Kerala High Court
Babu C.Jacob vs Philip. T.P. Thaimuriyil House on 7 October, 2009
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934
CRL.A.No. 2068 of 2009 (C)
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CRLP.831/2009 DATED 07-10-2009
CRA.859/2007 of SESSIONS COURT, KOTTAYAM
PETITIONER(1ST REPSONDENT/COMPLIANANT):
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BABU C.JACOB, CHATHANPURAYIDOM
(KALLOOPARAMBIL) SOUTH PAMPADY P.O., KOTTAYAM.
BY ADVS.SRI.K.JAJU BABU
SMT.M.U.VIJAYALAKSHMI
SRI.BRIJESH MOHAN
RESPONDENTS/(APPELLANT & 2ND REPSONDENT & STATE:
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1. PHILIP. T.P. THAIMURIYIL HOUSE,
NOOROMAVU P.O.PUNNAVELI, PATHANAMTHITTA DIST.
2. STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
PUBLIC PROSECUTOR SMT.S.HYMA - FOR R2
BY ADV. SMT.A.SREEKALA - FOR R1
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20-09-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No.2068 of 2009
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Dated this the 20th day of September, 2012
JUDGMENT
Aggrieved by the judgment dated 20/03/2009 in Crl.A.No.859 of 2007 of the court of Sessions, Kottayam the respondent therein who is the complainant in a prosecution for the offence punishable under Section 138 of the N.I. Act preferred the present appeal, as the lower appellate court acquitted the accused, after setting aside the conviction and sentence imposed on the respondent/accused as per the trial court judgment.
2. The case of the complainant is that the accused borrowed an amount of `1,80,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 03/06/2005 for the said amount which, when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has Crl.A.No.2068/2009 : 2 : not repaid the dishonoured cheque amount in spite of the statutory notice served on him and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case the complainant himself was mounted to the box and examined as PW.1. He has also produced Exts.P1 to P7 documents. From the side of the defence the accused himself got examined as DW.1 and produced Ext.D1 diary. Ext.C1 is also marked as court exhibit. The trial court on the basis of the above evidence and materials found that all the essential ingredients of the offence under Section 138 of the N.I. Act are attracted and proved against the accused and accordingly he is found guilty for the offence punishable under Section 138 of the N.I. Act. Accordingly on conviction of the accused for the offence under Section 138 of the N.I. Act, he is sentenced to undergo simple imprisonment for six months and also directed him to pay a sum of `1,80,000/- to the complainant as compensation under Section 357(3)of Crl.A.No.2068/2009 : 3 : Cr.P.C. and in default of payment of compensation he is directed to undergo simple imprisonment for another period of six months. When the above finding and order of conviction and sentence were challenged at the instance of the accused, the lower appellate court interfered with the same and allowing the appeal by judgment dated 20/03/2009, acquitted the accused by setting aside the judgment of the trial court. It is the above judgment of the appellate court and the findings thereon are challenged in this appeal at the instance of the complainant.
3. I have heard Sri.K.Jaju Babu, learned counsel for the appellant and Smt.A.Sreekala, learned counsel for the respondent. I have also perused the judgment of the appellate court as well as the trial court and scrutinized the evidence and materials on record.
4. The learned counsel for the appellant vehemently submitted that the lower appellate court erroneously interfered with the findings of the trial court Crl.A.No.2068/2009 : 4 : and set aside the conviction and sentence imposed against the accused. According to the learned counsel the accused has admitted his signature in Ext.P1 cheque and he has also admitted the transaction with the complainant, and had also failed to take appropriate contention in the reply notice, and on the basis of above facts and grounds the trial court convicted the accused but the appellate court simply for the reason that no averment taken in the complaint regarding the execution of the cheque, interfered with the trial court judgment which is legally and factually not sustainable and therefore according to the learned counsel the judgment of the trial court has to be restored approving the conviction and sentence recorded by the trial court and to set aside the judgment of the appellate court. On the other hand, the learned counsel for the respondent/accused strenuously submitted that the appellate court is right in its finding and judgment especially when there is no appropriate averment in the Crl.A.No.2068/2009 : 5 : complaint regarding the execution and issuance of the cheque. The learned counsel submitted that though the accused issued a reply notice denying the transaction and execution and issuance of the cheque, which defence of the accused is fully known to the complainant, no proper averment is taken in the complaint. It is also the submission of the learned counsel that there is no admission from the side of the accused in terms of the case of the complainant regarding the transaction and execution of the cheque. Therefore according to the learned counsel the appellate court is correct in setting aside the judgment of the trial court and acquitting the accused and no interference is warranted.
5. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned counsel for the respondent.
6. In the light of the rival contentions advanced by the counsel of the opposite parties and in the light of the evidence and materials on record, the question for Crl.A.No.2068/2009 : 6 : consideration is whether the appellant has succeeded in substantiating its challenge against the judgment of the lower appellate court and to interfere with the order of acquittal recorded in favour of the respondent/accused. The crux of the complainant's case is that the accused borrowed a sum of `1,80,000/- from him and towards the discharge of that liability the accused issued Ext.P1 cheque. Whereas the case of the accused is that he has not received any amount as claimed by the complainant and Ext.P1 cheque was not issued towards the discharge of any such liability. On a careful scrutiny of the judgment of the trial court it appears that the trial court has failed to consider whether the complainant has succeeded in establishing its case in terms of the ingredients of Section 138 of the N.I. Act. On the other hand, the trial court proceeded to examine the defect and infirmities in the evidence of the defence. It is the above illegalities, according to me, persuaded the appellate court to interfere with the finding of the trial court. The Crl.A.No.2068/2009 : 7 : appellate court has categorically found that, regarding the transaction and the execution and issuance of the cheque, absolutely there is no averment in the complaint. On a reading of Section 138 of the N.I. Act, it can be easily understood that in order to fix liability under Section 138 of the N.I. Act upon the accused, the complainant who is the holder of the cheque in question has to plea the facts which are necessary to constitute the ingredients of Section 138 of the N.I. Act and to adduce evidence in terms of such pleading. The lacuna from the side of the complainant in taking appropriate pleading in his complaint has assumed importance especially in the backdrops of the defence advanced by the accused. It may be true that the defence of the accused may not be constant and consistent in all the stages of the prosecution.
7. The improbabilities of the case of the defence cannot be taken to hold that the complainant has succeeded in probabilising its case. The complainant has Crl.A.No.2068/2009 : 8 : to establish his case for which there must be necessary averment in the complaint and pleading and the same has to be established by adducing cogent and satisfactory evidence. In the present case it is relevant to note that the sole witness examined is the complainant himself and the documentary evidence produced from the side of the complainant shows no document is produced to prove the transaction and the execution of Ext.P1 cheque. Ext.P1 is the cheque in question, Ext.P2 is the dishonour memo, Ext.P3 is the intimation, Exts.P4 to P7 are the documents connected with the statutory demand and the reply. Regarding the transaction and execution and issuance of the cheque absolutely there is no averment in the complaint. As rightly pointed out by the counsel for the respondent, though the complainant is aware of the prospective defence of the accused, no necessary averments are taken in the complaint regarding the details of the transaction particularly with respect to the place, date, etc. of the execution of the cheque. There is Crl.A.No.2068/2009 : 9 : also no averment to the effect that PW.1 has witnessed the execution of the cheque and issued the same to him directly by the accused. So according to me the lower appellate court is fully justified in its finding that the complainant has failed to prove the execution and issuance of the cheque.
8. It is also relevant to note that even after the reply notice and even after the filing of the complaint, when the proof affidavit is filed in lieu of chief examination of PW.1, he had failed to mention the exact date of execution of the cheque and place of the execution and other details connected thereto. It is now well settled that the mere presence of the signature of the account holder on the cheque is not sufficient to hold that the account holder executed and issued the cheque as claimed by the holder of the cheque. In the present case the accused has put forward a case to the effect that he had only one transaction with the complainant by which he borrowed an amount of `25,000/- from the Crl.A.No.2068/2009 : 10 : complainant and towards the security of the said transaction Ext.P1 cheque was given. It is pertinent to note that the complainant has not disputed the above claim of the defence. But at the very same time it is also relevant to note that there is no averment in the complaint to the effect that there were frequent transactions between the complainant and the accused. Suffice to say, PW.1-the complainant admitted the transaction between the complainant and the accused only when the accused put forward such a case. Thus it can be seen that the accused has succeeded in making out a probable case as to how Ext.P1 cheque reached in the hands of the complainant. But when we examined the case of the complainant and as to how the cheque reached in the hands of the complainant, it can be seen that absolutely there is no specific and definite case for the complainant. If that be so, according to me whatever may be the defect pointed out by the trial court, with respect to the defence case, the complainant has Crl.A.No.2068/2009 : 11 : miserably failed to establish his case in accordance with the statutory requirements and supported by evidence and materials.
9. Thus on examination of the impugned judgment of the appellate court it can be seen that the appellate court interfered with the finding of the court below and set aside the conviction after assigning sound reasons and therefore it cannot be said that the judgment of the appellate court is perverse.
10. In a recent decision of the Apex Court reported in State of Rajasthan v. Darshan Singh @ Darshan Lal (2012(4) Supreme 72), the Hon'ble Apex Court has held that, "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."
Crl.A.No.2068/2009 : 12 : Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, I find no ground to interfere with the order of acquittal recorded by the trial court. Therefore, the appeal fails as the appellant has miserably failed to make out a prima facie case. In the result, this appeal is dismissed.
V.K.MOHANAN, JUDGE skj