IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 24TH DAY OF JULY 2009/2ND SRAVANA 1931 CRA.No. 1485 of 2003 --------------------- CC.411/1999 of J.M.F.C, IDUKKI ....... APPELLANT/COMPLAINANT: TOMY, S/O JOSEPH, MUNDAKKATTU HOUSE, MANAPURAM KARAMA, THANKAMANI VILLAGE. BY ADV. SRI.K.A.ABDUL SALAM RESPONDENTS/ACCUSED: 1. T.M.GEORGE, THACKUMPARAYIL HOUSE, MANIYARANKUDY KARA, IDUKKI VILLAGE. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI.C.J.JOY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. --------------------------- Crl.A.No.1485 of 2003 --------------------------- Dated this the 24th July, 2009 O R D E R This appeal arises from an order of acquittal passed by the Magistrate Court. Appellant is the complainant and the first respondent is the accused in the said case. The offence alleged was under Section 138 of the Negotiable Instruments Act. 2. According to complainant, accused-first respondent borrowed Rs.85,000/- from complainant-appellant on 10.03.1999 on an undertaking that the amount will be repaid within a period of three months. When the amount was demanded after three months, accused issued a cheque dated 11.06.1999, drawn on the Federal Bank for Rs.85,000/- towards the discharge of the said debt. But the cheque, on presentation, was returned on 17.06.1999 with the endorsement “funds insufficient”. Thereafter, a lawyer notice was issued on 21.6.1999, demanding CRA 1485/2003 2 repayment. Though the notice was received by the accused on 28.06.1999, he failed to pay the amount and hence, a complaint was filed. 3. To prove the case of the complainant, PW1 was examined and Exts.P1 to P6 were marked. The accused denied his liability and took up a defence during the cross-examination of PW1 through various suggestions and also by adducing evidence on his side. He also gave a statement while question under Section 313 Code of Criminal Procedure. Exts.D1 to D5 were marked and those were also relied upon to prove his case. 4. Learned counsel for appellant contended that trial court committed a serious error in coming to a conclusion that the accused has a consistent case. The appreciation of evidence was perverse in entering such a conclusion in favour of the accused, it is submitted. In fact, the accused has no consistent case as per the materials placed on record and hence, acquittal of the accused on the ground that he has a consistent case is wrong, it is argued. 5. Learned counsel appearing for the first respondent- accused, however, argued that from the suggestions made to CRA 1485/2003 3 PW1 and as per the evidence of DW2, it is clear that the accused had a consistent case and hence, the finding entered into by the trial court cannot be interfered with. The trial court appreciated the evidence in the proper perspective and entered a finding that Ext.P1 cheque was given as a security for the loan transaction of Rs.20,000/- and the complainant manipulated the said cheque. 6. On hearing both sides and on going through the records in this case, I find that learned Magistrate entered a finding that the defence has a consistent case and that even in O.S.No.165/1999, his defence was identical to the defence taken up in this case. From a reading of the judgment, it can also be seen that the trial court relied upon the evidence of DW2, brother of the accused and held that no material was brought out in the cross-examination of DW2 to discard his version. 7. The evidence of DW2 was discussed in paragraph 9 of the judgment. On a reading of the judgment, it will appear that the trial court held that evidence of DW2 is consistent with the case set up by the accused. It is held that conduct of the accused in taking consistent defence lends credibility to his version. However, according to lower court, as per evidence of DW2, there CRA 1485/2003 4 was a money transaction between the complainant and DW2 and accused had entrusted the cheque belonging to him as a security for the payment of the amount, but the cheque was not returned even though the money was paid. It appears that the trial court was inferring that it was DW2 who had borrowed the amount. In fact, he did not clarify who has actually borrowed Rs.20,000/-, whether it was DW2 or accused. 8. Even if the findings of trial court are accepted (transaction was between DW2 and complainant), it is not understood how this is consistent with the case set by accused in statement made by him under Section 313 of Code of Criminal Procedure. As per the said statement, the transaction was between accused and complainant. The accused had no case while questioned under Section 313 Code of Criminal Procedure that Ext.P1 was given at a time when DW2 borrowed any amount from complainant. But, his case was that a cheque was given while accused himself borrowed Rs.20,000/- from complainant. His case before civil court was also similar. 9. The accused, while questioned under Section 313 Code of Criminal Procedure, stated as follows: “The accused borrowed an CRA 1485/2003 5 amount of Rs.20,000/- from the complainant by handing over R.C book relating to KL-7/M-4449 and a blank cheque and a white paper. The said amount was paid back with interest, but the cheque and the blank paper were not returned by the complainant and he stated that it was lost.” 10. In paragraph 2 of Ext.D1 (certified copy of the judgment in O.S.No.165/1999), civil court has reiterated the contentions of the accused, who was defendant in the case, as follows: “Defendant had some transactions with the said Tomy. A signed blank paper, cheque and R.C book of vehicle numbered KL7-M 4449 was entrusted to Tomy as security for borrowed amount. The amount was repaid and R.C book was returned. Tomy told defendant that the cheque and blank paper were already destroyed.” But, evidence of DW2, according to trial court, is different. 11. The trial court also proceeded to hold that Ext.D2 is the certified copy of the petition given by DW2 before the Circle Inspector of Police and it discloses that a complaint was given by DW2 when the complainant refused to give back Ext.P1 etc. But, what is revealed from Ext.D2 is that DW2 gave a complaint when CRA 1485/2003 6 “accused” started demanding money from DW2 and threatening him. His grievance was against accused, as per Ext.D2. But trial court entered a finding that Ext.D2 is consistent with the case set up by DW2 that the complaint was given when “complainant” demanded the cheque and the complainant refused to give back the cheque, etc. 12. It can also be seen that while PW1 was cross-examined, certain questions were put to him suggesting the defence. From those suggestions, it appears that accused's brother “Baby” had borrowed Rs.20,000/- from complainant by pledging R.C book of a jeep No.KL-7/M-4449 in the year 1997 and that when a demand was made for handing over the R.C book for payment of the amount, the cheque belonging to accused (Ext.P1) and a signed stamped white paper were given as security. 13. It was also suggested to PW1 that Rs.20,000/- was paid back by the said 'Baby' and that Baby had given a complaint to the Circle Inspector when the complainant refused to give back Ext.P1 and the signed paper etc. There is no evidence to show whether “Baby” and “DW2” are one and the same person. DW2's CRA 1485/2003 7 name is “T.M.Mathew” and nobody has a case that he is known as “Baby” also. 14. Thus, from the above, three sets of facts are revealed: One disclosed from statement under Section 313 Code of Criminal Procedure, another through suggestions made to PW1 and yet another version which came out from evidence of DW2, brother of accused. But trial court proceeded on the basis of evidence of DW2 and Ext.D2 to hold that the accused has a consistent case, as disclosed from the evidence of DW2 and that he is reliable etc. 15. In the light of the above discussion, it is clear that the court below committed a serious error in misreading evidence and records and entering perverse findings in respect of defence plea. It appears that trial court proceeded on certain assumptions, which are not supported by evidence, documents, allegations or materials available on record. The approach to the relevant issue was erroneous and perverse. Hence, the findings entered into by court below in support order of acquittal are not sustainable. 16. The matter requires re-consideration and fresh disposal. CRA 1485/2003 8 The trial court will consider the relevant aspects afresh and decide whether accused has committed the alleged offence or not. If the parties so require, they shall be given an opportunity to adduce such evidence, as the court below may deem fit and proper, to clarify the disputed aspects. In the result, the following order is passed: (i) The order of acquittal of accused-first respondent is set aside. (ii) This case is remanded to trial court for consideration and disposal in accordance with law, in the light of the observations made in this judgment. (iii) If the parties make any request for adducing evidence to clarify the relevant aspects, it will be open to the trial court to give an opportunity to both sides, in accordance with law, as the court may deem fit and proper. (iv) The parties shall appear before trial court on receipt of notice to their respective counsel. The Criminal Appeal is allowed. K.HEMA, JUDGE vgs. CRA 1485/2003 9 K.HEMA, J. ------------------------------ Crl.A.NO.1485 of 2003 ------------------------------ O R D E R 24.7.2009