IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 CRL.A.No. 1026 of 2002() ------------------------------------- CRA.NO.138/99 OF ADDITIONAL SESSIONS COURT,KOTTAYAM. CC.NO.226/1993 OF CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM. ................ APPELLANT(S): RESPONDENTS / COMPLAINANT: --------------------------------------------------------------------------- T.C.KURIAKOSE, S/O.CHERIAN, THEKKEKUTTU HOUSE, VELLOOR, PAMPADY. BY ADV. MR.M.J.THOMAS RESPONDENT(S): APPELLANT / ACCUSED AND STATE: ---------------------------------------------------------------------------------- 1. T.K.SUKUMARAN, SAJI BHAVAN, ARUMANOOR, KOTTAYAM. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1026 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 6th April, 2009 JUDGMENT Complainant is the appellant. He has filed this appeal challenging the judgment of acquittal rendered by the Sessions Judge reversing the conviction and sentence passed against the first respondent/accused by the learned trial Magistrate for the offence under Sec.138 of the Negotiable Instruments Act (for short, 'the N.I. Act'). 2. The case of the complainant is that the accused issued Ext.P1 cheque for a sum of Rs.30,000/- towards discharge of a debt under a loan transaction, promising its encashment on presentation in due course. The cheque presented was, however, dishonoured due to insufficiency of funds in the account of the accused. A notice issued intimating dishonour of the cheque and demanding the sum covered by the instrument was returned unserved. Complainant, thereupon, launched prosecution against the accused for the offence under Sec.138 of the N.I. Act. 3. The accused, on appearance, pleaded not guilty. Complainant examined two witnesses including himself, as Pws.1 and 2 and got marked Exts.P1 to P5. The accused when questioned under Crl.A.1026/02 - 2 - Sec. 313 of the Cr.P.C., maintaining his innocence contended that he had no transaction with the complainant and the cheque had been given as security in respect of a transaction over the sale of a vehicle between his son and the complainant. The cheque had not been given for presentation before the bank, and, further, a notice had also been issued to the complainant directing him not to present the cheque, was the case of the accused. To prove the defence so canvassed, he examined three witnesses as Dws.1 to 3 and got marked Exts.D1 to D4. The learned Magistrate, after appreciating the materials, found the case of the complainant reliable and acceptable and the defence version presented by the accused unworthy of any merit. In concluding so, the learned Magistrate found the accused guilty of the offence imputed and he was, thereupon, convicted and sentenced to pay a fine of Rs.40,000/- with default term of simple imprisonment for three months. Out of the fine amount, if realised, Rs.30,000/- was directed to be paid as compensation to the complainant. Challenging the conviction, the accused preferred an appeal and the learned Sessions Judge after re-appreciating the evidence was of the view that the conclusion reached by the learned Magistrate to hold the accused guilty of the offence under Sec. 138 of Crl.A.1026/02 - 3 - the N.I. Act, in the proved facts of the case, was not justified. The defence case set up by the accused that he had no transaction with the complainant and Ext.P1 cheque had been issued as a security in respect of a transaction over the sale of a vehicle between the complainant and his son, after analyzing the materials produced by both sides, was found probable, and in that view of the matter conviction and sentence imposed against the accused were reversed and he was acquitted. 4. I heard the counsel on both sides. The learned Sessions Judge was not justified in interfering with the conviction founded against the accused by the learned Magistrate is the submission of the learned counsel. The discrepancy in the evidence of the complainant examined as Pw.1 that he had seen the accused writing the sum and date in the cheque whereas the instrument disclosed such entries were typed, it is submitted by the learned counsel, was given unmerited consideration by the Sessions Judge to doubt his testimony as a whole. He had given evidence after a long lapse of time, and also his age, was not taken into account by the learned Sessions Judge when that minor discrepancy was taken as a serious infirmity shattering the edifice of his case. Similarly, the Sessions Crl.A.1026/02 - 4 - Judge, according to the counsel, went wrong in placing implicit reliance on the evidence of Dws.1 to 3 to hold that the accused had substantiated his defence or at least showed it was probable. The evidence of the defence witnesses were not subjected to critical scrutiny by the learned Sessions Judge despite the fact that the trial judge who had the opportunity to watch their demeanour and deportment found their evidence not worthy of acceptance, is the submission of the learned counsel. The accused did not mount the box to swear in support of his case but only his son was examined as Dw.3, it is submitted, was not considered by the learned Sessions Judge in appreciating the defence case canvassed. The complainant had not received the notice purported to have been sent by the accused and there was no merit in the defence so taken up in trial, is the further submission of the learned counsel. So much so, it is urged, the conviction of the accused for the offence imputed against him by the trial magistrate may be restored reversing the judgment of acquittal rendered in his favour by the learned Sessions Judge. On the other hand, no interference with the judgment of acquittal passed by the Sessions Judge is warranted in the proved facts and circumstances of the case is the submission of the counsel for the Crl.A.1026/02 - 5 - respondent. 5. I have perused the records of the case giving consideration to the submissions made. The crucial question that emerges for consideration in the appeal is whether the learned Sessions Judge was justified in interfering with the conviction founded against the accused holding that there is serious infirmity in the case of the complainant rendering it unworthy of acceptance and that the defence case after being subjected to the test of preponderance of probabilities is more acceptable. I am afraid the learned Sessions Judge in unsettling the conviction against the accused has lost sight of some pertinent circumstances borne out by the materials produced in the case which indicated that the defence version projected by the accused is not credit worthy. The defence has canvassed a case that even before the presentation of the cheque, a notice had been issued to the complainant directing him not to produce the cheque for presentation. A copy of that notice had been exhibited in evidence as Ext. D3. Though some suggestions were put to the complainant during his cross examination that the accused had sent such a notice, it is interesting to note that no specific question was put at what point of time such a notice was issued and also through which advocate it Crl.A.1026/02 - 6 - had been issued. Notice, which is stated to have been issued to the complainant, as seen from Ext.D3, disclose that the son of the accused had issued Ext.P1 cheque in blank form as a security in respect of a transaction over the sale of vehicle which he had with the complainant. Strangely, the notice (Ext.D3) would show that the cheque in blank was signed by the son of the accused whereas the defence pleaded by the accused in the case is in respect of the transaction of his son he had issued a cheque as security. So, a conflicting version cutting at the root of the defence canvassed by the accused was presented by the son of the accused, if at all he had sent a notice. To prove the issuance of such a notice, the accused had examined two witnesses, two advocate clerks of an advocate through whom the notice was issued. Dws1 and 2 are the two advocate clerks examined. An acknowledgement card signed by the complainant was also exhibited in evidence as Ext.D2 to indicate the service of notice. There is nothing in evidence to show that the notice which had been issued to the complainant even if Ext.D1 receipt and Ext.D2 acknowledgement card were accepted relate to the original of Ext.D3 produced. The complainant had not been confronted with the acknowledgement card when he was examined as Crl.A.1026/02 - 7 - PW1. The learned Sessions Judge comparing the signature in the acknowledgement card with the admitted signature of the complainant in the complaint found some similarity in the signatures in both the documents. But, in this context, it has to be noted that other than putting forth a suggestion of issuing a notice,when the complainant was examined as PW.1, his attention was not invited to the contents stated in the notice, the name of the advocate through whom it was issued, at what point of time it was issued etc. Having regard to the fact that in the notice a different case than the one canvassed by the accused is disclosed, the son of the accused contending that he had issued an 'unsigned cheque' in blank form while the accused canvassed a defence that towards the transaction of his son he had issued the cheque, it is only to be stated that no reliance was permissible on the defence exhibits produced and also the evidence of D.Ws. 1 to 3 that the accused had given a notice to the complainant not to present the cheque. An agreement was also produced and exhibited as Ext.D4 to show the transaction between the complainant and the son of the accused over the exchange of their motor vehicles. If at all, an agreement was executed, it does not stand to reason why it was not confronted to the complainant Crl.A.1026/02 - 8 - during his cross examination when he denied of executing any agreement over the exchange of vehicles, but, admitted such a transaction with the son of the complainant. It is seen from the agreement that it is totally silent as to handing over of any cheque as security either by the accused or his son. It is interesting to note that the agreement disclose that a sum of Rs.65,000/- was payable by the complainant to the son of the accused on exchange of their vehicles, and it was agreed to be discharged by the complainant making cash payment of Rs.5000/- on execution of the agreement, Rs.10,500/-, sum allegedly paid by the son of the accused towards three hire purchase instalments over the vehicle, within one month from the agreement, and the balance amount by remitting the outstanding hire purchase instalments over the vehicle on due dates by the complainant. When such specific terms are incorporated in the agreement how the amount of Rs.65,000/- due to the son of the accused is to be adjusted if any cheque had been issued as security either by the accused or his son, definitely, it would have found expression in the agreement. The genuineness of the agreement itself is in doubt especially when the attention of the complainant was not invited to that document despite setting up of a Crl.A.1026/02 - 9 - defence that the cheque had been given in relation to the transaction relating to exchange of vehicles between the complainant and the son of the accused. Ignoring all these vital circumstances, discrediting the defence canvassed by the accused, the learned Sessions Judge, it seems, found the version of the accused as probable. The defence case, it is seen, stand discredited by the documents produced and exhibited, mainly Ext.D4 agreement, as evidenced by the terms of that agreement. Ext.D3 notice states that the cheque was signed by the son of the accused whereas the case of the accused even when questioned under Section 313 Cr.P.C.is that he had signed and issued a cheque as security. The evidence of D.W.3, the son of the accused, it is seen, is totally against the terms and conditions covered by Ext.D4 agreement. Whereas Ext.D4 agreement states of an existing H.P. arrangement. D.W.3 would state that a fresh C.C. on the vehicle was agreed upon for a sum of Rs.60,000/-, for which an amount of Rs.5000/- was agreed to be given to him. Needless to point out that the version so presented by him militates against the terms covered by Ext.D4 agreement. When an amount of Rs.65,000/- was due to him on exchange of the vehicles and it was agreed to be adjusted under the terms of Ext.D4, it is his case that there was some delay on Crl.A.1026/02 - 10 - his part to handover a document over the vehicle upon which the complainant insisted for having a cheque as security. Ext.P1 cheque was thus given as security, but, it was not returned even after handing over the document is his case. Other than the interested version of D.W.3, there is nothing on record to indicate that the cheque had been given as security as stated by him. Even in his notice, it has to be noted, his version was that Ext.P1 cheque signed by him was handed over to the complainant.The totality of the facts and circumstances would indicate that the transaction which D.W.3 had with the complainant in respect of exchange of vehicles was set up as a basis to advance a false case Ext.P1 cheque had been issued as a security in respect of that transaction. No other conclusion is permissible after critically analysing the materials produced in the case. The complainant examined as P.W.1 made a wrong statement that the cheque was written in his presence when the entries in the cheque showed that they were typewritten, in the given facts of the case, deserved to be treated as an inadvertent mistake, and nothing else. Learned Magistrate who had the opportunity to watch the demeanour and deportment found his testimony reliable and trustworthy. Needless to point out that the trial Magistrate will be in a Crl.A.1026/02 - 11 - more advantageous position to assess the credibility of a witness as he has better opportunity to watch every movement of the witness when he is giving the evidence. The opinion/conclusion formed by the trial Magistrate on the credibility and trustworthiness of a witness should be given maximum consideration and in the absence of adequate reasons, it is not proper to take a different view. After going through the evidence of P.W.1, I find no reason to differ with the view taken by the learned Magistrate that his testimony deserved acceptance. A mistake made by him as regards the entries in Ext.P1 cheque whether it was written or typed in the proved facts of the case should not have been given undue significance. Similarly, he had presented the cheque and filed the complaint ignoring Ext.D3 notice issued, the other circumstance relied by the learned Sessions Judge to doubt the worth of his case, I find, is not of much significance where the defence case is found to be totally unacceptable. Whether he had received the cheque from the son of the accused or anyone else cannot be given much consideration in the facts of the case. I find, on the materials produced in the case, the conclusion formed by the learned Magistrate that the accused is guilty of the offence under Section 138 of the N.I.Act was valid, proper and correct and the Crl.A.1026/02 - 12 - learned Sessions Judge went wrong in reversing the conviction founded against him of the offence indicted. So, in reversing the judgment of acquittal, the conviction and sentence imposed by the learned Magistrate is restored. As regards sentence, I am of the view that incarceration of the accused for a term in prison having regard to the nature of the offence is not necessary to meet the ends of justice. The accused is sentenced to undergo imprisonment till the rising of the court and to pay compensation of Rs.40,000/- under Section 357 (3) of the Cr.P.C. to the complainant within two months from date of this judgment. In default of payment of compensation within the time stipulated, the accused shall undergo simple imprisonment for two months. The accused shall appear and his sureties shall produce him before the Chief Judicial Magistrate, Kottayam on 1.7.2009 and the learned Magistrate shall execute the sentence as directed. srd S.S. SATHEESACHANDRAN, JUDGE