Karnataka High Court
Shanteri Jema Jewelary vs T.K.Bhaskaran, S/O. Krishna Kutti on 3 March, 2014
Equivalent citations: 2015 ACD 193 (KAR), 2015 (2) AKR 297
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD OF MARCH, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 2665/2009
BETWEEN:
SHANTERI JEMA JEWELLERY
4552/B NEAR CHOTI MASJID
NANDANAGADDA, KARAWAR
REP. BY ITS PROPRIETOR,
JAYANAND MARUTI PAWASKAR
SINCE DECEASED BY HIS L.R.
SMT. JYOTSNA W/O. JAYANAND
PAWASKAR, AGE. 50 YEARS,
OCC. HOUSEHOLD & BUSINESS,
R/O. NANDANAGADDA, KARWAR,
DIST. UTTAR KANNADA.
...APPELLANT
(BY SRI A.S. PATIL, ADVOCATE)
AND:
T.K. BHASKARAN
S/O. KRISHNA KUTTI,
AGE. 49 YEARS, OCC.BUSINESS,
R/O. SAW MILL ROAD,
KARUKANCHAERY TRISHUR,
KERALA STATE.
...RESPONDENT
(BY SRI PRAVEEN P. TARIKAR FOR SRI GANGADHAR J.M.,
ADVOCATE)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT AND ORDER OF ACQUITTAL DATED 29.07.2008
PASSED IN C.C. NO.206/2006 BY HON'BLE J.M.F.C. (II COURT)
KARWAR AND CONVICT THE RESPONDENT/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTION 138 OF N.I.
ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred against the judgment of acquittal passed by J.M.F.C., II Court, Karwar, in C.C. No.206/2006 dated 29.07.2008.
2. The brief facts that emanate from records are that the appellant - complainant has lodged a complaint alleging that, on 10.11.2005 the accused has purchased some gold articles worth Rs.11,12,723/- from him and on demand, accused has issued a cheque bearing No.930918 on Bank of Maharashtra, Branch Calicut (Kozhikode), for the said amount. It is stated that on 10.12.2005 the said cheque was presented through ING Vysya Bank, Branch Karwar, 3 which came to be dishonoured with an endorsement 'payment stopped'. Hence, complainant has issued a legal notice to accused, as contemplated under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act' for brevity) on 13.01.2006 and the same was served on accused on 26.01.2006. Inspite of demand by complainant, accused has not returned said money and hence, complaint came to be lodged on 28.02.2006 before J.M.F.C. II Court, Karwar. The learned Magistrate after taking the cognizance has secured presence of the accused and after recording plea accused pleaded not guilty and claims to be tried. The learned Magistrate has framed the following points for consideration -
1. Whether the complainant proves that accused in order to discharge his legal liability issued a cheque dated 10.12.2005 for Rs.11,12,723/-
drawn on Bank of Maharashtra, Branch
Calicut (Kozhikode), in favour of the
complainant and on presentation for
encashment it is dishonoured with a shara 4 "stop payment", thereby he has committed an offence punishable under Section 138 of N.I. Act?
2. What order?
3. On the side of complainant one Jyotsna Jayanand Pawaskar was examined as P.W.1, as the original complainant, who is the husband of P.W.1 has died during the pendency of proceedings. She got marked six documents as Exs.P-1 to P-6. The accused has examined himself as D.W.1 and one witness by name Nagesh Kumar Bhandari as D.W.2 and got marked 8 documents as Exs.D-1 to D-8. Considering the oral and documentary evidence on the part of the parties to the proceedings, the trial Court came to a conclusion that the complainant has not proved her case beyond all reasonable doubt. Extending the benefit of doubt, the trial Court has acquitted the accused. Against which, the present appeal is preferred.
5
4. Learned counsel for the appellant - complainant strenuously contends that the learned Magistrate has not properly appreciated the materials on record and has not properly raised the presumption in favour of complainant under Section 139 of N.I. Act, when the accused has not disputed his signature on the cheque. He further contends that the accused has not placed any sufficient material to come to a conclusion that the presumption raised in favour of complainant is rebutted to the satisfaction of Court. In order to extend any benefit of doubt in favour of the accused, the learned counsel also contended that the plea taken up by accused with regard to loss of cheque has not been properly established before the Court by producing any judgment of Criminal Court in which he has filed a private complaint against one Francis Alapath, who is alleged to have taken blank cheques from the accused in the year 2005 itself. Therefore, he contends that the judgment of trial Court is perverse and illegal and same is liable to be interfered by this Court.
6
5. Learned counsel for respondent - accused strenuously contends that the accused has successfully rebutted the presumption under Section 139 of N.I. Act. The accused can rebut the said presumption by means of cross- examining the complainant, adducing evidence and producing documents. Therefore, the trial Court has not committed any error.
6. Before adverting to the observations made by trial Court, it is just and necessary to bear in mind the latest pronouncement of Hon'ble Supreme Court as to how the Courts have to deal with the appeals against the judgments of acquittals. It is worth to note a decision reported in -
2013 (4) AIR Kar 289 (SC) between S. Govindaraju vs. State of Karnataka.
Section 378 - Appeal against acquittal -
Powers of Appellate Court to reverse judgment of acquittal - Scope. Held : It is a settled legal proposition that in exceptional circumstances, the appellate Court, for compelling reasons, 7 should not hesitate to reverse a judgment of acquittal passed by the Court below, if the findings so recorded by the Court below are found to be perverse, i.e., if the conclusions arrived at by the Court below are contrary to the evidence on record, or if the Court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. while doing so, the appellate Court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence. Appeal dismissed."
7. It is also worth to note another decision reported in-
AIR 2012 SC 92 between Govindaraju alias Govinda vs. State of Srirampura P.S. and Another.
"Section 378 - Appeal against acquittal - Innocence of accused - Presumption as to - Is re- inforced by order of acquittal - Appellate Court 8 can re-appreciate, review and reconsider evidence on record - But, it should keep relevant principles of law in mind in doing so - Court must express its reasons which led it to hold that acquittal was not justified.
Held : A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefits of such presumption which could be interfered with by the courts only for compelling reasons and not merely because another view was possible on appreciation of evidence. The element of perversity should be traceable in the findings recorded by the Court, either of law or of appreciation of evidence. The Legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 Cr.P.C. This is an indication that appeal from acquittal is placed at a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under Section 378 9 Cr.P.C. has been introduced as an additional stage between the order of acquittal and consideration of the judgment by the appellate Court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under sub-sections (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the Courts. Under the scheme of the Cr.P.C., acquittal confers rights on an accused that of a free citizen. A benefit that has accrued to an accused by the judgment of acquittal can be taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the Appellate Court should be fully convinced that the findings recorded by the trial court are really erroneous and contrary to the settled principles of criminal law. Appeal allowed."10
8. On meaningful reading of the above rulings, it is clear that normally the Appellate Court should not interfere with the judgment of acquittals, unless the Court holds that the judgment of trial Court is perverse and illegal and the appreciation of evidence by trial Court is unknown to criminal jurisprudence and not an ordinary prudent man can come to such a conclusion on the basis of such materials on record. The Apex Court also cautioned that if the view taken by trial Court on the basis of the materials on record is also possible, then the Appellate Court should not substitute its different view to that of the view taken by trial Court. That means to say, if two views are possible on the same material facts, the view taken by trial Court should not be disturbed by the Appellate Court by substituting its view. In this background, this Court has to see the view taken up by trial Court.
9. The trial Court has observed in the course of its judgment that P.W.1 during the course of cross-examination 11 though stated that accused is the owner of a Jewellery shop, but not disclosed the name of said shop and it is further suggested during the course of cross-examination of this witness that there was some transaction between complainant's husband and one Fransis Alapth, Manager of M/s. Alapth Fashion Jewellery, Calicut, but she has expressed her ignorance. This particular question appears to have been put to complainant to show that the cheque in question has come to the hands of complainant's husband through the owner of said Alapth Fashion Jewellery, Calicut by name Alapth, who is alleged to have taken the said cheques from accused. Though P.W.1 has pleaded ignorance, she has not specifically denied that there was absolutely no relationship between said Alapth Fashion Jewellery, Calicut. It is also there in the evidence of P.W.1 by way of suggestion that on 06.11.2004 Alapth has met the accused at Pathima Hotel, Calicut, and obtained 35 cheques and 30 documents, out of them one cheque is involved in the transaction alleged by complainant. So far as this aspect is 12 concerned, P.W.1 has pleaded ignorance. The learned Magistrate has observed that the accused has lodged a complaint against Fransis Alapth and others and complaint copy was produced at Ex.D-1 and translation is at Ex.D-1(a). The learned Magistrate has come to the conclusion that this complaint was much earlier to the present transaction alleged between complainant's husband and accused. After considering date of issuance of cheque, presentation of said cheque before the Bank, date of dishonour, notice issued by complainant to accused and also filing of complaint, the learned Magistrate has come to a conclusion that reasonable doubt or suspicion has been created by accused in the transaction alleged by complainant. Therefore, the Magistrate has acquitted the accused.
10. I have also carefully perused the evidence on record. The total gamut of the evidence of complainant and as well as the accused is narrowed down to the question as to, whether the complainant has established any case 13 against the accused beyond all reasonable doubt and whether the materials produced before Court by the accused creates any serious doubt or suspicion which are sufficient to uproot the case of complainant so as to extend the benefit of such reasonable doubt in favour of accused.
11. Though the Court has to raise a presumption under Sections 118 and 139 of N.I. Act in favour of complainant to the effect that cheque was issued by accused, whether it is fully filled up or blank, once he admits the signature on the cheque, that cheque was issued on a particular date and for a particular sum and also for the purpose of discharging his any loan or liability, these presumptions are only initial presumption. Once the parties are permitted to lead evidence and if the parties have led evidence, then the Court has to see whether the initial presumption raised in favour of complainant is successfully rebutted by the accused or not. Here, according to the complainant he came in possession of the cheque on 14 10.11.2005 and he has presented the said cheque on 10.12.2005 before the Bank. Though this cheque was dated 10.11.2005, this was issued by accused in lieu of gold articles taken by him from the complainant's husband. But as on the date of that particular transaction if the accused is able to show that he was not at all in possession of the said cheque and the said cheque subsequently came into the possession of complainant through some other means, which is sufficient to rebut the presumption. In this regard, the accused has produced certain documents before the trial Court i.e., to say Ex.D-1, which the order copy, Ex.D-1(a) is the translated copy of order sheet pertaining to the complaint filed by him before the Judicial First Class Magistrate Court No.IV, Kozhikode on 27.01.2005. This document clearly goes to show that a private complaint was filed making certain allegations against the accused therein by name Fransis Alapth and others stating that on 06.11.2004 Fransis Alapth demanded six signed cheque leaves by means of giving threat to the accused herein and 15 his father and he has taken six cheques, out of them one of the cheque is involved in this particular case bearing No.930918 dated 10.11.2005. It is also worth to note here the The complainant has issued a notice to the accused in this case on 13.01.2006, which was served on 26.01.2006. Ex.D-3 is the reply for said notice. In the said reply everything has been explained with regard to transaction between accused and Fransis Alapth. Accused has denied the issuance of any cheque. Therefore, at the earliest point of time when the notice was issued a reply was given explaining the circumstances under which the cheque in dispute might have come to the hands of complainant. Therefore, the burden is shifted on to the complainant to establish that the said cheque was issued by accused on 10.11.2005 for repayment of any debt or liability and there was jewellery transaction between complainant and the accused. Though the learned counsel has brought to my notice that one document produced before trial Court by the complainant has not been marked, as it does not bear the 16 signature of accused, which is the receipt for having sold some gold articles in favour of the accused. But, at this stage, in my opinion, that cannot be taken into consideration because of the simple reason that the said document is not marked before the trial Court. Moreover when the other material documents produced before the accused are sufficient to rebut the presumption raised in favour of the complainant and further added to that, those documents are also sufficient to raise a reasonable doubt with regard to transaction between complainant and accused, which doubt is sufficient to shake the case of complainant, in my opinion, such benefit of doubt should be given in favour of accused. The trial Court has accordingly extended such benefit of doubt. It is notable point that while filing a private complaint before the Judicial First Class Magistrate Court No.IV, Kozhikode, on 27.01.2005 by the accused against Mr.Fransis Alapth, he could not anticipate that the complainant may file a case against him in the year 2006 and in anticipation of that, as a 17 counterblast to the transaction between complainant and accused, he has filed said complaint. At any stretch of imagination, such a conclusion cannot be reached by any ordinary prudent man. Further added to that, the accused has successfully shown that the said cheque was not at all in his possession as on 10.11.2005. According to him, it was given to Mr.Fransis Alapth in the year 2004 in the month of November 2004 itself. It could be understood if the transaction between complainant and accused was prior to 27.01.2005 and for the discharge of said loan a post dated cheque was given by accused prior to 27.01.2005 and that in order to defeat the rights of complainant the accused has filed a complaint on 27.01.2005, then the things would have been different. But in this particular case those facts are not available and it is also not the case of complainant. Under the above said circumstances, when a strong doubt is created with regard to transaction between accused and complainant and possession of cheque itself was not there with the accused on 10.11.2005, I do not find any strong 18 reasons to differ from the opinion expressed by trial Court. The view taken up by trial Court is based on documentary evidence. The view of learned Magistrate is not imaginary one. Therefore, when such a view is also possible on the basis of the above said materials, in my opinion, such judgments should not be interfered lightly by the Appellate Courts. With these observations, appeal deserves to be dismissed. Accordingly, appeal is dismissed. The judgment passed by J.M.F.C., II Court, Karwar, in C.C. No.206/2006 dated 29.07.2008 is hereby confirmed.
SD/-
JUDGE hnm/