Vinod Kumar v. State of Kerala and Denni

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939** ## **Crl.L.P..No. 77 of 2017 ()** **--------------------------CC. NO.402/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, SOUTH PARAVUR, KOLLAM.** **......** ## **APPELLANT/COMPLAINANT IN CC NO.402/2008:** **----------------------------------------------------------------------** **VINOD KUMAR, S/O. MURALEEDHARAN PILLAI, KOCHUPANAMOOTTIL, KONGAL, PARAVOOR, KOLLAM.** ## **BY ADV. SRI.M.RAJESH.** ## **RESPONDENT/ACCUSED IN CC NO.402/2008:** **-------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-682 031.** **2. DENNI, S/O. SUDEVAN, KOIPUZHAVILA VEEDU, DHAVALAKKUZHI, MAYYANADU P.O., KOLLAM, PIN- 691 001.** ## **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 28-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## ALEXANDER THOMAS, J. ================== Crl.L.P.No. 77 of 2017 ================== Dated this the 28[th] day of March, 2017 O R D E R The petitioner herein seeks leave of this Court in terms of Sec.378 (4) of the Cr.P.C. for filing Criminal Appeal so as to challenge the impugned judgment dated 27.12.2016 rendered by the Judicial First Class Magistrate's Court, South Paravoor, Kollam, whereby the accused in C.C.No.402/2008 was acquitted. The appellant herein was the complainant in the abovesaid C.C.No.402/2008, in which the 2[nd] respondent herein was arrayed as accused for offence under Sec.138 of the Negotiable Instruments Act. 2. The case of the complainant is that on 2.3.2008, the accused had come to his house and had borrowed an amount of Rs.6 lakhs and that the accused had given him the instant cheque dated 3.3.2008 in question from his account for Rs.6 lakhs and that the cheque was singed in his presence. That the accused had promised the complainant that on presentation of the said cheque any day on or after 3.3.2008, the cheque could be encahsed. That the complainant had presented the said cheque on 10.4.2008, which resulted in dishonour, and upon receipt of memo of intimation in that regard, the appellant had sent the requisite statutory Crl.L.P.77/17 - : 2 :- demand notice calling upon the accused to make the payment of the amount covered by the said cheque within 15 days, by sending registered notice in that regard. That the accused has received the said registered notice on 6.5.2008 and reply dated 19.5.2008 was received by the complainant. Since no payment was received from the accused, the instant complaint was filed, which resulted in the trial. 3. During the trial, the complainant had examined himself as P.W-1 and the mother of the complainant was examined as P.W-2. The defence had examined DW-1 (mother of the accused) and DW-2 (Police Officer in the rank of S.I. of Police) and had marked marked Exts.D-1 to D-7 documents. The trial court has rendered the impugned judgment on 27.12.2016 acquitting the accused. 4. Even in the reply notice dated 19.5.2008 sent by the accused, the case set up by him was that the complainant was absolutely stranger to him and that there was no transaction with him at any point of time and that the mother of the accused had some money transaction with one Ani and that the said Anii had obtained one singed blank cheque leaf each from the father and mother of the accused and had also obtained some signed blank papers from them in 2005. Later on 15.3.2008, the said Ani had informed the mother of the accused that he owes an amount of Rs.40,000/- to one Sri.Ramachandran Nair, a Police officer in the rank of Deputy Superintendent of Police and that the mother of the accused Crl.L.P.77/17 - : 3 :- should come along with Ani before Sri.Ramachandran Nair, who was the Deputy Superintendent of Police and that Ani demanded that the mother of the accused should promise the said Police officer that the amount of Rs.47,000/- indebted by her to Ani shall be paid by her directly to the said Police officer as Ani owes an amount of Rs. 40,000/- to that Police officer. That during that time, the mother of the accused was constrained to give a blank signed cheque of the accused, to the said Police officer and that the said Police officer had conspired with Ani for utilising the abovesaid cheque for filing this complaint through the present complainant, etc. 5. In the evidence tendered by the complainant as P.W-1, his case is that the accused is the friend of his friend and that the amount was paid at the request of the accused that he wants the said amount for payment to some persons for regularising his job at Kerala Metals & Minerals Ltd. That he was engaged in share brokering by canvassing clients and that he has got income by means of commission, etc. P.W-1 has denied about the petition filed by the mother of the accused before the Superintendent of Police, Kollam. That on 2 or 3 days prior to the borrowal, the complainant had informed the accused that he would lend the money to the accused and so the accused had approached him on his residence and that the money was handed over, etc. 6. The trial court on a meticulous appreciation of evidence Crl.L.P.77/17 - : 4 :- found that the case of the appellant is not believable or credible and that the accused has set up a probable version in aid of her defence due to the following aspects: (a) Even according to P.W-1, the amount was borrowed in 2.3.2008 for the requirements of the accused. But it is clearly stated in the complaint and in the demand notice that it was assured that the cheque has been honoured on any day on or after 3.3.2008. Therefore, the trial court found it highly improbable to believe that the accused could have promised to return the amount at the very next day after borrowing a huge sum of Rs. 6 lakhs. (b) In spite of specific case of the complainant that the accused is a friend of his friend, Sri.Pradeep, P.W-1 was not even able to disclose the house name of the said Pradeep. Therefore, the trial court held that it is highly improbable that the complainant would lend a huge amount of Rs.6 lakhs to a person happens to be his friend's friend, when he is not even able to convincingly impress the court about even the details of his so-called close friend. (c) The main case projected by the complainant was that the amount was borrowed on 2.3.2008 by the accused in order to get the job of the accused as permanent. The specific question during cross examination that the accused permanently employed in 2005, the petitioner had no answer to that. The defence could convincingly prove Crl.L.P.77/17 - : 5 :- through Ext.DW-7 that the accused has been a permanent employee of his company since 22.5.2007 onwards. Therefore, this is also a clear circumstance, which would seriously improbabilise the version very strongly given by the complainant that the money was sought for by the accused in March, 2008 in order to get confirmation of his job, when in fact he has already been confirmed in his employment since May, 2007 onwards. (d) The trial court also found serious contradictions in the case set up by the complainant regarding the source of his funds to give such a huge amount of Rs.6 lakhs to the accused. P.W-1 has stated that his source was from the retirement benefits of his mother, who was a teacher, and also from the sale proceeds of the house of the complainant and that Rs.3 lakhs available with his uncle was also utilised, etc. Further that he had drawn Rs.1 lakh from the bank. But no document was produced in that regard. No convincing evidence or materials are given to show that he had access to the funds of his uncle. The complainant has not produced any documents to prove the source of his income. The mother of the accused, when examined as P.W-2, had stated that the complainant was getting Rs.10,000/- per month and that she had received Rs. 1.5 lakhs for the sale of the property and about Rs. 2.67 lakhs was received as retirement benefits. But P.W-2 had also deposed that the cash was kept by her brother. It was also come out in evidence Crl.L.P.77/17 - : 6 :- that P.W-2 (mother of the complainant) had retried 5 years back. On an overall evaluation of the evidentiary materials on record, the trial court found it is not believable that P.W-2 would have paid the huge amount of Rs.6 lakhs to the accused, by using almost entire pensionary benefits received by his mother, just for the sake of advancing money to the accused, who happened to be only his friend's friend. (e) Both P.W-1 and P.W-2 did not have any convincing answers to the question put during cross examination with the entries in Ext.P-1 cheque are not that of the accused. P.W.2 did not have any reply to the specific suggestion put by the defence that the entries in Ext.P-1 cheque have been forged by the complainant. It is to be noted that P.W-2 has deposed that she had seen the money transaction as well as the handing over of the cheque. P.W-2 also did not have any answers to the specific suggestion that the accused was a permanent employee of his company long prior to the alleged borrowal. These are all relevant circumstances, which had been taken into account by the trial court to doubt the veracity of the versions of P.W-1 and P.W-2. (f) Even though Ext.D-2 complaint was filed by the accused on 19.3.2008 before the Police authorities, even before the presentation of the dishonoured cheque on 28.5.2008, and in spite of the registration of Ext.D-5 FIR dated 28.5.2008 (in which the complainant herein and Ani are accused 1 and 2 on the basis of the complaint given by the mother of Crl.L.P.77/17 - : 7 :- the accused herein), there is no mention about those aspects in the present complaint, which was subsequently filed on 6.6.2008. (g) In Ext.D-1 reply notice, the specific stand of the accused was that the cheque was handed over under coercion in Police Station. Nothing has been stated in the complaint filed subsequently, about the said version of the accused. The trial court also held that Ext.D-2 complaint on 19.3.2008 (filed by the mother of the accused regarding the misuse of the above cheque) was much prior to the presentation of the cheque on 28.5.2008 will highly probabilise the case set up by the accused. DW-2 Sub Inspector of Police had deposed that his investigation has revealed that the cheque of the accused was obtained by Ani and handed over to the complainant. Considering the defence set up by the accused in Ext.D-1 reply notice and registration of Ext.D-5 FIR on 28.5.2008, even before the filing of the complaint on 6.6.2008, the non-furnishing of the details of the complaint about the transaction were all held to be probabilising the defence version and seriously affect the credibility and believability of the prosecution case. 7. From all these aspects, the trial court held that the defence could successfully rebut the statutory presumption available under Sec.138 and Sec.118 of the N.I. Act and that since the presumption has disappeared, there was a strong burden on the complainant to prove their case and that since the complainant has not discharged his burden, Crl.L.P.77/17 - : 8 :- the accused is entitled for the benefit of acquittal. 8. The abovesaid reasonings and factual findings made by the trial court cannot be said to be perverse or unreasonable. Merely because another view is possible, is no ground to interfere with the considered verdict of acquittal. 9. In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in (2012) 5 SCC 789 = 2012(4) Supreme 72, the Apex Court has held as follows:- “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.” Further, in the case Pudhu Raja and another Vs. State reported in (2012) 11 SCC 196 = (2013) 1 SCC (Cri) 430 , the Apex Court 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_ ”. 10. On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion that even if appeal is entertained, there is very little scope of any interference Crl.L.P.77/17 - : 9 :- with the conclusive findings of the court below, which led to the acquittal in the impugned judgment. Accordingly, this Court is constrained to hold that the Leave Petition is bereft of any merit and accordingly, the same is dismissed. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge