COOLI, MANANTHAVADI.** **BY ADV. SRI.SATISH MURTI ADV. UMMUL FIDA** ## **RESPONDENTS/ACCUSED NOS. 1 & 2 IN C.C.476/01 ON THE FILE:** - **1 JOSE NAMBUDAKAM S/O WARKEY,AMPAYATHODE KELAKAM, KOTTIYOOR, PERAVOOR VILLAGE, KANNUR.** - **2 BHARATHA RAJAN, S/O. NARAYANAN PALLIYA PARAMBIL,AMPAYATHODE, KOTTIYOOR.** - **3 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 & R2 BY ADVS. SMT.CELINE JOSEPH SRI.GEORGE MATHEWS SRI.PRANOY KOTTARAM R3 BY SRI.B.JAYASURYA, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2020, THE COURT ON 17-06-2020 DELIVERED THE FOLLOWING:** CRL.A.No.1229 OF 2005 2 ## **JUDGMENT** ## **Dated this the 17th day of June 2020** The above appeal is filed against the acquittal order passed by the Judicial First Class Magistrate Court - II, Mananthavady in C.C. No. 476/2001. It is filed by the appellant herein as a private complaint against respondent Nos. 1 and 2 for prosecuting them under Section 420 of the Indian Penal Code. (hereinafter the parties are mentioned by their rank before the trial court.) 2. The complainant's case can be narrated like this, the brother of the complainant is residing near to the house of the accused at Ambayathode, Kottiyoor, in Kannur District. On 10.12.99, accused had borrowed Rs. 40,000/- from the complainant. It was agreed to re-pay within 15 days. When the complainant, demanded the amount back, the accused requested him to come at Kottiyoor. Accordingly, on 28.12.99, the complainant and his brother, went to the house of the accused. At that time, the accused had issued a cheque for Rs. 40,000/- drawn on North Malabar Gramin Bank, Neendunoki Branch dated 28.12.99. When the Cheque was presented for CRL.A.No.1229 OF 2005 3 collection, it was returned for the reason "drawers signature differs from specimen filed in this office". On enquiry, he came to know that, the cheque does not belong to the account of the accused, and it was a cheque issued in the account of one Baratha Rajan, S/o. Narayanan, Ambayathode. The complainant had issued a notice to the accused on 03.01.00, and it was duly received by the accused on 4.1.00. But, he has not discharged the debt, nor issued any reply notice. The accused has issued the Cheque with the dishonest intention of cheating the complainant. Thereby the accused has committed an offence punishable u/s. 420 of IPC. This is the case in a nutshell in the complaint. 3. To substantiate the case, five witnesses were examined on the side of the complainant. Ext.P1 to P9 are exhibits. No evidence was adduced by the defence. Ongoing through the evidence and documents, the trial court found that, the accused has not committed the offence alleged and accordingly, he is acquitted. Aggrieved by the acquittal order, this appeal is filed. 4. Heard Adv. Ummul Fida, on behalf of the counsel who is appearing in the appeal for the appellant and Adv. Sri. CRL.A.No.1229 OF 2005 4 Pranoy Kottaram, learned counsel for the 1[st] and 2[nd] respondents/accused. 5. Learned counsel for the appellant submitted that, the evidence adduced by the complainant would constitute an offence under Section 420 of the Indian Penal Code (for short the 'IPC'). The trial court has not considered the entire evidence and documents. 6. Learned counsel for the accused submitted that, no offence under Section 420 IPC is made out. The counsel also submitted that, since the present appeal is against the acquittal, this Court may not interfere with the acquittal order in the light of the judgment of the Supreme Court reported in **Jai Singh and Others v. State of Karnataka [2007 KHC 3769]** . 7. After hearing both sides, the point to be decided is whether an offence under Section 420 of IPC is made out in this case. 8. The trial court considered all the available evidence and found that, no offence under Section 420 of IPC is made out. According to the complainant, Ext.P1 cheque was issued by the first accused to him. To prove that aspect, he examined PWs 1, 2 and 5. PW2 is none other than his brother. In the CRL.A.No.1229 OF 2005 5 complaint as well as before the Court, the case of the complainant was that, at the time of borrowal of money and at the time of issuance of cheque, PW2 was present. He has witnessed the whole incident. Both PW1 and PW2 deposed before the Court that the accused borrowed Rs. 40,000/- from PW1 and in discharge of that liability, accused had issued Ext. P1 cheque. 9. The defence case is that, the first accused has neither borrowed any money from the complainant nor issued Ext.P1 cheque. He has no connection with Ext.P1 cheque and it was not signed by him. His case is that, he had joined the chitty conducted by PW2, Mr. Mathew, the brother of PW1. At that time, they had obtained several papers, signed by the accused. Though he had repaid the entire amount in the chitty transaction, out of grudge, he has filed false complaint by using somebody's cheque. According to the second accused, Ext.P1 cheque belongs to him, but it was not signed by him. He had also joined in the chitty conducted by PW2 and Ext.P1 cheque was issued as a security in that transaction. He had issued Ext.P1 cheque without putting even his signature. He has no connection with the first accused and the complainant, that is CRL.A.No.1229 OF 2005 6 his contention. 10. Since the accused dispute the signature in Ext.P1 cheque, expert opinion was obtained. PW5 is the expert. He deposed that, there were similarities as well as dissimilarities in the writings in the cheque. 11. After analysing the entire evidence, the trial Court found that the accused has not committed the offence. The relevant portion of the judgment of the Judicial First Class Magistrate Court - II, Mananthavadi is extracted hereunder:- "16. The most interesting thing of this case is that, the complainant had examined the PW4, the second accused. After examination of PW4, he was made as a second accused in this case. PW4, has deposed before the Court, that Ext.P1 cheque belongs to him. But, it was not signed by him. PW2, the brother of the PW1, had conducted a chitty and he had joined in the chitty. At that time, he had issued the Ext.P1 cheque to the PW2 as a security, even without putting his signature. He has no connection with the complainant or the first accused. This witness was not declared hostile by the complainant. So, the above evidence will go to show that, PW2, who is residing near to the house of the accused had conducted a chitty. The accused A2 had joined in the chitty and the Ext.P1 was issued in that transaction as a security, even without putting his signature. This evidence of PW4, supports the defence case. 17. The PW1 has deposed before the Court that, he came to know that, the Ext.P1 cheque belongs to the second accused, and the accused together cheated him, only when CRL.A.No.1229 OF 2005 7 PW3, the Bank Manager was examined in this Court. This evidence is totally false, because, in the complaint itself, he has stated that, the Cheque belongs to the second accused and the first accused has issued the same to the complainant by putting his signature, in order to cheat him. Moreover, this second accused was sited as a witness in the complaint itself, and his whole address was mentioned. When he was cross-examined by the learned defence counsel, regarding this aspect, he was not having any explanation. So, it can be seen that, the second accused is impleaded in this case, by the complainant, only as an afterthought. In the complaint, itself, he had mentioned that, the cheque belongs to the second accused. Then it is doubtful why the second accused was not made as an accused in the complaint at the beginning itself. Probably, he was made as second accused, since he had deposed before the Court that, the cheque was issued to the PW2, the brother of the complainant in the chitty transaction. So, I am of the opinion that, the defence case is more probable in this case. I am constrained to hold that, the complainant has failed to prove that the accused have committed the offence punishable u/s. 420 of IPC and hence they are found not guilty for the above offence." 12. I see no reason to interfere with the above findings of the trial court. In an appeal against acquittal, the jurisdiction of this Court is very limited. In **Jai Singh and Others v. State of Karnataka [2007 KHC 3769]** , the hon'ble Supreme Court observed like this:- "8. We are, therefore, of the opinion that the interference by the High Court in the judgment of the Trial Court was not CRL.A.No.1229 OF 2005 8 called for as the view taken by it was justified on the evidence. We thus have no option but to allow the appeal and acquit the accused." 13. According to me, there is nothing to interfere with the view taken by the trial court. It is a settled position that, even if another view is possible, this Court cannot interfere against an acquittal order in an appeal under Section 378 of Code of Criminal Procedure. Considering the entire facts and circumstances of this case, I think there is nothing to interfere with the acquittal order passed by the trial court. Hence this Criminal Appeal is dismissed, confirming the judgment dated 18.03.2005 of the Judicial First Class Magistrate Court - II, Mananthavadi. sd/- **P.V.KUNHIKRISHNAN JUDGE** **DCS**