V. C. Varghese v. Devadas D.M. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 23RD DAY OF OCTOBER 2013/1ST KARTHIKA, 1935** **CRL.A.No. 630 of 2008 ( ) --------------------------** **AGAINST THE JUDGMENT IN ST 673/2006 of J.M.F.C.-I,KOTTAYAM DATED 11.1.2007** **APPELLANT(S)/COMPLAINANT:** **------------------------** **V.C.VARGHESE, AGED 41 YEARS, S/O.V.C.CHACKO, PROPRIETOR OF HOB-NOB FINANCIERS MUTTAMBALAM.P.O., KOTTAYAM.** **BY ADVS.SRI.S.NIDHEESH** **RESPONDENT(S)/ACCUSED:** **----------------------** **1. DEVADAS.D.M. S/O.N.MURALEEDHARAN, DAS & ASSOCIATES, VADAKKENADA, THIRUNAKKARA P.O. KOTTAYAM-686 001.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.** **BY ADV. SRI.M.P.MADHAVANKUTTY FOR R1 BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.630 of 2008** **------------------------------Dated this the 23[rd] day of October, 2013.** ## **J U D G M E N T** Aggrieved by the judgment dated 11.1.2007 in S.C.No.673/06 of the court of Judicial First Class Magistrate-I, Kottayam, which is a case instituted upon a private complaint preferred by the appellant himself, alleging offence under section 138 of the NI Act, the complainant preferred this appeal as the learned Magistrate by the said judgment, acquitted the accused under section 255(1) of Cr.P.C. 2. According to the appellant/complainant, the 1[st] respondent/accused borrowed a sum of `2 lakhs from him on 1.1.2005 for 1½ months, agreeing to repay the same with 12% interest and towards the discharge of the said liability, the accused issued a cheque dated 15.12.2005 for an amount of `2,03,000/-, which when presented for **Crl.A.No.630 of 2008** 2 encashment, dishonoured as there was no sufficient fund in the account of the accused and the accused failed to repay the amount covered by the dishonoured cheque, in spite of statutory notice served on him and thus according to the appellant/complainant, the accused has committed the offence under section 138 of the NI Act. 3. With the above allegation, the complainant preferred a complaint for the said offence, upon which cognizance was taken for the same and instituted S.T.No.673/06 and during the trial of the case, PW1 was examined and produced Exts.P1 to P12 documents. No evidence whatsoever adduced from the side of the defence. The trial court finally found that the appellant/complainant could not prove the allegation against the respondent/ accused beyond reasonable doubt and accordingly held that the accused is not guilty under section 138 of the NI Act and consequently he is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3 ## **Crl.A.No.630 of 2008** 4. I have heard Adv.Sri.S.Nidheesh, learned counsel for the appellant and Adv.Sri.M.P.Madhavankutty, learned counsel for the 1[st] respondent. 5. Learned counsel for the appellant vehemently submitted that the appellant/complainant has succeeded in proving the transaction and the execution and issuance of Ext.P1 cheque, but the trial court went wrong in holding otherwise and therefore in the light of the decisions of this Court in **Bhaskaran Nair V. Abdul Kareem (2006(4) KLT 48)** and in **Devan V. Krishna Menon (2010(2) KLT 397)** , the judgment of the trial court is liable to be interfered with. In support of his contention, the learned counsel has pointed out that, even according to the respondent/accused, the cheque in question was handed over by him and he had admitted his signature in Ext.P1 cheque and therefore the statutory presumption under section 139 of the NI Act is available in favour of the appellant/complainant and the respondent/accused has miserably failed to rebut such presumption, since he has **Crl.A.No.630 of 2008** 4 not produced any evidence. 6. On the other hand, learned counsel for the respondent submitted that no evidence is produced by the appellant/complainant to prove the transaction, in spite of the fact that he was given ample opportunities for the same. So, according to the learned counsel, the findings of the court below are reasonable and no interference is warranted. 7. I have carefully considered the submissions made by the learned counsel for the appellant as well as the respondent and I have perused the materials and evidence on record. 8. In view of the rival contentions advanced and in the light of the evidence and materials on record, the question to be considered is whether the trial court is correct and justified in its finding and whether the appellant has succeeded in showing that the findings of the court below are perverse, warranting interference of this Court in appeal. Admittedly, the complainant is a money **Crl.A.No.630 of 2008** 5 lender who got licence for such business. But suffice to say, to prove the transaction, no evidence, other than the interested testimony of PW1-the complainant himself, is produced. It is true, during the cross examination of PW1, he has stated that, “പ�ത�യ� എന�ക� നല� �ര�ച�മ�ണ���ര�ന�. പ�ത� നനരന� phone വ�ള�ച� 2 ലക� ര�� 1½ മ�സന�ക� loan എനന�ട� നച�ദ�ച�ര�ന�. 1-11-05-ല തര�യമന� ഞ�ന �റഞ�ര�ന�. അതന�സര�ച� വന�. �ണ� യ(�ട���. അന� തയന 1½ മ�സയ� 12% �ല�ശ ഉളയ,യട 20,3000 ര����യട Canara Bank, Temple Road, Kottayam Branch-യല യചക� തര�(��� യചയത�.” In the decision relied on by the learned counsel for the appellant, which reported in **2010(2) KLT 397** , this Court has held that, “Once the signature, execution and handing over of the cheque is satisfactorily proved, presumption u/s.139 would come into play and remain there until the accused discharge the burden by inferior standard of preponderance of possibilities and probabilities as applicable in civil law.” In the light of the contention of the **Crl.A.No.630 of 2008** 6 learned counsel, the further question to be considered is whether the appellant has succeeded in proving the transaction and execution of the cheque. As I indicated earlier, absolutely no documentary evidence produced by the appellant/complainant to prove the transaction and the execution and issuance of the cheque. In the complaint, particularly in paragraph 2, the averments are to the effect that, “നമല നമര ന(സ�ല പ�ത�, എന�ല ന�ന�� 1/11/2005 ത6�ത� 2,00,000/- (രണ� ലക�) ര��, 15/12/2005 ത6�ത� 12% �ല�ശ സഹ�ത� 2,03,000/ര�� ത�ര�യ( നല(�യമന (ര�റ�ന പ�(�ര� വ�ങ���ര�നത��, ട� (ട� വ�ങ�� ത�( ത�ര�യ( തര�നത�നലക��� പ�ത� എന�ക� 15/12/2005 ത6�ത� വച 2,03,000/(രണ� ലക�� മ�വ���ര�) ര����യട, (�നറ� ബ�ങ� ന(�ട�� യടമ�ള നറ�ഡ പബ�ഞ�യC 540196 നമര യചക� നല(���ടGളത�ണ.” In the chief examination also, the statements therein are fully in support of the above quoted averments that contained in the complaint. The details stated by the appellant/complainant, when he was cross examined as PW1, which I quoted earlier, will not find a place either in **Crl.A.No.630 of 2008** 7 the complaint or in the chief examination. As per the version of PW1, during his cross examination, the cheque in question was given simultaneously. Further, the above evidence of the appellant/complainant shows that, there was a prior agreement before giving the amount. But as to the date on which the demand made by the respondent/ accused and the terms and conditions in which the appellant/complainant had agreed to pay the demanded amount etc., there is no pleading either in the complaint or in the chief affidavit filed in lieu of chief examination. Even at the time of cross examination also, those details are not deposed. So, what all stated by PW1 during the cross examination are made only to make up his lacuna regarding the pleading in the complaint and to circumvent the above adverse situation. Suffice to say, no documentary evidence is produced to prove the transaction and the payment of the amount, though the appellant/complainant himself claimed that he is engaged in money lending business. So, the appellant/complainant has miserably failed to prove the **Crl.A.No.630 of 2008** 8 transaction. 9. Secondly, the question to be considered is whether the appellant/complainant has succeeded in proving the execution of the cheque. In order to answer the above question, the learned counsel submitted that the cheque in question pertained to the account of the respondent/ accused and the same is produced by the appellant/ complainant from his possession. According to me, considering the facts and circumstances of the case, the said fact is not sufficient to prove the execution. As I indicated earlier, the facts related to the transaction and execution of the cheque were brought only during his cross examination and had not stated either in the complaint or in the proof affidavit. In the present case, it is relevant to note that the respondent/accused has got a case as to how Ext.P1 cheque reached in the hands of appellant/ complainant. According to him, when one Pradeep Punnoose availed a loan from the appellant/complainant, the accused gave the cheque in question as a security for **Crl.A.No.630 of 2008** 9 the said loan. As correctly contended by the learned counsel for the appellant, the said fact is not proved by producing evidence, other than the claim of the respondent/ accused himself. According to me, the respondent/accused has given a version as to how Ext.P1 cheque reached in the hands of the appellant/complainant. In the present case, according to me, the burden of the respondent/accused in rebutting the presumption under section 139 of the NI Act arose only if, the complainant has succeeded in establishing the transaction, execution and issuance of the cheque, as held in the decision **2010(2) KLT 397** and I have already found that the appellant/complainant has failed to discharge the above duty towards attracting section 139 of the NI Act in favour of him. Therefore, in the given facts and circumstances of the case, no duty is cast upon the respondent/accused to rebut the presumption. In the decision in **Krishna Janardhan Bhat Vs. Dattatraya Hegde [2008(1) KLT 425 (SC)]** it has held that, “An accused for discharging burden of proof placed upon him **Crl.A.No.630 of 2008** 10 under a statute need not examine himself but he may discharge burden on basis of materials already brought on record.” In the light of the foregone discussion, it has already brought on record to the effect that the appellant/ complainant has miserably failed to prove the transaction, execution and issuance of the cheque in question. In the very same decision, particularly in paragraph 26, the Apex Court has held that, “In a case of this nature whether the chances of false inspection cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.” 10. It is further relevant to note that in a recent decision in **Mokkiah & Anr. Vs. State, Rep. by the Inspector of Police, Tamil Nadu [2013 (1) Supreme** **88],** has held that, “8. In a recent decision in Murugesan & Ors. vs. State Through Inspector of Police, 2012 (10) SCC 383, one of us Ranjan Gogoi, J. elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the **Crl.A.No.630 of 2008** 11 Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup vs. King Emperor, AIR 1934 PC 227 (2) and series of subsequent pronouncements in para 21 summarized various principles as found in para 42 of Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 as under: ## 21. xxxxxxxxxxxxxx “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and re-consider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under **Crl.A.No.630 of 2008** 12 the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” (emphasis supplied). On a consideration of the facts and circumstances of the case, especially in the light of the evidence and materials on record and in view of the decisions cited supra, according to me, the appellant/complainant has miserably failed to bring out any compelling circumstance or substantial reason to interfere with the order of acquittal recorded by the trial court and thereby to disturb the double presumption of innocence secured in favour of the respondent/accused. Similarly, the appellant/complainant has failed to show that the findings of the court below and the reasons assigned are perverse or illegal, so as to interfere with the same, while exercising the appellate jurisdiction of this Court. 13 ## **Crl.A.No.630 of 2008** In the result, I find no merit in this appeal and accordingly the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge