IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 Crl.Rev.Pet.No. 550 of 2006() ----------------------------- CRA.111/2002 of ADDL. DISTRICT & SESSIONS COURT (ADHOC) I, PATHANAMTHITTA. CC.182/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ---------------------------------------------------------------------- P.S.JOSEPH, PLATHOTTATHIL, KAPPADU, KANJIRAPPALLY TALUK. BY ADVS. MR.PRAKASH P.GEORGE, MR.BOBAN VARGHEESE. RESPONDENT(S): STATE AND COMPLAINANT: ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. NABEESA BEEVI, MADATHANIL HOUSE, VAZHAKKALA, ERUMELY ( VAZIM MANZIL, KONNAIKKAMPOIKAYIL, PANDALAM). R1 BY PUBLIC PROSECUTOR MRS. M.K.PUSHPALATHA R2 BY ADVS. MR.M.NARENDRA KUMAR, SMT.LEENA KRISHNAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON 5/06/2009 PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A.NO.1548/2006 IN CRRP.NO.550/2006 DISMISSED 5/06/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.550 OF 2006 (C) ----------------------------------- Dated this the 5th day of June, 2009 O R D E R Concurrent verdict of guilty rendered against the revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act' is challenged in the revision. He was prosecuted for the above offence on a complaint filed by the 2nd respondent. He had pleaded not guilty. After trial, finding him guilty of the offence, the learned Magistrate convicted him thereunder, sentencing him to undergo simple imprisonment for six months. In appeal, the learned Additional Sessions Judge (Adhoc) Court-I, Pathanamthitta, confirmed the conviction, but modified the sentence to imprisonment till the rising of the court directing him to pay compensation of Rs.1,80,000/- to the complainant with default term of simple imprisonment for four months. Questioning the legality, propriety and correctness of the conviction and sentence as aforesaid, the CRL.R.P.550/06 2 accused has preferred this revision. 2. Short facts necessary for disposing this revision may be summed up thus: The accused owed Rs.1 lakh to the complainant and towards discharge of that debt, he issued Ext.P1 cheque for the sum, which on presentation before the bank in due course, was dishonoured due to the reason “payment stopped by the drawer” and then after issuing a statutory notice intimating such dishonour and demanding the sum covered by the instrument, prosecution was launched by the complainant against the accused indicting him of the offence punishable under Section 138 of the N.I.Act. The accused, on appearance before court, denied the accusation when the particulars of the offence were made known. Complainant examined herself as PW1 and got marked Exts.P1 to P9 to prove her case. The accused questioned under Section 313 Cr.P.C., maintained his innocence. During the cross examination of the complainant as PW1, he advanced a defence that he had no money transaction with the complainant. He had arranged a servant by name 'Kunjumon' CRL.R.P.550/06 3 to the complainant to attend to the works in her house, but, later on, that servant in connivance with another committed theft of valuables amounting to Rs.4.5 lakhs from that house. Suspecting his involvement also in the theft, he was taken into custody by the police and detained in the police lockup for four days. He had lost two blank cheques and also Rs.300/- kept in his purse while he was under detention of the police. Complaint has been filed forging his signature and also making fraudulent entries in one of such cheques by the complainant. Another complaint has also been filed against him by the complainant making use of the other cheque, forging his signature and incorporating fraudulent entries for a sum of Rs.6,55,000/-, before the Magistrate Court, Ponkunnam. Copy of the cheque produced in that complaint was confronted to the complainant (PW1) during his examination and got exhibited in evidence as Ext.D1 in the case. 3. The learned Magistrate, after appreciating the materials produced, concluded that the case of the CRL.R.P.550/06 4 complainant is established by the evidence tendered and that the defence canvassed by the accused is unworthy of acceptance. The accused was thereupon found guilty, convicted and sentenced as indicated above, which in appeal, was confirmed by the learned Sessions Judge with modification of sentence imposed as indicated above. 4. I heard the learned counsel for the accused and also the complainant. The learned counsel for the accused, submitted that an application was moved in the appeal before the Sessions Judge seeking permission to lead additional evidence, but, it was disallowed. He pleaded for an opportunity to let in additional evidence by remitting the case after setting aside the conviction and sentence imposed against the accused. The materials sought to be produced in appeal related to the acquittal of the accused in the connected case, that too, filed by the complainant claiming a sum of Rs.6,55,000/- from the accused under a different cheque, the prosecution of which was launched in a different court. A copy of the judgment of acquittal with a copy of the CRL.R.P.550/06 5 F.I.R. in a crime case in respect of the theft committed in the house of the complainant, were sought to be admitted as additional evidence in appeal, but the petition moved for reception of additional evidence, Crl.M.P.No.395/2005 was dismissed by the learned Sessions Judge, submits the counsel. The materials produced as additional evidence have much significance in examining the trustworthiness of the complaint and its rejection by the appellate court for the reason of delay, according to the counsel, is not at all justified. Relying on State of Gujurat v. Mohanlal Jitamalji Porwal ((1987) 2 SCC 364), it is contended that the delay taken in filing the petition, after admission of the appeal, which was noted by the court below as three years, is not at all material. The learned counsel contended that the value and significance of the additional evidence should have been given due consideration. Rejection of the petition moved under Section 391 of Cr.P.C., solely on the ground of delay, it is submitted, was thoroughly unjustifiable. Alternatively, it was contended that, in case, this Court too is not inclined to provide a further opportunity, still, on the materials tendered and in the proved facts and CRL.R.P.550/06 6 circumstances, the case advanced by the complainant is unworthy of any merit and the conviction and sentence imposed against the accused are totally unjustified and are liable to be set aside. On the other hand, the learned counsel for the complainant contended that the conviction of the accused concurrently founded by the two inferior courts does not suffer from any infirmity warranting interference by this Court in exercise of revisional jurisdiction. Complainant has proved her case by cogent legal evidence and the defence canvassed by the accused was not substantiated by any material but even on the face of itself shown to be unworthy of any merit, and, according to the counsel, the revision lacks any merit, and it is liable to be dismissed. 5. I have perused the records of the case giving consideration to the submissions made by the counsel on both sides and taking note that in revision, a reappreciation of the evidence to examine the correctness of the findings formed by the inferior courts is ordinarily not permissible unless it is shown that the finding entered is illegal or so perverse that it CRL.R.P.550/06 7 could not have been formed on the materials produced. After going through the judgment of the learned Magistrate and also that of the learned Sessions Judge, I find that the two courts have not appreciated the materials produced in the proper perspective. The learned Magistrate finding no merit in the defence canvassed by the accused, without referring to the attenuating suspicious circumstances relating to Ext.P1 cheque, on which the complaint was filed, concluded that the complainant has succeeded in proving the case against the accused beyond the shadow of reasonable doubt. Complainant in her evidence as PW1 admitted in unequivocal terms that she had filed another complaint against the accused for a sum of Rs.6,55,000/- in a different court and in respect of that transaction, she collected a promissory note, a title deed and also a copy of a title certificate (Pattayam) as security. It is noticed, the appellate court also, referred to the documentary evidence, but not appreciating the oral evidence tendered by the complainant (PW1) and also other suspicious circumstances presented in the case, and, then, concluded that the complainant has succeeded in establishing her case CRL.R.P.550/06 8 against the accused. What is seen from the judgment of the learned Magistrate and also that of the learned Sessions Judge is that after merely referring to the documentary material tendered by the complainant and marked in evidence but not subjecting them to scrutiny and without examining the merit of the sworn testimony of the complainant (PW1) the prosecution case has been accepted as proved. In a prosecution under Section 138 of the N.I.Act, there is no separate yardstick in appreciating evidence as different from any other criminal case, where the onus is always on the prosecution to prove its case, and it never shifts. Falsity of the defence canvassed may have significance only in a case where the materials tendered by the prosecution proves or atleast generate strong suspicion of the complicity of the accused in the offence imputed. Accused has a constitutional right to remain silent and that will not absolve the prosecution from discharging its burden to prove the case set up against him. Unfortunately, in the present case, failure of the accused to establish the defence canvassed by him and also the apparent improbability in accepting the defence canvassed has CRL.R.P.550/06 9 persuaded the learned Magistrate and also the learned Sessions Judge to accept the case of the complainant without critically examining the merit of the complainant's case in the backdrop of the proved facts and circumstances, which cause serious doubt on the veracity of the case presented by her. Since the very object of vesting revisional jurisdiction with the superior courts is to correct the infirmities and illegalities in the orders of the inferior courts, and thus to avoid failure of justice, after perusing the judgment of the court below and the materials tendered in the case, I am persuaded that a review of evidence in the revision is called for to avoid miscarriage of justice. 6. Complainant was examined as PW1. She has alleged in the complaint that Ext.P1 cheque was given in discharge of a debt owed from the complainant. No more particulars of the transaction giving rise to the debt are given in the complaint. When examined in chief, she narrated in tune with the allegations set out in the complaint. During her cross examination, when she was questioned about the transaction CRL.R.P.550/06 10 covered by Ext.P1 cheque, she would state that two days before, she had withdrawn Rs.2 lakhs from the Urban Co-operative Bank, from which Rs.1 lakh was given to the accused. If her version is accepted, the transaction covered by Ext.P1 cheque for a sum of Rs.1 lakh took place hardly two days before. When she was questioned with respect to the second cheque from the accused, she stated that the second cheque for Rs.6,55,000/- was given after issuing Ext.P1 cheque. She specifically stated that the second cheque was given on 5.11.2000 and being questioned further on the consideration covered by that cheque it is her case that she had then in her hand Rs.12 lakhs as the price received by sale of her property, from which the sum covered by the second cheque was given to the accused. Ext.D1 was admitted by her as the photo copy of the second cheque for the sum of Rs.6,55,000/-. Ext.D1 shows that it is dated 2.1.1999, the same date appearing in Ext.P1 cheque also, discrediting her version that the second cheque was given on 5.11.2000. A stamp receipt purported to have been signed by the accused, admitting the execution of Ext.P1 cheque was produced by the CRL.R.P.550/06 11 complainant and got marked as Ext.P8. When she was questioned why such a stamp receipt was collected, she asserted that it was taken to prevent the accused from denying the execution of the cheque later. While giving the second cheque, for a sum of Rs.6,55,000/-, according to the complainant, she had taken a promissory note, copy of a title deed for one acre of immovable propriety and also its pattayam (title certificate) from the accused. She also admitted that a theft had taken place in her house over which on her complaint a crime was registered at Ranni Police Station. When specific reference was made to Kunjumon, a servant in her house as arranged by the accused and his involvement in the theft, she denied the role of the accused in arranging him as her servant but conceded that Kunjumon, her servant, was also involved in the theft. Her evidence has to be appreciated in the backdrop that to the statutory notice issued on dishonour of the cheque with endorsement that “payment stopped by the drawer” the accused had issued a reply notice disputing the monetary transactions and setting forth a case that he was detained by the police for four days CRL.R.P.550/06 12 pursuant to a theft in the house of the complainant and loss of two cheque leaves kept in his purse while he was in custody. Arranging a servant to the complainant and his involvement in the theft were also stated in the reply notice as the reason for his arrest and detention, suspecting his involvement too in the crime, at the instance of the complainant. Despite such a case set up right from inception, even under the reply notice by the accused, which was reiterated by him during the trial also, the complainant has not let in any material to show that she had any money transaction with the accused at any point of time and under that transaction two cheques were given by him, one for Rs.1 lakh and the other for Rs.6,55,000/-. The above circumstance alongwith the collection of a stamp receipt (Ext.P8), taken with Ext.P1 cheque, generates reasonable suspicion as to the genuineness of the transaction. Two cheques, both showing the same date, for a total sum of Rs.7,55,000/- with the documents admittedly taken as security, as borne out by the evidence of the complainant (PW1), and the filing of the second complaint in respect of the cheque of Rs.6,55,000/- after its dishonour in a different court are other CRL.R.P.550/06 13 suspicious circumstances indicating that the transaction alleged by the complainant is not bona fide and genuine. It is admitted in the bar that the second complaint relating to the original of Ext.D1 cheque for Rs.6,55,000/- after trial, has ended in a judgment of acquittal in favour of the accused, and, according to the learned counsel for the complainant, an appeal preferred against that acquittal is pending before this Court. Both the cheques are of the same date in the absence of any material circumstance showing otherwise, prima facie, indicate it must be from one and the same transaction. The evidence that the transactions relating to the two cheques are different as stated by the complainant cannot be accepted on its face value. The discredited version of the complainant and the suspicious circumstances surrounding the transaction relating to the two cheques for a substantial sum of Rs.7,55,000/- as borne out by her evidence render the prosecution against the accused unworthy of any merit. 7. Merely on the basis of the presumptions covered by CRL.R.P.550/06 14 the Statute and the burden cast for displacement of such statutory presumptions by rebuttal evidence, it cannot be stated that the case of the complainant deserves acceptance. Just as in any other criminal case, in a complaint under Section 138 of the N.I.Act, the burden is on the complainant to prove his case. The accused failed to establish the defence canvassed, and further, the defence so canvassed by him appeared to be improbable and unacceptable, is not sufficient to assist the complaint, nor even relevant when the transaction set up by the complainant relating to the instrument is shrouded in suspicious circumstances, prima facie indicating that her case that the instrument was issued in discharge of a loan is not true. Both the courts below have not appreciated documentary evidence let in the case in the light of the sworn testimony of the complainant, which is found to be totally unworthy of any credence. She has suppressed in the complaint and also in her evidence, the real transaction, whatever she had with the accused. Her case that Ext.P1 cheque was executed voluntarily by the accused in discharge of a loan is thoroughly unbelievable in the proved CRL.R.P.550/06 15 facts of the case. 8. Totality of the facts and circumstances involved in the case demonstrate that the transaction under which the complainant obtained two cheques from the accused for a total sum of Rs.7,55,000/-, for which she filed separate complaints in two different courts is shrouded in suspicious circumstances indicating the transaction is not genuine and bona fide. In that backdrop, I find it unsafe to sustain the conviction founded against the accused by the courts below, and it is liable to be set aside. In reversal of the conviction and sentence imposed against the accused by the court below, he is found not guilty and acquitted of the offence under Section 138 of the N.I.Act. Revision is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.550 OF 2006 (C) --------------------------------------------------------- O R D E R --------------------------------------------------------- 5th June, 2009