IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 CRL.A.No. 2018 of 2005() ------------------------ CRA.NO.405/2004 of 1ST ADDL. SESSIONS COURT, ERNAKULAM CC.NO. 245/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... APPELLANT(S): RESPONDENT/COMPLAINANT --------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD RESPONDENT(S): APPELLANT/ACCUSED ------------------------------------------------------------- JOSEPH, S/O.PAPPU, KOLAPPILLIL VEEDU, SIMITHERIMUKKU, TOWER HOUSE EXTENSION ROAD, THRIKKANARVATTOM DESOM, ERNAKULAM. BY ADV. SRI.V.B.UNNIRAJ THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2011,ALONG WITH CRRP NO.2786 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts (CR) N.K.BALAKRISHNAN, J ----------------------------------------- Crl. Appeal No.2018 of 2005 & Crl. Rev.Pet.No.2786 of 2008 ------------------------------------------ Dated this the 5th day of August, 2011. JUDGMENT The sole accused in C.C.No.245 of 2000 of Judicial First Class Magistrate Court II, Ernakulam, was convicted by that court for offences under Section 420 IPC, 468 IPC and 474 IPC, and was sentenced to undergo rigorous imprisonment for one year each. In the appeal filed by him, the learned Sessions Judge set aside the conviction and acquitted of all the charges levelled against him. The state has preferred this appeal Crl.Appeal No.2018/05 and the defaacto complainant has filed the revision, Crl. R.P.No.2786/08 challenging the verdict of acquittal. 2. The case of the prosecution is that the accused had borrowed Rs.2,00,000/- from the complainant (PW1) in January 1995 and again borrowed Rs.2,25,000/- in 1997. Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 2 The aforesaid amounts were paid by PW1 to the accused in three instalments. The case of the complainant was that he had raised the amount by selling the shop, he was holding in the GCDA complex and also by selling the gold ornaments of his wife. Since the accused failed to pay the amount, petition was filed to the police whereupon the accused was called to the police station and asked him to discharge the amount due to the complainant. The accused was stated to have signed Ext.P1 cheque. When it was presented for encashment, it was dishonoured for the reason “insufficiency of funds”. Though notice was issued to the accused, he failed to pay the amount. The complainant could realise that the cheque leaf of one John Abraham was misused by the accused and making use of that cheque leaf, Ext.P1 cheque was issued by the accused to the complainant and he thereby cheated PW1. 3. According to the complainant, the accused Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 3 intentionally cheated him by forging the document, by signing the cheque leaf of John Abraham who was the holder of the account and forging the said document (the cheque) and knowing the said cheque to be a forged one, he issued that cheque to the complainant and thus the accused committed the offences mentioned above. The police after investigation, filed the charge sheet against the accused alleging commission of the offences as mentioned above. The accused pleaded not guilty. PW1 to PW5 were examined and Ext.P1 to P5 were marked. 4. It was contended by the defence that John Abraham was a tenant of a building owned by the complainant and after obtaining a cheque leaf belonging to John Abraham it was made use of by the complainant himself to create Ext.P1 and presenting the same this case has been foisted against the accused. It was also contended by the defence that PW1 discarded his wife and children and hence they Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 4 filed petitions before Family Court, Ernakulam, claiming maintenance against PW1 and since the accused who is the brother of the complainant did not support the complainant in that case he had serious grouse against the accused and it was only to settle score on account of that this case was foisted against him. 5. Accepting the evidence tendered on the side of the prosecution, the learned Magistrate found the accused guilty of all the offences and convicted accordingly. The learned Sessions Judge after re-appreciating the evidence found that there is no legal evidence to hold that Ext.P1 was actually signed and issued by the appellant. Though the prosecution contended that Ext.P1 was given in the account of one Johan Abraham surprisingly enough, that John Abrahan was not examined. Prosecution had no explanation as to how that cheque leaf happened to be signed by the accused. Except the interested testimony of PW1 and the woman Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 5 (PW2) who is alleged to be the second wife of the accused there is no other acceptable evidence to hold that Ext.P1 was actually signed by the accused. Evidence of PW3 who is the uncle of PW1, who also claims to have seen the accused filling-up Ext.P1 was relied upon by the prosecution. But it has come out in evidence that PW3 had long standing rancour with the accused who had filed criminal cases against the accused. Therefore, the defence is legitimate in its contention that PW3 is highly interested in supporting the complainant and had animosity towards the accused. So much so, the learned Magistrate was not justified in acting upon the interested and partisan evidence given by PW2 and PW3 to support the case of PW1. Though it was the specific case of the accused that the cheque was not written and signed by him the investigating officer did not send that document for comparison and no evidence was adduced to prove that Ext.P1 was signed by the accused. It was also Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 6 pointed out that though it was contended that the complainant had raised the amount for advancing the loan as stated in the complaint, no document was produced by the complainant to prove how the amount was raised. The contention that the gold ornaments of PW2 were sold or pledged only to lend money to the complainant has also been critically commented upon by the defence. Though it was contended that a sum of Rs.5 lakhs was obtained and the complainant had parted with possession of the room allotted to and occupied by him under the GCDA that document was also not produced before the investigating officer or before the trial court. The fact that the document relating to the sale of gold ornaments was not produced before the investigating officer was also seriously taken note of by the learned Sessions Judge. 6. It was vehemently argued that when the evidence given by PW1 was corroborated by PWs.2 and 3 that Ext.P1 Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 7 was signed by the accused in their presence, the evidence so tendered by them should not have been viewed with suspicion. The argument proceeds on the premise that Ext.P1 was actually signed by the accused. Admittedly, PW5 did not send Ext.P1 to get the hand writings and signature therein compared with the admitted handwriting and signature of the accused. There is no cogent or convincing evidence to show that signature purported to be of the accused found in Ext.P1 was actually put by the accused or that the accused disguisedly put his signature in Ext.P1. When the whole foundation of the case is the so called advancement of loan and since the accounts and other documents pertaining to the same were not produced, it would be unsafe to act upon the interested and unconvincing testimony of PW1 to PW3. As stated earlier, the non examination of John Abraham also is fatal to the prosecution. Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 8 7. The learned counsel for the complainant who has filed the revision petition would submit that Ext.P1 and the admitted handwriting and signature of the appellant were forwarded for comparison by the learned Sub Judge before whom the suit filed by the complainant was pending. The learned counsel would request this Court to receive additional documents produced along with Crl.M.A. No. 8678 of 2009 and would submit that if at all the court has any doubt regarding the acceptability of the prosecution case it may be remanded to the learned Magistrate for fresh disposal. It will be too unjust to allow such request at this stage, the learned counsel for the accused submits. 8. It is important to note that for realisation of the amount covered by Ext.P1 with interest thereon a suit was filed before Sub Court, Ernakulam and that suit was decreed by that court. It is stated that appeal filed against that decree and judgment is now pending before this Court. Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 9 The fact that in the civil suit the case set up by the complainant was accepted and decree was passed, is no reason to hold that the same evidence should be accepted by the Criminal Court to find the accused guilty especially because the accounts and other documents which are now sought to be received by this Court were not produced by the complainant before the trial court but were only produced before the civil court. Therefore, the civil court had the opportunity to sift, weigh and balance the evidence adduced by the parties. That apart, that court had also the advantage of getting the experts opinion with regard to the signature and handwritings contained in Ext.P1 as that of the accused. But here the position is altogether different. Realising that insurmountable difficulty, the learned counsel for the complainant now makes this request to remand the case to the trial court for enabling the complainant to produce all those documents Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 10 and to adduce further evidence. That request is stoutly opposed by the defence since it would be unjust to allow the prosecution to fill up the lacuna after about 11 years. If the documents already collected by the police were not sufficient, there was no reason why the investigating officer did not think of conducting further investigation under Section 173 (8) of Code of Criminal Procedure nor was there any reason for the complainant not to request the court through the learned Prosecutor to reopen and receive additional evidence under Section 311 of Code of Criminal Procedure. There was no such request before the learned Sessions Judge also. Therefore, it is too late in the day for the complainant to lament over the matter. 9. The learned counsel for the revision petitioner/complainant very much pressed into service the judgment passed by the Sub-Court to be treated as evidence to support the case of the complainant. It is Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 11 contended that the suit was laid on the very same cause of action. It was decreed in favour of the petitioner. In that suit the report of the expert was accepted and hence it is argued that it should be taken into consideration to hold that the case of the petitioner is true. Similarly the petitioner requests this court to place reliance on Annexure- D report of the Assistant Director, Forensic Science Laboratory to prove that the stand taken by the accused that the cheque was not signed by him at all is a travesty of truth. Though the said document is not admitted in evidence only to dispose of this appeal and revision petition, I have gone through the said report also where it was reported as follows: “ The questioned document is this case was carefully and thoroughly examined and compared with standard documents in all aspects of handwriting identification and detection of forger with scientific aids in the State Laboratory at Thiruvananthapuram. The result of examination is the following:- 2. The person who wrote the red enclosed standard signatures stamped and marked A1 to A3 Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 12 probably also wrote the red enclosed questioned signature similarly stamped and marked Q1” 10. The learned counsel for the accused would submit that on the inconclusive and imprecise opinion expressed in that report, the court cannot find the accused guilty, that too, offences u/s 468 and 420 IPC. It does not mean that the report loses significance or relevance altogether. That may be relevant for adjudication of the suit but when there is no acceptable evidence in this case to prove the due execution of disputed document; the complainant cannot now request the court to have a retrial sending it back to the trial court. In K.G. Premsanker Vs. Inspector of Police and another (2002) 8 Supreme Court Cases 87, it was held by the Apex Court: “Further, the judgment, order or decree passed in a previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration; in a case of alleged Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 13 trespass by A on B's property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusive establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is - whether judgment, order or decree is relevant, if relevant - it effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case.” 11. It was held by the Constitution Bench in M.S. Sheriff Vs. State of Madras (AIR 1954 SC 397) that no hard and fast rule can be laid down and the possibility of conflicting decision in Civil and Criminal Courts is not a relevant consideration. It was held in that decision. “The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 14 except for limited purpose such as sentence or damages”. 12. Following the dictum laid down in M.S. Sheriff, it was held in K.G. Premshanker that the observation in V.M. Shah Vs. State of Maharashtra (1995) 5 SCC 767 that the finding recorded by the criminal court stands superseded by the finding recorded by the Civil Court is not correct enunciation of law. Therefore, in the light of the decision in Premshanker's case, the findings rendered by the Civil Court cannot in any way help the complainant to contend that the findings of the learned Sessions Judge should be reversed and the case should be remanded to the trial court for fresh trial. 13. Learned counsel for the accused would rely upon the decision in Ayodhya Dube and other Vs. Ram Sumer Singh 1982 Supreme Court cases (Cri) 471, to fortify his submission that the High Court should not interfere with Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 15 the order of acquittal unless it is a case where there was total non-application of mind, non-consideration or improper consideration of material evidence, inconsistencies, invalid reasoning and lack of jurisdictional approach on the part of the lower court resulting in grave mis-carriage of justice. Therefore, only on such grounds the High Court can interfere with the order of acquittal and order retrial. Even the prosecution has no case that the judgment rendered by the learned Additional Session Judge is vitiated on any of such grounds. The prosecution would also agree that the evidence already on record is not sufficient to warrant a conviction. That precisely is the reason why the de facto complainant/revision petitioner has how chosen to file the application Crl. M.A. 8678 of 2009 to receive additional evidence u/s 391 of Cr.PC. The learned counsel for the revision petitioner would submit that Section 401(1) Cr.P.C gives the High Court, the discretion to Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 16 exercise any of the powers conferred on the court of appeal by Sections 386, 389, 390 and 391 and so the argument that is advanced by the learned counsel is that the documents produced before this court as per the application mentioned above can be received in evidence u/s 391 Cr.PC. I cannot agree. It was held by the Apex Court in the decision in Ramesh Babulal Doshi Vs. State of Gujrat AIR 1996 Supreme Court 2035 “This court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusion arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed” Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 17 14. The learned counsel for the accused has also relied upon the decision in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh and another (AIR 1962 Supreme Court 1788) where it was held: “It is true that it is open to High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice” 15. It is not a case where the trial court wrongly shut- out evidence which the prosecution wanted to produce or where the appellate court wrongly held inadmissible the evidence which was admitted by the trial court or where material evidence was overlooked either by the trial court or by the appellate court. This court finds no exceptional circumstance to justifiably interfere with the judgment of acquittal. There are limitations on the power of the High Court in revision to set aside the finding of acquittal. It is Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 18 only in exceptional case, this power should be exercised. 16. The learned counsel would submit that even at the trial stage an application u/s 311 of Cr.P.C to tender additional evidence cannot be permitted as a matter of course only to fill-up lacuna and if that be the position the High Court sitting in revision at the 3rd stage cannot permit adduction of additional evidence or for that matter to remand the case to the trial court. Learned counsel for the accused is perfectly justified in his submission that the revisional power of the High Court cannot be exercised to allow the prosecution to plug-in the loop holes in its case as it would be causing injustice to the accused. 17. It is worthwhile to note that the revision petition was filed by the petitioner with a petition to condone a delay of 1999 days in re-presenting the criminal revision petition. True, the petition was allowed earlier, but the accused would contend that that also is a strong circumstance to Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 19 hold that there is no justification in the request now made by the de facto complainant to allow adduction of additional evidence to plug-in the loopholes of the prosecution case and to request for a remand to the trial court for that purpose. 18. The accused is the brother of the de facto complainant. The de facto complainant has already obtained a decree for money from the civil court though it is now stated to be pending in appeal. I find no reason to interfere with the judgment of acquittal passed by the learned Additional Session Judge. In the result; the appeal filed by the State and the revision petition filed by the de facto complainant are dismissed. N.K. BALAKRISHNAN, JUDGE. mns/smvd Crl.Appeal No.2018/05 & Crl.Rev.Pet.No.2786/08 20