IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 1972 of 2003() ---------------------------------- CC.547/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VAIKOM .................... APPELLANT/COMPLAINANT. ----------------------------------------- P.V. XAVIER, PALLIVATHUKKAL HOUSE, KOTHANALOOR P.O. VAIKOM. BY ADV. MR.MATHEW PHILIP EDAPPALLIL RESPONDENT/ACUSED. ---------------------------------- 1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR. 2. M.R. SATHEESH KUMAR, KAMAL VIHAR, ARUNAPURAM P.O., PALA -686 374. R1 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA R2 BY ADV. MR.S.VIJAYAKUMAR, MR.V.V.RAJA, MR.M.T.SURESHKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. --------------------------- CL.A.NO.1972/2003 ------------------------------ Dated this the 11th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the Judicial Magistrate of First Class, Vaikom in C.C.No.547/1999. It is a case initiated under Section 138 of the N.I.Act. It is the case of the complainant that the accused in discharge of the amount due from him to the complainant had issued a cheque bearing the date 6.8.1999, which when presented for encashment, returned with the endorsement account closed. Thereafter he had issued a statutory notice which was replied and as the amount was not paid, prosecution was initiated against the accused. The contention of the accused appears to be that he is an agent dealing with shares and mutual funds and that the complainant had entrusted him to sell some shares and towards the security for the shares so given, he had issued a blank cheque which might have been utilized by the complainant to file the case. 2. In the trial court, PWs 1 and 2 were examined, Exts.P1 2 CRL.A.NO.1972/03 to P10 and Exts.D1 and D2 were marked. On analysis of the evidence, the trial court found in favour of the accused and acquitted him. It is against that decision, the complainant has come up in appeal. 3. The points that emerge for determination are (1) whether the trial court was justified in acquitting the accused with the materials available on record (2) whether the judgment of the court below requires interference (3) In case, what is the quantum of punishment. 4. Points 1 and 2: It is the case of the complainant as revealed from the evidence that the accused had borrowed a sum of Rs.One lakh, ie., Rs.95,000/= and Rs.5,000/= and was paying interest at the rate of 24% and ultimately, on 6.4.1999 towards the discharge of the liability, fixed the amount at Rs.1,25,000/= and issued a cheque for the same. When the said cheque was presented, it was returned as the account was closed. So, it is the case of the complainant that the amount due was Rs.1,25,000/= and the cheque was issued on 6.4.1999 with the date as 6.8.1999 and the account was closed on 31.5.1999. So, on the date of 3 CRL.A.NO.1972/03 the presentation of the cheque, there was no existing account. The evidence of PW2, who is the Bank Manager, would reveal that the account was not closed by the accused, but only on account of the non-operation of the account, the bank has closed the account on 31.5.1999. Now let me consider the rival contention regarding the execution of Ext.P1. Admittedly, the signature in Ext.P1 is that of the accused. It has been pin pointedly admitted by him in the cross examination. The suggestion was that when the share certificates were handed over for the purpose of sale, towards security, the complainant had taken a blank cheque from the accused. 5. I am conscious of the fact that mere admission of the signature in a blank cheque does not amount to prove the execution of the document. Execution of a document should be proved by cogent evidence. Now it is also an equally settled principle in a 138 N.I.Act that when the prosecution as well as the accused adduce evidence, the evidence adduced by both sides can be looked into to consider the preponderance of probabilities in order to arrive at a decision regarding the point that whose version is more probable and 4 CRL.A.NO.1972/03 acceptable. It is in this backdrop that I want to analyse this matter. Ext.P10 is the first reaction to the prosecution notice by the accused. In that reply, what is stated is that he had not issued any cheque to the complainant, but the accused had lost his cheque book. The indication is that the lost cheque leaf is the cause of action for the initiation of the prosecution. When PW1 was being cross examined in the case, there is a total change. The suggestion is that as an agent, the accused was helping the complainant and his wife for purchase of shares for themselves and their children and on one such occasion, the complainant entrusted the shares to be sold by the accused and it was under that circumstance, the accused happened to issue a blank cheque to the complainant as security for the sale of those share certificates, At the outset, I may like to point out that, in the ordinary human conduct, when a person wants to sell a share certificate and approaches an agent ie. who is very familiar to whom, the anxiety is for the person who wants to get it sold rather than the person who sells it. So, it is the relationship of the parties that inspires confidence in a person to entrust the sale and 5 CRL.A.NO.1972/03 the evidence available in the matter namely suggestion in the cross examination would reveal that the accused had helped the complainant and his family in procuring large number of shares. This development cannot be accepted without a pinch of salt. Now, let me consider the documentary evidence available in this matter. Ext.P1 though belatedly produced would show that the accused had issued a receipt regarding the amount of Rs. One lakh ie., Rs.95,000/= and Rs.5,000/= respectively, but, it has to be clearly stated that it is not an admitted document by the accused. The endorsement therein would show that it was on 10.11.1995 that Rs.95,000/= was handed over with a stipulation to pay interest at the rate of 24%. The next endorsement is seen on 25.11.1995, where Rs.5,000/= was handed over making it as a consolidated amount of Rs.One lakh. The trump cards of the accused are the two receipts Exts.D1 and D2. Ext.D2 is a receipt issued by the complainant on behalf of his wife for the receipt of Rs.12,144.64. Ext.D1 is another receipt whereby the complainant acknowledged the receipt of Rs.1,02,511.76. These two receipts are dated 24.2.1996. There is no case for 6 CRL.A.NO.1972/03 the accused that Exts.D1 and D2 are the receipts issued in discharge of any liability due to the complainant or his wife. Most probably, reliance is placed on those documents to show that there was some entrustment for the sale of the share certificates or the other documents. So, it will not ipso facto conclusively establish the factum of a transaction as alleged by the accused. I am equally conscious of the fact that the burden is always on the defacto complainant to prove the execution of the document relied upon by him for launching the prosecution. Now, I will refer to the evidence of PW1. PW1 in the chief examination had clearly stated about the advancement of the amount, issue of the cheque, the date on which the cheque was given with post dated cheque, when it was presented for encashment and so on. In the cross examination as stated by me earlier, the trend is regarding the security which had been suggested by the counsel for the accused. In the cross examination itself, a reference is made to the advancement of the amount of Rs.95,000/= and Rs.5,000/= and it is true that Ext.P11 is produced under Section 311 of the Cr.P.C after the closure of the evidence. When we 7 CRL.A.NO.1972/03 read the cross examination as a whole, except for the mere suggestive questions one cannot understand how the court can arrive at a decision as projected by the accused in the cross examination. There is a categorical admission regarding the signature of the accused in Ext.P1 cheque as well. So, I do not find anything which will shake the credentials of the evidence tendered by PW1 in this case regarding the advance paid by him as loan and the cheque issued by the accused towards the discharge of the liability. On the contra, except for the suggestive questions, I don’t find any other materials which can connect the defence of the accused with the materials. Further, as stated by me earlier, the accused has totally a different thought when he was replying the prosecution notice but later has changed it totally. In a case of this nature especially in the criminal prosecution, Section 315 of the Criminal Procedure Code makes it very clear that no accused can be compelled to adduce evidence. Similarly it is not possible for the court to commend upon absence of the evidence adduced by the accused in the case. But, when materials are furnished and 8 CRL.A.NO.1972/03 they are available before this Court, in order to weigh the evidence of PW1, certainly it can be looked into. So, after analysing these materials, I am of the view that the evidence of PW1 is sufficient in this case to prove the loan transaction as well as issuance of Ext.P1 cheque towards the discharge of the liability. 6. Learned counsel for the respondent had brought to my notice the decision of the Hon’ble Apex Court reported in C. Antony v. K.G. Raghavan Nair (2003 (1) SCC 1). In that case, the Apex Court had clearly given the guideline that when against an order of acquittal an appeal is being heard by the High Court, the High Court cannot substitute its views unless there are convincing materials to support the same and the Apex Court also held that when two views are possible, only the view that in favour of the accused need be accepted and the judgment of the trial court need not be interfered with. I had meticulously borne these principles in my mind. As stated by me earlier, I had re-appreciated the evidence that is tendered before the trial court and a reading of the evidence coupled with the document that is on record would show that 9 CRL.A.NO.1972/03 the materials on record the court below had entered in to a wrong finding which certainly calls for interference. When such a wrong conclusion is arrived, the High Court is certainly at liberty to interfere with exercising its jurisdiction of an appellate court. Therefore, from these discussions, I find that the judgment and order of acquittal passed by the trial court requires interference. The other statutory requirements necessary are complied with. So, I find that the accused is guilty under Section 138 of the N.I.Act. 7. Point No.3: The next question is regarding the sentence. After the amended provisions of the N.I.Act, a court of competent jurisdiction is entitled to levy double the amount of the cheque as fine. So, there is no jurisdictional error in ordering the fine, if the cheque amount is ordered to be paid as fine in this case. I don’t propose to impose the sentence of imprisonment but only sentence him to pay fine of Rs.1,25,000/= with default sentence. 8. In the result, the Crl.A is disposed of as follows: 1. The order of acquittal passed by the trial court is set 10 CRL.A.NO.1972/03 aside. 2. The accused is found guilty of the offence under Section 138 of the N.I.Act and convicted there under. 3. He is sentenced to pay a fine of Rs.1,25,000/= which on realisation shall be disbursed to the complainant on proper application. In default of payment of fine, the accused has to undergo S.I for a period of two months. The lower court shall execute the sentence, if the amount is not paid on or before 31.08.2009. M.N. KRISHNAN, JUDGE cl 11 CRL.A.NO.1972/03 12 CRL.A.NO.1972/03