Kerala High Court
A. Abdul Wahab vs Sanal Kumar on 13 December, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934
Crl.L.P..No. 187 of 2013 ()
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(AGAINST THE JUDGMENT IN ST.233/2011 of THE JUDICIAL FIRST CLASS MAGISTRATE
COURT - III, KOLLAM DATED 13-12-2012
PETITIONER/COMPLAINANT:
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A. ABDUL WAHAB
PROPRIETOR, ARABIAN JEWELERS, HEAD OFFICE
KOLLAM S/O.MOHAMMED KUNJU
PUTHENVEEDU PULIYOOR VANCHI, THAZHAVA P.O.
KARUNAGAPALLY.
BY ADV. SRI.SIRAJ KAROLY
RESPONDENT/ACCUSED:
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1. SANAL KUMAR
THYKOOTATHIL HOUSE, KULANADA, KULANADA P.O.
PATHANAMTHITTA-683503.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SRI.N.SURESH
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON
18-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.L.P.No.187 of 2013
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Dated this the 18th day of March, 2013
O R D E R
The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 13.12.2012 in S.T.No. 233 of 2011 of the court of Judicial First Class Magistrate-III, Kollam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
2. The case of the complainant is that the accused issued Ext.P2 cheque dated 10.10.2007 in favour of the complainant for an amount of Rs.1,75,466/- in discharge of a legally enforceable debt due to the complainant and when the said cheque presented for encashment the same dishonoured for the reason want of sufficient funds in the account maintained by the accused and the accused has not repaid the amount in spite of a statutory notice served on him and, therefore, the accused has committed the offence punishable under Section 138 of the Negotiable instruments Act.
Crl.L.P.No.187 of 2013 2
3. During the trial of the case, on behalf of the complainant PW1 was examined and Exts.P1 to P11 documents were marked. DW1 was examined and Exts.D1 and D2 were marked on the side of the defence. The trial court finally found that the complainant failed to prove the execution and issuance of Ext.P2 cheque for a legally enforceable debt or liability as claimed in the complaint. The trial court has further found that from the evidence adduced through the examination of PW1 and DW1 the defence version is more probable. Thus it is concluded that since the complainant failed to prove the execution and issuance of Ext.P2 cheque in discharge of a debt as claimed, the offence under Section 138 of the Negotiable Instruments Act could not attract. Consequently, the accused found not guilty and accordingly he is acquitted under Section 255 (1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the petitioner seeks leave of this Court.
4. I have heard Sri.Siraj Karoly counsel appearing for the petitioner and I have perused the judgment of the trial court.
5. The learned counsel vehemently argued against the second finding of the learned Magistrate of the trial court that the Crl.L.P.No.187 of 2013 3 evidence adduced through the examination of PW1 and DW1, the defence version is more probable is incorrect since the evidence of DW1 and Exts.D1 and D2 only shows that after purchase of the gold ornaments and on non-payment of price amount the complaint has filed and which action of the complainant is not prohibited or not illegal and, therefore, the said fact would not go against the case of the complainant. When this Court put to the counsel for the petitioner about the finding of the learned Magistrate that contained in paragraph 10 of the judgment sought to be impugned, the counsel submitted that in a proceedings for the offence under Section 138 of the Negotiable Instruments Act the complainant is not expected to state all the facts including the date of the transaction, place of execution of the cheque and issuance of the cheque etc. So, according to the counsel, the issuance of the cheque at Kollam Branch will not adversely affect the case of the complainant since the same is not impermissible. Therefore, the counsel submitted that the findings of the court below is incorrect and in case an appeal is entertained there is every possibility for interfering with the finding and order of acquittal.
Crl.L.P.No.187 of 2013 4
6. I have carefully considered the arguments advanced by the counsel for the petitioner and I have carefully gone through the judgment sought to be impugned.
7. In the light of the arguments advanced by the learned counsel for the petitioner and in the light of the findings of the court below especially on the basis of the evidence and materials referred to therein the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the findings of the court below and its judgment.
8. I have already referred the case of the complainant. The case of the defence borne out from the judgment is that he is a news reporter, who introduced one Girishkumar to the jewelery of the complainant and the said Girishkumar purchased gold ornaments on credit from the jewelery and the complainant who is a retired police officer preferred a police complaint against the said Girishkumar and the accused and when the accused reached in the police station, a cheque was obtained at the intervention of the police after intimidating him. According to the defence such cheque was presented after making entries therein and, Crl.L.P.No.187 of 2013 5 therefore, the said cheque is not supported by any consideration. The learned Magistrate considered the case of the complainant in the back drops of the above case of the defence. In paragraph 10 of the judgment the learned Magistrate has observed that the complaint does not contain the date of which the gold ornaments were allegedly purchased by the accused. In paragraph 7 of the judgment it is also recorded that subsequent to the examination of PW1, he was recalled and re-examined on 18.04.2012 and during that time Ext.P7 Balance Sheet and Profit and Loss Account was produced and about those documents it is found that Exts.P7 to P10 are Balance Sheet and Trading Profit and Loss Account of distinguished periods from 2008 to 2011. Ext.P11 is a copy of the retail invoice dated 10.11.2007 allegedly issued to the accused. It is also found in paragraph 8 that PW1 has stated that he knows one Girishkumar and he has also admitted that the said Girishkukar is a debtor to pay amounts to the complainant jewelery for the price of the ornaments purchased on credit. PW1 has denied the suggestion that the accused is a news reporter and also denied the suggestion that the said Girishkumar introduced by the accused and he purchased gold from the Crl.L.P.No.187 of 2013 6 jewelery. PW1 has also denied the suggestion in cross examination that a complaint was preferred against the said Girishkumar and the accused before the police officials. In paragraph 9 of the judgment the trial court has elaborately considered the defence evidence. After discussing the defence evidence and the version of the complainant the learned Magistrate has found that Ext.D1 is reliable and it proves that complainant had preferred a petition before the police on 13.03.1007 against the accused herein. In paragraph 11 of the judgment, the learned Magistrate has found that Ext.D1 proves that the complainant filed a petition against the accused before the Circle Inspector of Police Pandalam on 13.03.2007, alleging non payment of price of the gold ornaments given on credit. So according to the learned Magistrate, in the light of the said fact, the alleged transaction squarely taken place before 13.03.2007 and the complainant has no case that he has earlier transaction with the accused. So on the basis of the above facts and in that context the learned Magistrate has concluded that the allegation that the accused purchased gold ornaments from the jewelery from the complainant on 10.10.2007 and issued Ext.P2 cheque Crl.L.P.No.187 of 2013 7 on the said date, is proved as false.
9. It is also found that the deposition of PW1 that the accused purchased gold ornaments from the Pathanamthitta Branch of the complainants jewelery and issued cheque to its Kollam Branch on the very same day is not believable. The learned Magistrate has further found that if the transaction as alleged, have taken place, the accused would have issued the cheque at the Pathanamthitta Branch and there was no reason to travel Kollam for issuing Ext.P2 cheque. The sequence of deposition prove that such a contention was taken solely for the convenience of securing jurisdiction of the court at Kollam. The learned Magistrate has also found that PW1 himself deposed in the former portion of cross examination, contradicting the above said contention that Ext.P2 cheque was issued immediately after the purchase of the gold ornaments. Hence there is clear contradiction in the deposition of PW1 about the exact place, time and date about the execution and issuance of the cheque. It is also found that Exts.P7 to P11 documents are not obtained from the office to which returns submitted and according to the learned Magistrate merely because the said documents are Crl.L.P.No.187 of 2013 8 attested by a Chartered Accountant, the same cannot be treated as an authentic one. The learned Magistrate has also found that the complainant has not produced any certified copy of the documents from the CTO, Pathanamthitta or or as he could have summon the documents from the CTO, Pathanamthitta. It is also found that Ext.P11 does not contain the details of the gold ornaments purchased.
10. Against the finding of the learned Magistrate, on the basis of deposition of the PW1 that the cheque issued at the Kollam Branch, counsel submits that the possibility for such a transaction cannot be ruled out. According to the counsel, even if the gold is purchased form the pathanamathitta Branch the cheque can be given in the Kollam Branch. I do also agreed for such a transaction, if the same is factually and legally correct. The entire case put forward by PW1, though there is, no details in the complaint, is to the effect that the accused purchased gold ornaments from Pathanamthitta branch and simultaneously issued the cheque. But he had also stated that Ext.P2 cheque was issued at Kollam Branch. The above two case of the PW1 cannot go together. Especially when there is no pleading in the Crl.L.P.No.187 of 2013 9 complaint to the effect that the gold was purchased from the Pathanamthitta Branch and the cheque was issued in the Kollam Branch of the complainant jewelery. If there is such a pleading the evidence of PW1 can be appreciated in that sense. The above contention of PW1 goes against the specific case in the complaint that the ornaments was purchased from the Pathanamthitta Branch and simultaneously issued the cheque.
11. It is in the light of above contradictions and infirmities in the evidence of PW1 regarding the exact transaction particularly the place of issuance of the cheque and its due execution, the trial court came into its conclusion that the complainant failed to prove the execution and issuance of Ext.P2 cheque for a legally enforceable debt or liability as claimed by the complainant. From the evidence referred to in the judgment of the learned Magistrate which I have already mentioned above, according to me the same was sufficient to show that the case of the accused is more probable as rightly found by the learned Magistrate. Thus it can be seen that the findings of the court below are supported by materials and evidence on record and, therefore, it cannot be said that the same is perverse or illegal. Crl.L.P.No.187 of 2013 10 If that be so, even if an appeal is entertained there is little scope to interfere with the same particularly with respect to the order of acquittal recorded by the trial court in favour of the accused.
12. In a recent decision reported in Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430} the Honourable 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". Thus going by the judgment of the trial court and particularly the facts and circumstances involved in the case in the light of the above decision of the Supreme Court it can be seen that the petitioner has miserably failed to show any compelling or substantial circumstances to interfere with the order of acquittal recorded by the trial court and the petitioner has also failed to show that the judgment of the trial court and the finding of the learned Magistrate contained therein are Crl.L.P.No.187 of 2013 11 perverse or illegal. In the above circumstances, the petition is devoid of any merit and accordingly, declining the leave the same is dismissed.
V.K.MOHANAN JUDGE mns