V.V. Manmadhan v. Mayaja and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **THURSDAY, THE 10TH DAY OF OCTOBER 2013/18TH ASWINA, 1935** **CRL.A.No. 2366 of 2010 ( ) ---------------------------** **AGAINST THE JUDGMENT IN S.T.No.1927/2005 of the COURT OF JFCM, MANNARKKAD** **AGAINST THE JUDGMENT IN CRA 355/2009 of I ADDL.SESSIONS JUDGE,PALAKKAD DATED 20-08-2010** **APPELLANT(S)/RESPONDENT/COMPLAINANT: -------------------------------------** **V.V.MANMADHAN,** **S/O.ANCHUBHAVANIL VASUDEVAN, NALLIPPATHY, AGALI AMSOM AGALI.P.O., MANNARKKAD TALUK, PALAKKAD DISTRICT.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON** **RESPONDENT(S)/ACCUSED & STATE:** **-------------------------------** **1. MAYAJA, W/O.NANU, CHAITHANYA HOUSE, P.O.AGALI MALE SAMBARKKODE (NOOREKRA), SHOLAYOOR PANCHAYATH 679 123, MANNARKKAD TALUK, PALAKKAD DISTRICT.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-31.** **BY ADV. SRI.JAIJI ITTEN FOR R1 BY PUBLIC PROSECUTOR ADV.SMT.M.T.SHEEBA FOR R2** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.2366 of 2010 ------------------------------Dated this the 10[th] day of October, 2013.** ## **J U D G M E N T** Challenging the judgment dated 20.8.2010 of the court of Additional Sessions Judge-I, Palakkad, in Crl.A.No.355/09, the 1[st] respondent therein, who is the complainant in a prosecution for the offence punishable under section 138 of the NI Act, preferred the above appeal as the learned Sessions Judge by the impugned judgment reversed the order of conviction recorded by the trial court in favour of the complainant and against the accused and acquitted the accused. 2. The case of the complainant is that the accused borrowed an amount of `1,50,000/- from him on 10.3.2005 and towards the discharge of the said due, the accused issued a cheque dated 25.7.2005 for a sum of `1,50,000/-, which when presented for encashment, dishonoured due to **Crl.A.No.2366 of 2010** 2 insufficiency of fund in the account maintained by the accused and the accused has not repaid the amount covered by the dishonoured cheque in spite of a statutory notice served on her and therefore according to the complainant, the accused has committed the offences punishable under section 138 of the NI Act. 3. With the above allegation, a complaint has been filed before the court of Judicial First Class MagistrateMannarkkad, upon which cognizance was taken for the said offence and instituted S.T.No.1927/2005 and during the trial of the case, the complainant himself was got examined as PW1 and produced Exts.P1 to P4. Though no witness was examined from the side of the defence, Ext.D1 was produced and marked. The trial court finally found that the complainant has succeeded in establishing his case against the accused and the presumption under section 139 of the NI Act is available in favour of the complainant, but the accused has not succeeded in rebutting the presumption and thus found that the accused is guilty of the offence **Crl.A.No.2366 of 2010** 3 punishable under section 138 of the NI Act and convicted her thereunder. On such conviction, she was sentenced to undergo simple imprisonment for 3 months and to pay an amount of `1,50,000/- as compensation under section 357 (3) of Cr.P.C. to the complainant and the default sentence was fixed as one month simple imprisonment. 4. Aggrieved by the above finding, order of conviction and sentence, the accused therein preferred Crl.A.No.355/09 before the court of Sessions, Palakkad Division, and as per the impugned judgment, the learned Judge of the court of Additional Sessions court, allowed the appeal setting aside the judgment of the trial court and acquitted the appellant therein, holding that the transaction covered by Ext.P1 cheque, appears to be not genuine and bonafide and there are suspicious circumstances surrounding the transaction covered by Ext.P1 and the 1[st] respondent/complainant therein has not succeeded to remove the suspicion by satisfactory explanation. It is the above finding and order of acquittal recorded by the lower **Crl.A.No.2366 of 2010** 4 appellate court, that are challenged in this appeal at the instance of the complainant. 5. Heard Adv.Sri.K.M.Sathianatha Menon learned counsel for the appellant and Adv.Sri.Jaiji Itten for the 1[st] respondent. 6. Learned counsel for the appellant after taking me through Ext.P4 reply notice and the chief affidavit as well as the cross examination of PW1, has submitted that the stand taken by the 1[st] respondent/accused in the reply to the statutory notice is to the effect that the cheque in question is the one which was taken from the house of the 1[st] respondent/accused as the appellant/complainant, being a neighbour, has got free access to her house and the 1[st] respondent/accused has also denied her signature in Ext.P1 cheque and in toto, the execution and issuance are denied. But during the trial, the defence taken by the 1[st] respondent/accused is to the effect that the cheque in question was given after its due execution, that too after putting signature and issued as a security on behalf of her **Crl.A.No.2366 of 2010** 5 husband who was having chitty transaction with the appellant/complainant. Thus, according to the learned counsel, the 1[st] respondent/accused in a prosecution for the offence under section 138 of the NI Act, cannot take such a defence, contrary to the stand taken in the reply notice. It is also the contention of the learned counsel that the 1[st] respondent/accused has not succeeded in proving the defence taken by her during the trial. On the other hand, according to the learned counsel, as rightly held by the trial court, the appellant/complainant is entitled to get the presumption under section 139 of the NI Act, particularly when the 1[st] respondent/accused has not discharged the burden of rebutting the presumption. But the lower appellate court overlooking the above facts and circumstances and the legal position, acquitted the 1[st] respondent/accused, which is legally and factually unsustainable. 7. Per contra, learned counsel for the 1[st] respondent strenuously submitted that the findings of the lower **Crl.A.No.2366 of 2010** 6 appellate court are reasonable and plausible in the light of the evidence and materials on record and therefore there is no perversity in the findings of the court below so as to interfere, while exercising the appellate jurisdiction of this Court, with the order of acquittal recorded in favour of the accused. According to the learned counsel for the 1[st] respondent, the defence has succeeded in making out a probable case by producing Ext.D1, in rebutting the presumption under section 139 of the NI Act. Consequently, the lower appellate court doubted the circumstances under which Ext.P1 cheque reached in the hands of the complainant. Thus, according to the learned counsel for the 1[st] respondent, no interference is warranted. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the 1[st] respondent and I have perused the evidence and materials available on record. 9. In the light of the rival contentions advanced by both the counsel for the appellant and the 1[st] respondent, **Crl.A.No.2366 of 2010** 7 and in view of the evidence and materials on record, the question to be considered is whether the appellant has succeeded in making out any illegality or perversity in the findings of the lower appellate court and its judgment and to interfere with the order of acquittal recorded by the learned Judge of the lower appellate court. 10. The specific case of the complainant is that on demand of `1,50,000/- by the 1[st] respondent/accused, for clearing her loan taken from the Canara Bank, the complainant by obtaining a loan from a Co-operative Society, raised sufficient fund and thus a sum of `1,50,000/was given to the 1[st] respondent/accused on 10.3.2005. Except the claim of PW1, there is no independent evidence produced to prove the above transaction. So also, no documentary evidence is adduced for the same. Suffice to say, as to the exact date of demand for the hand loan, there is no evidence and there is no specific pleading in the complaint about the date. There is no document to show that the appellant/complainant has applied for loan and **Crl.A.No.2366 of 2010** 8 loan was sanctioned by any financial institution etc. are not stand proved. So, regarding the alleged transaction of availing hand loan of `1,50,000/- by the 1[st] respondent/ accused, absolutely there is no satisfactory and independent evidence. 11. It is true, Ext.P1 cheque contained the signature of 1[st] respondent/accused, which was produced by the appellant/complainant from his possession before the trial court. It is also true that, when Ext.P4 reply was given, the 1[st] respondent/accused has denied the signature contained in Ext.P1 and the stand taken in Ext.P4 reply was that she has not put such signature in Ext.P1 and the explanation offered through Ext.P4 reply was to the effect that the cheque in question was taken by the appellant/complainant from the 1[st] respondent's house, since the appellant/ complainant has got free access to the said house being her neighbour. It is on the basis of the above stand of the 1[st] respondent/accused in her reply notice, the learned counsel for the appellant/complainant submitted that the 1[st] **Crl.A.No.2366 of 2010** 9 respondent/accused cannot take a different stand during the trial. I am unable to sustain the above contention of the learned counsel for the appellant, who failed to cite any authority in support of his contention. Though the prosecution is for an offence under section 138 of the NI Act, essentially it is a criminal trial. Therefore, the 1[st] respondent/accused can take any divergent and conflicting stand based upon the facts and circumstances and evidence involved in the case and such a right cannot be curtailed by accepting the contention of the learned counsel for the appellant/complainant. Ultimately, it is upto the court to appreciate the evidence and the stand taken by the parties to the dispute and come into correct and legal conclusion as to whether the prosecution has succeeded in establishing the allegation against the appellant/complainant. 12. In the present case, during the cross examination, it is brought on record to the effect that the complainant was conducting a chitty and the husband of the 1[st] respondent/accused was one of the subscribers of the **Crl.A.No.2366 of 2010** 10 chitty. It is also proved that connected with such a transaction, a complaint has already been filed by the husband of the 1[st] respondent/accused before the police station as evident by Ext.D1 document. Suffice to say, in the complaint, the complainant has not admitted about his chitty business and he had denied the same, in spite of the fact that in Ext.P4 reply it is mentioned about the illegal chitty conducted by the complainant. In the chief affidavit also, which was filed by the complainant who was examined as PW1, he has not admitted about the conduct of chitty business, but denied the same. But during the cross examination, as I indicated earlier, he was constrained to admit about his chitty business and the complaint filed by the husband of the 1[st] respondent/accused against him because of the contemporary document, ie., Ext.D1. During the cross examination, he had deposed that, “മ�മ� ഞ�ന ക�റ� നടത�യ�ര�ന�. അത�ന� പണമ�ണ ട�യ�ന�ല ന�ന�� ക�ട�ന ഉണ�യ�ര�നത. പപത� മറ�പട� നന�ട"സ അയച�ര�ന�. പപത�യ�നട ഒപ�ട blank cheque security ആയ� എന�ക� തന�ട�ല+.” He continued to **Crl.A.No.2366 of 2010** 11 depose that, “ച�ട�യ�ല മ�സത�ല 2,000/- ര.പന/ച� പപത�യ�നട ഭരത�വ അടകണ�. ച�ട� പണ� നടനത�ണ. 41500/- ര.പ ക�ട�ന പ�ന�നല ഞ�ന ക�ല� . പപത�യ�നട ഭരത�/�ന� ക�നറ നടന� ആ 41,500/- ര.പ എന�ക� ക�ട�. 2 ദ�/സനത rotation-ന�ണ ഞ�ന 1½ ലക� ര.പ നക�ട�തത.” Through the above evidence of the complainant it is brought on record that, even prior to the alleged transaction of giving sum of `1,50,000/- to the 1[st] respondent/accused, there was a chitty transaction between the husband of the 1[st] respondent/accused and the appellant/complainant and in that transaction, an amount of `41,500/- was due from the husband of the accused towards the complainant and for getting back that amount, he approached the husband of the accused for several times. The facts, connected with the conduct of the chitty, had been denied by the complainant, but he was constrained to admit the same because of Ext.D1. So, the complainant who was examined as PW1 is not believable. 13. The above evidence of the complainant further **Crl.A.No.2366 of 2010** 12 improbabilise the case of the complainant that he had parted an amount of `1,50,000/- to the 1[st] respondent/ accused, who is a lady and the wife of the husband who defaulted in paying money to the appellant/complainant connected with the earlier chitty transaction. So, the fact of absence of any satisfactory and cogent supporting evidence, definitely goes against the case of the appellant/ complainant, as rightly found by the lower appellate court. 14. In the decision in **Krishna Janardhan Bhat V. Dattatraya Hegde [2008(1) KLT 425 (SC)]** the Honourable Apex Court has held that, “An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records.” It is also held that, “Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part **Crl.A.No.2366 of 2010** 13 of an accused is 'preponderance of probabilities'”. It is also observed that, “Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.” In the present case, by producing Ext.D1, the accused has succeeded in making out a probable case that as to how Ext.P1 cheque reached in the hands of complainant. Thus according to me, even if there is any burden on the part of the 1[st] respondent/ accused, to rebut the presumption that, the burden is satisfactorily discharged by her by producing Ext.D1 document and also on the basis of admission of PW1 during his cross examination about the conduct of chitty business, which he denied in the complaint as well as in his chief examination. The facts and circumstances involved in the present case, particularly in the absence of any documentary evidence to show the receipt of hand loan by the accused as alleged and absence of specific date about the denial of hand loan either in the complaint or in the **Crl.A.No.2366 of 2010** 14 chief affidavit in lieu of chief examination are also go against the complainant, but are in favour of the accused. 15. Thus on examination of the facts and circumstances of the case and the evidence and materials on record it can be seen that the lower appellate court is perfectly correct and legal in its finding and I find no perversity in such finding, so as to interfere with the order of acquittal recorded by the lower appellate court, by which, the presumption of the innocence of the accused is reinforced. The Apex Court in a 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 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 **Crl.A.No.2366 of 2010** 15 “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, reappreciate 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 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). So, on examination of facts and circumstances of the case and in the light of the above decision, according to me, the **Crl.A.No.2366 of 2010** 16 appellant has miserably failed to make out a case to interfere with the order of acquittal recorded by the lower appellate court and as such, 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