IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST DECEMBER, 2011 / 30TH AGRAHAYANA, 1933 CRL.A.No. 1821 of 2003 ------------------------------- (AGAINST THE ORDER IN CRA.157/1994 of ADDL.SESSIONS COURT, KOTTAYAM) (ORDER IN CC NO.348/89 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANJIRAPPALLY) APPELLANT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------ N.C.BOSE, KAMALALAYATHIL HOUSE, VADEKKUMBHAGOM KARA, CHIRAKKAKADAVU. BY ADV. SRI.M.NARENDRA KUMAR RESPONDENTS/APPELLANT/ACCUSED & SECOND RESPONDENT: -------------------------------------------------------------------------------------------- 1. JOSE ANTONY, S/O.ANTONY, JEERAKATHIL HOUSE, ELAMKULAM KARA, ELAMKULAM VILLAGE. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.SERGI JOSEPH THOMAS FOR R1 BY PUBLIC PROSECUTOR SMT.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1821 of 2011 ---------------------------------------- Dated this the 21st day of December, 2011 J U D G M E N T The complainant in his third round litigation preferred this appeal aggrieved by the judgment dated 8.12.1999 in Crl.A.No.157 of 1994 of the court of Session, Kottayam Division by which the learned Sessions Judge interfered with the order of conviction and sentence imposed by the trial court viz., Judicial First Class Magistrate Court-I, Kanjirappally in C.C.No.348 of 1989, which is a case instituted upon the complaint of the appellant connected with the alleged dishonour of Ext.P3 cheque dated 11.10.1989 covering an amount of Rs.35,000/-. 2. The case of the complainant is that towards the discharge of the liability connected with an agreement i.e., Ext.P1, the accused issued Ext.P3 cheque dated 11.10.1989 for an amount of Rs.35,000/- which when presented for encashment, returned with endorsement 'refer to drawer' due to insufficient fund in the account of the accused Crl.A.No.1821 of 2011 :-2-: and the accused has not repaid the amount in spite of the statutory notice and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, filing a complaint, the complainant approached the Judicial First Class Magistrate Court-I, Kanjirappally and on taking cognizance, C.C.No.348 of 1989 was instituted. During the trial of the case, PWs.1 to 3 were examined from the side of the complainant and Exts.P1 to P9 were marked. From the side of the defence, DWs.1 to 6 were examined and produced Exts.D1 to D8 documents. Finally, the trial court has found that the accused is guilty of the offence punishable under Section 138 of the N.I.Act and accordingly, he is convicted therein and sentenced to undergo rigorous imprisonment for six months. It is relevant to note that no appeal or revision is filed by the complainant in not awarding any compensation to the complainant. 3. However, the accused preferred an appeal before the Sessions Court challenging the findings, conviction and sentence of Crl.A.No.1821 of 2011 :-3-: the trial court. The appellate court by judgment dated 8.12.1999 set aside the conviction and sentence imposed on the accused and allowed the appeal. It is the above findings and order of the lower appellate court challenged in this appeal at the instance of the complainant. 4. I have heard Sri.Narendra Kumar, learned counsel for the appellant and Sri.Sergi Joseph Thomas, learned counsel appearing for the first respondent. 5. Learned counsel, supporting the findings of the trial court judgment, submitted that the lower appellate court went wrong in holding that the cheque was presented and the prosecution was laid by the complainant for coercing and compelling the accused to discharge his loan amount with unconscionable interest and the cheque has been obtained in blank form with signature. According to the learned counsel, in the absence of any evidence, the appellate court has committed an error in holding that there are financial transactions between the complainant and the accused with respect to the motor vehicle. According to the learned counsel, the lower appellate court Crl.A.No.1821 of 2011 :-4-: committed wrong in concluding that there was transaction related to the hypothecation or charge over transport vehicles merely on the basis of the provisions contained in Ext.P1 agreement. According to the learned counsel, the appellate court failed in extending the benefit under Section 139 of the N.I.Act in favour of the complainant. It is the further submission of the learned counsel that in spite of the finding that the case of the defence regarding the loss of cheque book is false, the appellate court has gone wrong in not finding that the accused issued a cheque in discharge of legal liability. According to the learned counsel, the appellate court failed to consider Ext.P2 letter issued by the accused acknowledging the liability and issuance of cheque. It is also the submission of the learned counsel appearing for the appellant that the appellate court went wrong in accepting the case of the defence regarding the loss of cheque book on the basis of Ext.D2 letter. It is also the submission of the learned counsel that the story put forward by the defence regarding the loss of cheque book cannot be given any weightage because Ext.D6 intimation was given Crl.A.No.1821 of 2011 :-5-: belatedly after four years. Thus, according to the learned counsel for the appellant, the lower appellate court went wrong in interfering with the finding, conviction and sentence imposed by the trial court against the respondent/accused. 6. On the other hand, the leaned counsel for the respondent submitted that the findings of the lower appellate court is based upon the available materials and evidence on record and the accused has succeeded in making out a probable case which was accepted by the appellate court. Learned counsel submitted that the complainant has miserably failed to prove the transaction and the liability, which is claimed to have arose out of Ext.P1 agreement. According to the learned counsel, the evidence of the complainant are not sufficient to hold that the payment, safeguarded by the provisions of Ext.P1 agreement, was not complied with and no payment was made to the complainant. Thus, according to the counsel, the liability is not proved. It is the further submission of the learned counsel that even though Ext.P1 agreement is not properly proved, the evidence Crl.A.No.1821 of 2011 :-6-: adduced by the defence would show that he had discharged the entire liability arising out of Ext.P1 agreement. It is the further submission of the learned counsel that the accused has succeeded in establishing its case that the cheque in question was pertaining to the cheque book which lost during the year 1989 and in support of the above contention, learned counsel has pointed out that Ext.P3 cheque is dated 11.10.1989 whereas Ext.D6 intimation dated 18.5.1989 would show that the factum of loss of cheque book has been intimated to the accused/bank in time. It is also pointed out that in pursuance of Ext.D6 notice dated 18.5.1989, the bank has issued Ext.D2 dated 3.6.1989 requiring the accused to contact the bank personally to close the account. Thus, according to the learned counsel, the lower appellate court has considered the above case of the defence in its proper perspective and accepted the same as per the discussions and findings of the appellate court which can be seen from paragraphs 8 and 9 of the judgment of the appellate court. According to the learned counsel, the appellate court has assigned several reasons on the basis Crl.A.No.1821 of 2011 :-7-: of the judicial scrutiny of the evidence and materials on record and such reasonings and findings cannot be treated as perverse or illegal so as to interfere with the order of acquittal recorded by the appellate court. Thus, according to the learned counsel, there is no scope for any interference with the order of acquittal recorded by the trial court. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the first respondent and also gone through the judgment of the appellate court as well as the trial court and the materials referred to therein. 8. In the light of the rival arguments of the learned counsel for the appellant and the first respondent and in the light of the decision of the appellate court based upon the materials and evidence referred to therein, the question to be considered is whether the appellant has succeeded in making out a case so as to interfere with the findings of the appellate court and the order of acquittal recorded therein. 9. In the light of the evidence and materials, it can be seen Crl.A.No.1821 of 2011 :-8-: that the complainant is a financier who is carrying out financial dealings. The case of the complainant is that the accused borrowed the amount on the basis of Ext.P1 agreement and when the amount became due, the accused issued Ext.P3 cheque covered by Ext.P2 letter. On the other hand, the contention of the accused is that the accused has not issued Ext.P3 cheque to the complainant connected with any transaction as claimed by the complainant. According to the accused, he had financial transaction with the complainant, but the same was cleared as per the evidence brought on record from the side of the defence. It is also the defence version that Ext.P3 cheque is the one which was lost from his possession during the year 1989. According to me, the case of the complainant and his evidence has to be examined and evaluated in the above backdrop of the defence. 10. It is beyond dispute that as per Ext.P1 agreement, the accused has to repay the loan amount with 18% interest in instalments at the rate of Rs.100/- per day and the interest has to be calculated on every completion of three months. It is also provided in Ext.P1 Crl.A.No.1821 of 2011 :-9-: agreement about the refund of the amount paid as vehicle tax with respect to bus No.KLT 3471 and to be adjusted in the loan amount on that sum being collected from the registered owner of the vehicle. The appellate court has found that the registered owner is not a party to Ext.P1 agreement. But, it was found that the money transaction has some bearing with respect to a motor vehicle as per Ext.P1 agreement. If the case of the complainant is that the amount was due from the accused in view of the terms of Ext.P1 agreement, he has to adduce evidence to that effect. But, absolutely, there is no evidence to show that he has not received any amount based upon the provisions contained in Ext.P1 agreement and he has also not produced any evidence to show that he had taken steps towards the realisation of the amount on the basis of the provisions contained in Ext.P1 agreement. Thus, going by the terms of EXt.P1 agreement, according to me, the complainant has miserably failed to prove the consideration and liability. But, it is relevant to note that though the accused has not admitted the transaction as claimed by the complainant on the basis of Crl.A.No.1821 of 2011 :-10-: Ext.P1 agreement, he had admitted that there was transaction with the complainant and towards that transaction, he had cleared all the liabilities and in support of the above version of the accused, the accused has produced Ext.D5 series documents. The above evidence of the defence remained intact and therefore, whatever be the liability connected with the transaction admitted by the accused, stands discharged and the complainant has no further grievance about the same and he has no case that those payments are connected with the transaction governed by Ext.P1. Thus, it can be seen that the complainant has miserably failed to prove with sufficient evidence regarding the transaction which he claimed and the liability of the accused to pay Rs.35,000/- to the complainant. 10. Now let us examine whether the complainant has succeeded in proving the execution and issuance of Ext.P3 cheque. The specific case of the complainant is that towards the discharge of the liability that arising out of Ext.P1 agreement, he had sent PW3 to meet the accused and thus, the accused entrusted Ext.P3 cheque with Crl.A.No.1821 of 2011 :-11-: PW3 as per Ext.P2 covering letter. The complainant has no case that Ext.P3 cheque was filled up by the accused and he is not aware as to who made the endorsement in Ext.P3 cheque. The evidence of PW3 is not sufficient to hold that it was accused who made endorsement in Ext.P3 cheque. So, regarding the execution of Ext.P3 cheque, there is no acceptable and legal evidence. It is true that Ext.P3 contained the signature of the accused, but mere presence of the signature of the account holder or the drawer is not sufficient to hold that the drawer has executed the cheque. In this juncture, it is relevant to note that according to the complainant, the accused, while handing over Ext.P3 cheque, issued Ext.P2 letter also addressing the complainant. As rightly pointed out by the counsel for the respondent, if the accused is capable of and actually written Ext.P2 letter, it is quite unbelievable that he had given a blank cheque without making the endorsement in Ext.P3. Therefore, the only conclusion that can be drawn is that the complainant has miserably failed to prove the execution and issuance of the cheque in favour of the complainant as claimed by him. Crl.A.No.1821 of 2011 :-12-: 11. In this juncture, it is relevant to note that in the absence of any evidence or materials regarding the execution and issuance of cheque, the case of the accused regarding the loss of cheque leaves has a vital bearing. As I indicated earlier, according to the accused, the cheque book which contained Ext.P3 cheque leaf was issued from the bank during the year 1989 and the same was lost during the month of May.1989. The said fact was brought to the notice of his banker as per Ext.D6 intimation. Ext.D6 intimation is a contemporary document issued much earlier to Ext.P6 lawyer notice dated 15.10.1989. It is pertinent to note that Ext.P1 agreement is dated 15.6.1989 and Ext.D6 intimation was given on 18.5.1989 about one month back from the date of Ext.P1 agreement and four months back from the date of Ext.P6 lawyer notice. Even though there is some discrepancy in the case set up by the defence regarding the loss of the cheque book, the materials available on record are sufficient to hold that the accused has succeeded in making out a probable case. It is also relevant to note that the falsity of the defence case is not a ground to replace the Crl.A.No.1821 of 2011 :-13-: burden of the prosecution to prove its case beyond reasonable doubt. In the present case, I have already referred to the evidence and materials and came to a conclusion that the complainant has miserably failed to prove the execution and issuance of the cheque. In the light of the above discussion and materials and evidence referred to above, I am of the view that the lower appellate court is correct in its finding and setting aside the conviction and sentence imposed on the respondent as per the judgment of the trial court. The above findings, according to me, are based upon the evidence and materials on record and on full appreciation of the same in its correct perspective and by assigning reasons, which cannot be treated as perverse or illegal so as to interfere with the same. In the result, there is no merit in this appeal and the same is dismissed, accordingly. V.K.MOHANAN, MBS/ Judge Crl.A.No.1821 of 2011 :-14-: V.K.MOHANAN, J. Crl.A.No.1821 of 2011 :-15-: CRL.A.No. 434 OF 2003 JUDGMENT Dated:11.11.2011 Crl.A.No.1821 of 2011 :-16-: