IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 CRL.A.No. 1149 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.441/2004 Dated 19/07/2004 CC.638/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... APPELLANT/ COMPLAINANT: -------------------------- K.P.MOHANAN, S/O. KESHAVAN, KUNHIPARAN HOUSE, AZHIKKAL SOUTH, KANNUR. BY ADV. SRI.P.M.PAREETH RESPONDENTS/ACCUSED & STATE: ------------------------------- 1. P.K.DEEPA, W/O. ASHOKAN, MANDAN HOUSE, PALLIYAMOOLA, ALAVIL, KANNUR. 2. M.ASHOKAN, MANDAN HOUSE, PALLIYAMOOLA, ALAVIL, KANNUR. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.I.V.PRAMOD FOR R1&2 PUBLIC PROSECUTOR SRI. K.S SIVAKUMAR FOR R3 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1149 of 2004 ----------------------------------------------- Dated this 13th January, 2011. JUDGMENT This appeal arises from an order of acquittal. 2. Appellant is the complainant. He filed a complainant against respondents 1 and 2 (A1 and A2 respectively) alleging offences under Sections 420, 465 and 471 read with Section 34 of IPC. As per the allegations in the complaint, on 13.8.1988, accused nos. 1 and 2 approached the complainant and accused no.1 wanted the complainant to lend Rs.50,000/-. When the complainant was reluctant to hand over the amount, accused no.2 represented that first accused will issue a cheque for Rs.50,000/- which would be encashed by 15.11.1988. 3. Being induced by the representation of accused nos. 1 and 2, complainant allegedly handed over Rs.50,000/- to the accused on the same day. At the same time, first accused signed and issued a cheque dated 15.11.1998 for Rs.50,000/-,upon mala fide representation that the cheque was drawn from the account of first accused. The said representation was also repeated by [Crl.A.No.1149/04] 2 accused no.2. The cheque was received by the complainant believing representation made by both the accused that cheque will be honoured on presentation before the bank. The cheque was dishonoured on presentation with the endorsement “account closed.” The accused had no sufficient fund also in his account. 4. The complainant further alleges that he came to understand that the accused no.1 had no account in the bank and he had signed and issued the cheque from the account of accused no.2. Therefore, according to complainant, it is clear that the intention of the accused was to cheat the complainant. Both the accused with common intention to cheat the complainant allegedly hatched a conspiracy and forged the cheque and handed over the same to the complainant. Notice was issued but no reply was sent. 5. The trial court examined sustainability of the charge framed under Section 420 IPC, on an analysis of the evidence in this case, which consists of oral testimony of PWs 1 to 3 and Exts.P1 to P3. The accused did not adduce any evidence. It was contended that the complainant is a [Crl.A.No.1149/04] 3 total stranger to first accused. The first accused took up a contention that he has no acquaintance with the complainant. Second accused had borrowed some amount from one Jayan and a blank cheque was given by 2nd accused to him. For an assurance, they had procured her signature in the cheque. Though money was given back, the cheque was not returned. The 2nd accused did not say anything specifically while questioned under Section 313 Cr.P.C. except denying all the evidence and circumstances which appeared against him. 6. The trial court entered a finding that evidence given by PW1 is inconsistent with the allegations in the complaint. Those do not tally. It is also held that the account was closed only after issuance of the cheque and hence, it cannot be said that accused had issued a cheque on a closed account, with the intention to cheat the complainant. Certain other discrepancies were also pointed out in the judgment to acquit the accused. The above findings are challenged in this appeal. 7. Heard both sides. Perused the records. The trial court found that no cheating is involved in this case, since [Crl.A.No.1149/04] 4 the account was closed only after the issuance of the cheque and therefore accused cannot be said to have any intention to cheat the complainant at the time of issuance of cheque. On a reading of the complaint as well as the evidence, it appears that complainant does not have a case that he was cheated by accused by issuing a cheque from a closed account. The case of the complainant appears to be that the accused, in furtherance of common intention to cheat complainant issued a forged cheque. According to complainant, cheque was drawn on the account of the 2nd accused (husband of the first accused) and the cheque was signed by first accused. Therefore, according to complainant, this is a a clear case of forgery. 8. According to complainant, accused cheated the complainant by making false representations that the amount borrowed from the complainant will be secured by the cheque, which will be honoured by the bank. The trial court failed to understand what exactly is the the case set up by the complainant. The case of the complainant in short is that by signing a cheque belonging to the 2nd accused and by making false representations that such cheque will be [Crl.A.No.1149/04] 5 honoured and by making the complainant to believe such representation, accused induced the complainant to part with Rs.50,000/- in favour of complainant. It is in this sense that complainant alleged that the accused cheated the complainant. 9. The trial court proceeded to hold that there is no element of cheating, since the account was not closed at the time of issuance of cheque. The complainant has no case in the complaint that cheating was committed by issuing a cheque from a closed account. It is also relevant to note that the complainant had a definite case in the complaint that accused no.2 represented that accused no.1 will issue a cheque for Rs.50,000/- etc. and being induced by the representation of accused nos. 1 and 2, complainant handed over a sum of Rs.50,000/- to the accused on the same day. The trial court at paragraph 11 of the judgment observed: “......when further cross-examined PW1 has denied the averment in the complaint that A2 had represented that he would issue a cheque belonging to A1.” 10. A reading of the evidence of PW1 would go to show that no portion of the complaint was brought to the [Crl.A.No.1149/04] 6 notice of PW1 in cross-examination relating to the representation of 2nd accused and PW1 did not also deny such averments in the complaint. The finding, therefore, is not supported by evidence. Without confronting a portion from the complaint and ascertaining the correctness of the same and getting an answer the court below ought not to have observed that PW1 denied the averment in the complaint etc. 11. It is also relevant to note that an attempt was made during cross-examination to establish that a particular allegation was not stated in the complaint i.e, the allegation that 2nd accused had made the complainant believe that 1st accused would give the cheque and it is under such belief that the money was given. But the complaint reveals there is specific averment that accused no.2 represented that accused no.1 will issue a cheque. Hence question itself was wrong. Trial court proceeded on the impression that there was such an omission there can be no doubt that the trial court has not read the evidence and complaint correctly. Several mistakes have crept in. The acquittal order was passed mainly on finding that evidence and the allegations [Crl.A.No.1149/04] 7 in the complaint do not tally etc. 12. The trial court also held that the recitals in the complaint as well as the evidence of PW1 show that accused had approached him for money for the first time only on 13.8.1988. Learned counsel for appellant argued that such a finding is not correct, since neither in the complaint nor in the evidence, PW1 made a statement that accused approached the complainant for money for the first time only on 13.8.1988. On a close reading of the evidence and complaint, I can only agree with this argument. Of course, at the time of evidence, PW1 deposed that accused had approached him 4 days prior to the drawing of cheque, but such a statement can at best be considered as an omission in the complaint but the finding referred above is not based on evidence. 13. The trial court lost sight of the fact that the complainant had made averments in the complaint that 2nd accused represented that accused no.1 will issue cheque for Rs.50,000/- and being induced by the representation of both the accused, complainant handed over the money. As per the allegations in the complaint, a representation was [Crl.A.No.1149/04] 8 made by both the accused. The court while appreciating the evidence of PW1 ought to have taken note of this fact and the order of acquittal of accused on the ground that evidence of PW1 does not tally with the allegations made in the complaint cannot be sustained. 14. It is pertinent to note that trial court held that the signature in Ext.P1 cheque was put by accused no.1 and this fact is proved beyond reasonable doubt. It is also held that evidence by bank manager (PW2) would go to show that it is accused no.2, who was holding an account in the bank. Exts.P7 and P8 would also establish this fact. It is also in evidence that false representations were made that the cheque would be honoured etc. The complainant alleged in the complaint that offence of forgery was committed. Though the trial court found that the cheque belonging to 2nd accused was signed by first accused and by making false representations that cheque was issued as security for payment of Rs, 50,000/- and it was drawn from the account of 2nd accused, it did not consider whether offence of forgery is made out or not. No charges were framed for offence of forgery. [Crl.A.No.1149/04] 9 15. At any rate, the findings entered by the trial court contrary to the records cannot be sustained. The trial court also failed to consider whether in the nature of the allegations made in the complaint offence of cheating or forgery was involved. In the above circumstances, the order under challenge is liable to be set aside and I do so. In the result, the following order is passed: 1) The order under challenge is set aside. 2) The case is remanded to the trial court for fresh consideration and disposal in accordance with law. 3) Parties shall appear before the trial court on receipt of notice through their counsel. This appeal is allowed. Sd/- K. HEMA, JUDGE. krs.