Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942 CRL.A.No.47 OF 2005(B) AGAINST THE ORDER/JUDGMENT IN CRA 244/2001 DATED 03-09-2004 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA AGAINST THE ORDER/JUDGMENT IN OTHERS 841/2004 DATED 21-12-2004 OF HIGH COURT OF KERALA APPELLANT/COMPLAINANT: R.ASHOKAN AGED 35 YEARS PUTHUVALIL VEETTIL, MAHADEVIDADU P.O.,, KARTHIKAPALLY. BY ADVS. SRI.R.PADMAKUMAR SRI.K.B.ARUNKUMAR RESPONDENTS: 1 SOMAN AGED 51 YEARS KAPPUKULANGARA THEKKETHIL, KAREELAKKULANGARA P.O., PATHIYOOR. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. R1 BY ADV. SRI.A.K.ALEX R2 BY PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR, SR.PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-10-2020, THE COURT ON 28-10-2020 DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 28th day of October 2020 This appeal is filed by the complainant in C.C Magistrate Court II, Haripad. It is a prosecution initiated by the appellant against the first respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act.(herein after the parties are mentioned in this appeal according to their rank in the the trial court)
2. The case of the complainant is that accused
borrowed a sum of Rs.55000/- from the complainant. When the complainant demanded the money back the accused agree to pay the money on 06.08.2000. In pursuance of that agreement the accused came to the
shop of the complainant on 06/08/2000 and on that day accused issued a cheque for Rs.55000/- to the complainant. When the cheque presented for
collection it was returned with an endorsement no sufficient balance. When statutory notice was issued, the accused refused to accept the notice and fail to pay the amount. Hence, the complaint was filed. To substantiate the case the PW1 and PW2 are examined on side of the complainant. Exhibit P1 to P9 are the exhibits marked on the side of the complainant. One witness examined on the side of defence as DW1. One document was also marked on the side of defence as DW1. After going through the evidence and the documents the Trial Court found that the accused committed the offence under Section 138 of the Negotiable Instruments Act. Accordingly the accused was convicted and sentenced to undergo simple imprisonment for 3 months and to pay a fine of Rupees 5000/- in default of payment of fine, the accused is sentenced to undergo simple imprisonment for a further period of one month.
3. Aggrieved by the conviction sentence, the accused filed an appeal before the Sessions Court Mavelikkara. The Additional Sessions Judge-I, Mavelikkara considered the appeal. After re-
appreciating the entire oral and documentary evidence the appellate court found that the accused has not committed offence under Section 138 of the Negotiable Instruments Act. The appeal was allowed and the conviction and sentence imposed on the accused is set aside. Aggrieved by the acquittal
order passed by the appellate court, this Criminal
Appeal is filed.
4. Heard the learned counsel for the complainant and accused. I heard the Public Prosecutor also.
5. The counsel for the complainant submitted
that it is a divergent view and the trial court convicted and the appellate court reversed the findings. Therefore, this Court may not treat it as an ordinary appeal against the acquittal and evidence may kindly be considered in detail.
6. The counsel submitted that the appellate
court erred in accepting Ext.D1 receipt. The counsel submitted that the signature in Ext.D1 is not admitted by the complainant. The Counsel submitted that there is adequate evidence adduced by the complainant to prove the offence under Section 138 of the Negotiable Instruments Act. The Counsel submitted that the execution is proved. The Counsel submitted that the presumption under Section 139 of
the Negotiable Instruments Act is attracted in this case. According to the complainant the accused miserably failed to rebut the presumption.
Therefore, the submission of the Counsel is that the appellate court erred in interfering with the conviction and sentence imposed by the trial.
7. The counsel for the accused supported the
findings of the appellate court. The Counsel submitted that after re appreciating the entire oral and documentary evidences the appellate court came to the conclusion that the accused is not guilty under Section 138 of the Negotiable Instruments Act.
8. Points after consideration in this case is whether the appellate court justified in setting aside the conviction and sentence imposed on the accused by the trial court.
9. The appellate court after re appreciating the entire oral and documentary evidences came to a
conclusion that the accused is not guilty of the
offence under Section 138 of Negotiable Instruments Act. The trial court after appreciating the evidences came to the conclusion that Ext.D1 receipt is admissible. The appellate court considered all the points raised by the complainant against Ext.D1 document and rejected all those contentions. Thereafter the appellate court came to the
conclusion that the accused has not committed the
offence. The discussion of the trial court is there in Para 9 to 13 of the impugned judgment which is abstracted here.
9. “The case of the complainant in the
complaint was that the accused borrowed a sum of Rs. 55,000/- agreeing to repay the same on 06.08.2000 and when he demanded , he had given Ext.P1 cheque in discharge of that liability. The case of the accused was that an amount of Rs.55,000/- was due from him to the complainant
in the chitty transaction and he had given Ext.P1 cheque as security for the same and thereafter he had repaid the amount from the shop of the complainant in the presence of DW1 and Ext.D1 receipt was given by the complainant for that purpose. In order to prove the case of the complainant, complainant himself was examined as PW1 and he deposed in support of his case. He had admitted that he knew DW1 and he was coming to his shop for collecting the chitty subscription,. Though he had stated that the DW1 had no enimity towards him, he had subsequently stated that now he had no faith in him. PW1 had admitted that the name and address written in Ext.D1 was in his handwriting but he denied the signature on the stamp and stated that it was not his signature. He had specifically stated in the re-examination that he had not given any blank signed paper or blank paper with writing his name and address to Santhosh. So there was no explanation
forthcoming from the side of the complainant as to how Ext.D1 paper containing his name and address written in his handwriting had come to the hands of the accused. Further perusal of Ext.D1 receipt will go to show the name and address of the complainant and the signature seen on Ext.D1 on the stamp were put using the same pen and ink. Further perusal of the admitted signature of PW1 in his vakkalath, complaint, deposition and the disputed signature in Ext.D1 will go to show that there are similarities in both the signatures and the possibility of the complainant putting that signature be ruled out.
10. Further DW1 had deposed before court
that he was working as collection agent for the complainant in his chitty business and he used to go to the shop of the accused for collection of the chitty amount for the accused and when the complainant wanted the amount he told the accused about the same and they went
to the shop of the complainant and paid the amount and he had prepared Ext.D1 receipt in his handwriting from the shop of the accused and the accused had signed the same in his presence. He had further stated that Ext.D1 receipt was obtained because the accused was not having the cheque given by the accused to him at that time and understanding was that the receipt will be given back to the complainant, when he returned the cheque to the accused. Though he was cross examined at length, nothing was brought out to discredit. His evidence regarding the execution of Ext.D1 receipt by the complainant and the circumstances under which it was executed by him. Merely because it was not prepared in the hand-writing of the complainant and DW1 happened to be an employee of the accused are not sufficient to disbelieve his evidence, regarding the execution of Ext.D1 receipt by complainant when the amount covered by Ext.P1 cheque was given to him.
11. Merely because the accused had not
informed the bank not to honour the cheque by issuing stop memo is also not a ground to disbelieve the discharge pleaded by the accused especially when the cheque was presented for collection within short period of obtaining Ext.D1 receipt. Further since the notice was returned as unclaimed, there was no occasion for the accused to mention about Ext.D1 receipt. The receipt was shown to PW1 when he was examined and that was the first opportunity for the accused to produce receipt before court. So the reason stated by the court below for not believing Ext.D1 receipt appears to be unsustainable.
12. Further in a criminal case accused need not prove his case beyond reasonable doubt and he need only prove that his case more probable than the case of the complainant. This was so
held in the decision reported in 2003(2) KLT
825 (Mohanan Vs. Bhibu kumar), in this case the
evidence adduced on the side of the accused proved that he had discharged the liability covered by Ext.P1 cheque. Even before the complainant presented the cheque for collection. Except this transaction there was no other transaction between the accused and the complainant and in Ext.D1 it was mentioned that the amount was paid in discharge of the liability covered by Ext.D1 cheque. So under circumstances the complainant had failed to prove that there was any amount due from the accused to the complainant when the cheque presented for collection and as such the complainant had failed to prove that the accused had committed the offence punishable under Section:138 of the Act.
13. The other contention that there is no
cause of action mentioned in the complaint etc are not correct because the case of the complainant had to be considered on the basis of the allegations in the complaint and also
the documents produced along with complaint. In this case the cheque was returned on 24.08.2000 and the dishonour memo might have been received by the complainant only after 09.09.2000 which is evident from the Ext.P3 cover. The complainant issued the notice on 20.09.2000 within 15 days of receipt of the dishonour memo from the bank and filed the complaint within 45 days of intimation of the notice mentioned in Ext.P6 as 22.09.2000. so on the basis of the documents and the allegations in the complaint there was cause of action for the complainant to file the complaint. But on the basis of the evidence, I have found that there was no amount due to the complainant as per Ext.P1 cheque when the cheque was presented for collection, no offence u/s.138 of the Act is committed by the accused. The finding of the court below that the accused had committed the offence punishable u/s.138 of the Act and the consequential conviction entered by the court
below against the appellant under that section are unsustainable in law and hence the same is liable to be set aside. The appellant is aquitted of the charge levelled against him giving him the benefit of doubt. The point is answered accordingly.” I see no reason to interfere with the above well considered judgment in which all the contentions of the complainant were considered and rejected. I see no reason to interfere with the acquittal order passed by the trial court. Therefore, this Crl.Appeal is dismissed. Sd/- P.V.KUNHIKRISHNAN JUDGE jms