Kerala High Court
M/S. Aswin Papers vs B.G. Kalathil on 20 January, 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
FRIDAY, THE 20TH DAY OF JANUARY 2012/30TH POUSHA 1933
CRLP.No. 22 of 2012 ( )
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(AGAINST THE JUDGMENT Dtd.20.7.2011 IN ST.866/2006 of J.F.M.C.-III, KOCHI)
PETITIONER/COMPLAINANT(S):
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M/S. ASWIN PAPERS,
ERNAKULAM, THROUGH ITS MANAGING
PARTNER, RAVICHANDRAN, S/O.MAHALINGAM, RESIDING AT
5/A, 5TH FLOOR, KADAVIL COURT, ARANGATH CROSS ROAD,
PULLEPADY, ERNAKULAM.
BY ADV. SRI.C.T.JESTIN
RESPONDENT (S)/ACCUSED :
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1.B.G. KALATHIL, MANAGING PARTNER,
SURABHI PUBLICATION, MUNICIPAL BUILDING
NEAR PRIVATE BUS STAND, CHANGANASSERY,
PIN-686 101.
2.JOSE MATHEW, MANAGING PARTNER,
SURABHI PUBLICATION, MUNICIPAL BUILDING
NEAR PRIVATE BUS STAND, CHANGANASSERY,
PIN-686 101.
BY ADVS.SRI.N.P.SETHU FOR R1,
SMT.S.HYMA, PUBLIC PROSECUTOR FOR R2.
THIS CRIMINAL LEAVE PETITION ALONGWITH Crl.L.P.Nos.23 AND 24 OF
2012 HAVING BEEN FINALLY HEARD ON 20-01-2012, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
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Crl.L.P.Nos.22, 23 and 24 of 2012
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Dated this the 20th day of January, 2012.
O R D E R
The above three leave petitions are filed seeking leave of this Court to challenge the common judgment of the trial court. As the parties are one and the same and particularly, the question of facts and law involved are identical, these petitions are heard together and disposed of by this common order.
2. The petitioner in the above petitions are the complainant in S.T.Nos.866 of 2006, 8667 of 2006 and 868 of 2006 of the Court of Judicial First Class Magistrate-III, Kochi, and he preferred these three petitions seeking leave of this Court under Section 378(4) of Cr.P.C. to file separate appeals against the judgment in the above three cases of the trial court, as the trial court acquitted the accused in the above cases instituted upon the complaint preferred by the petitioner. As there was delay in filing the 2 Crl.L.P.Nos.22, 23 and 24 of 2012 leave petitions, notice was ordered in these petitions and thus after hearing both the petitioner and the respondents, the delay was condoned and thus, when the above leave petitions were posted today for admission both the counsels for the petitioner as well as the respondents are present and I heard them.
3. The case of the complainant is that the complainant engaged in the business of sales of paper and the accused used to purchase the same from the complainant and towards the discharge of such liability, connected with the supply and purchase of paper, the accused issued three cheques, which when presented for encashment dishonoured due to insufficiency of funds in the account maintained by the accused. According to the complainant, on dishonour of the cheques, statutory notice was issued to the accused and though they received the same, no reply was sent and no amount paid and consequently, approached the court of Judicial First Class Magistrate-III, Kochi, by 3 Crl.L.P.Nos.22, 23 and 24 of 2012 filing separate complaints upon which cognizance were taken and instituted the above three cases. In S.T.No.866 of 2006, the cheque in question is dated 2.9.2005 and covers an amount of Rs.50,000/- and the same was dishonoured and returned unpaid on 7.1.2006. In that case, statutory notice was sent on 30.1.2006. Similarly, in S.T.No.867 of 2006 the cheque is dated 28.8.2005 for Rs.1 lakh and the same was also dishonoured on 7.1.2006. The statutory notice is also dated 16.1.2006. In S.T.No.868 of 2006, the cheque amount is Rs.2 lakhs and the same is dated 4.1.2006. That cheque was also presented on 7.1.2006 and returned unpaid and statutory notice is also dated 16.1.2006, as in the case of other cheques.
4. While the above three cases were pending, C.M.P.No.205 of 2010 was filed in the trial court for joint trial of the above three cases and the same was allowed. On the side of the complainant, PW1 was examined and Exts.P1 to P7 were marked. The accused were questioned under 4 Crl.L.P.Nos.22, 23 and 24 of 2012 section 313 of Cr.P.C. On the side of the defence, DW1 was examined, who is the first accused and Exts.D1 and D2 were marked. On the basis of the rival pleadings and evidence on record, five points were formulated by the trial court for its consideration and finally held that the complainant has not succeeded in proving that Ext.P1 series cheques were issued in discharge of a legally enforceable liability and also not succeeded in proving all the necessary ingredients of offence punishable under section 138 of Negotiable Instruments Act. The learned Magistrate has accordingly found that the accused have not committed offence punishable under section 138 of Negotiable Instruments Act and consequently the accused are acquitted under section 255(1) of Cr.P.C. Thus the above findings and order of acquittal sought to be challenged by filing separate appeals, for which leave of this Court is sought for under section 378 (4) of Cr.P.C. and thus filed the above three leave petitions.
5. The learned counsel for the petitioner has 5 Crl.L.P.Nos.22, 23 and 24 of 2012 vehemently submitted that, Ext.P1 series cheques are produced by the complainant and therefore, in the light of the decision of the Honourable Apex Court reported in Rangappa Vs. Mohan [2010(2) KLT 682 (SC)], the complainant is entitle to get the presumption including the existence of legally enforceable debt or liability but the learned Magistrate on flimsy grounds held that the accused has rebutted the presumption. Thus according to the learned counsel, the above findings of the court below is incorrect and illegal and contrary to the dictum laid down by the Honourable Apex Court. It is the further submission of the learned counsel that though the defence has taken several contentions, including the contention to the effect that the cheques in question were given as security and though they have produced certain evidence including the documentary evidence such as Exts.D1 and D2, the trial court refused to accept the same. But inspite of such refusal, the learned Magistrate came into a conclusion that 6 Crl.L.P.Nos.22, 23 and 24 of 2012 the case of the accused that the cheques were given as security is correct. It is also contended by the learned counsel that PW1, who is not familiar in malayalam, when examined, deposed before the court to the effect that cheques were used to give to the staff of the complainant but the learned Magistrate recorded the same to the effect that 'cheques are given in the name of the staff of the complainant' and on the basis of the above incorrect appreciation of evidence, the learned Magistrate went wrong in holding that the same would also happened in the case of the accused persons but in the present case, the cheques were issued in the name of the complainant firm. So according to the learned counsel, the findings of the court below is incorrect and there is every scope of interference with the findings and order of acquittal.
6. On the other hand, the learned counsel for the contesting respondents submitted that though PW1 during his examination has admitted and claimed that the 7 Crl.L.P.Nos.22, 23 and 24 of 2012 documents connected with the transaction between the complainant and the accused are in his possession, the same were not produced before the court inspite of summons issued by the court under section 91 of Cr.P.C. Thus according to the learned counsel, as such the complainant has miserably failed to prove the liability. It is the further submission of the learned counsel for the contesting respondents that though the trial court rejected the defence version regarding the entrustment of Ext.P1 cheques as security, the complainant has miserably failed to prove the execution of Ext.P1 series cheques and the liability, and therefore the decision relied on by the complainant is not relevant in the present case and therefore the findings of the court below is absolutely correct and therefore there is no merit in the leave petition.
7. I have carefully considered the arguments advanced by the counsel for the petitioner as well as the respondents and I have perused the judgment of the trial 8 Crl.L.P.Nos.22, 23 and 24 of 2012 court. In the light of the rival pleadings and in the light of the evidence and materials referred to in the impugned judgment, the question to be considered is whether the petitioner in the above petitions have succeeded in making out a case so as to grant leave as prayed for. Going by the contentions advanced by the counsel for the petitioner as well as the respondents and in the light of the judgment sought to be impugned, it can be seen that the specific case of the complainant is to the effect that connected with the supply of the paper to the accused, some amounts were due to the complainant and towards the discharge of such liability, accused issued Ext.P1 series cheques. From the judgment of the trial court it appears that, it is true that the learned Magistrate has refused to believe the evidence of the defence, which were produced in support of their contention, that Ext.P1 series cheques were given as security. It is a well settled proposition of law that the prosecution has to establish and prove its case on its own 9 Crl.L.P.Nos.22, 23 and 24 of 2012 footing and evidence, and the same is not depend upon the failure of the defence in proving its defence. The specific plea of the defence is to the effect that connected with the transaction between the complainant and the accused, Ext.P1 series cheques in blank form were entrusted with the complainant and though there was no amount due to the complainant, by misusing those cheques, these cases are filed. When PW1 was examined, he had testified before the court that security cheques were not issued by the accused persons but the cheques would be issued in the name of the staff. The learned Magistrate has extracted the relevant portion of the deposition of PW1 in his judgment which reads as follows :-
"security . staff- ." Though the counsel for the petitioner
submitted that it was mistakenly appreciated the real facts by the learned Magistrate, no attempt was made by the complainant to re-examine PW1, or recall him to seek any 10 Crl.L.P.Nos.22, 23 and 24 of 2012 clarification. The mode of transaction and payment depends upon the understanding between the parties concerned, especially, keeping in mind the liability with respect to income tax as well as sales tax etc. Under the above factual background, according to me, the observation made by the learned Magistrate is only just and proper that in these cases also, the giving of cheques in the name of staff is correct, but Ext.P1 series cheques were issued in the name of the complainant firm. The learned Magistrate has also found that the complainant has no case that the accused persons have written the cheques and signed the same before PW1 or any other person. In the absence of any positive evidence from the part of the complainant or PW1, the trial court has found that the same would fortify the case of the accused persons that the cheques were given as security to the complainant. According to me, the learned Magistrate is absolutely correct in his finding, especially in the absence of any positive evidence from the part of the 11 Crl.L.P.Nos.22, 23 and 24 of 2012 complainant regarding the execution of the cheques and especially when PW1 says that cheques are being given in the name of the staff. Thus, absolutely there is no evidence to prove the execution of Ext.P1 series cheques.
8. It is also relevant to note that when PW1 was examined, he had claimed that the cheques were issued by the accused based upon the bills raised by the complainant and PW1 has also deposed before the court that he is ready to produce the bills pertaining to the cheques as well as the receipt issued from the transporting company, through which the papers were supplied to the accused persons. Though the complainant claimed the supply of paper, except the claim of PW1 in his deposition, no legal evidence is adduced connected with the transaction to show the liability of the accused. Therefore, in the present case the accused has moved C.M.P.No.746 of 2010 for production of bills raised by the complainant corresponding to the cheques, lorry receipt signed by the accused, confirming the 12 Crl.L.P.Nos.22, 23 and 24 of 2012 statement of accounts addressed to the accused and receipt of the same by the accused and also the statement of accused showing the liability of the accused for the amounts covered in the cheques. But the complainant did not produce the documents, namely bills, lorry receipt and copy of the confirmation statement of the accounts addressed to the accused. Therefore, the learned Magistrate draw an adverse inference against the complainant. That being the position, according to me, the decision of the Apex court cited by the petitioner has no relevance. As I indicated earlier, the execution of Ext.P1 series cheques are not proved. It is a well settled position that the presumption under section 139 will arise only when the execution of the cheques is proved. When the complainant miserably failed to produce the vital and relevant documents, though the summons was issued and inspite of the fact that the complainant has claimed that such documents are with them, no liability can be fixed against the accused in terms 13 Crl.L.P.Nos.22, 23 and 24 of 2012 of the decision cited above. In the decision of the Honourable Apex Court reported in Krishna Janardhan Bhat Vs. Dattatraya Hegde [2008(1) KLT 425 (SC)] it has held that, in order to discharge the burden of the accused to rebut the presumption under section 139 of NI Act, the burden of rebutting the presumption can be discharged by preponderance of probability and it is further held that inference of preponderance of probability can be drawn not only from the materials brought on records by the parties but also by referring to the circumstances upon which he relies. In the present case, though the trial court refused to accept the evidence of defence, the defence has succeeded in bringing out certain facts and certain circumstances, which I indicated earlier and the same are sufficient to draw inference of preponderance of probability in favour of the accused.
9. In the light of the above discussion and the evidence that referred to by the learned Magistrate in his judgment, I 14 Crl.L.P.Nos.22, 23 and 24 of 2012 am of the view that, even if an appeal is entertained, there is no scope for any interference with the findings of the learned Magistrate and the order of acquittal. No substantial reason is made out by the petitioner so as to interfere with the order of acquittal recorded and thereby disturb the double presumption secured by the accused. The petitioner has also no case that the learned Magistrate has over-looked any evidence or materials or the findings of the court below are perverse. Therefore, there is no merit in these petitions.
In the result, these petitions are dismissed as they are devoid of any merit.
V.K.MOHANAN, Judge ami/