IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 1028 of 2002() ------------------------------------- C.C.NO.501/1998 OF JUDICIAL FIRST CLASS MAGISTRATE I, S.BATHERY ........ APPELLANT(S): COMPLAINANT: ------------------------------------------------ AJITHKUMAR ,S/O. KELUKUTTY NAIR, ARUNALAYAM, S. BATHERY BY ADV. MR.P.S.SREEDHARAN PILLAI RESPONDENT(S): (RESPONDENT NO.1 HEREIN IS ACCUSED IN THE ABOVE C.C.)/STATE: --------------------------------------------------------------- 1. REJINKUMAR S/O. ACHUTHAN, AGED 31/02, PUTHIYADATHUKUNNEL VEEDU, NEAR N.J.HIGH SCHOOL, ILAYATTIL P.O., KODUVALLY, KOZHIKODE DISTRICT 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON 11/06/2009 DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1028 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 11th June, 2009 JUDGMENT Complainant is the appellant. His complaint filed under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') against the first respondent, after trial, ended in a judgment absolving the accused of the offence. Questioning the correctness and propriety of the judgment of acquittal rendered in favour of the accused, he has filed this appeal. 2. The case of the complainant in brief is thus: Towards discharge of a liability, the accused issued Ext.P1 cheque for a sum of Rs.2,50,000/- promising its encashment on presentation in due course. The cheque presented, however, was dishonoured with endorsement “payment was stopped by drawer”. Enquiry by the complainant disclosed that the accused had no sufficient funds in his account to honour the cheque. Statutory notice issued intimating the dishonour demanding the sum covered by the instrument to the accused was responded with a reply raising false contentions. Complainant, thereupon, launched prosecution against the accused for the offence under Section 138 of the N.I.Act filing the complaint. 3. The accused, on appearance, pleaded not guilty when the Crl.A.No.1028/02 - 2 - particulars of the offence were made known. Complainant examined himself as P.W.1 and two other witness as P.Ws.2 and 3. He also got marked Exts.P1 to P12 to prove his case. Accused questioned under Section 313 Cr.P.C. reiterating his innocence denied of having any transaction with the complainant. He examined two witnesses as D.Ws.1 and 2 the former to disprove the case of the complainant that Ext.P1 cheque was issued towards balance sale price of a motor vehicle in his favour and the latter to show that there was substantial difference in the specimen signature in the card maintained in the bank with that seen in Ext.P1 cheque, the signature of which was disputed as not having been subscribed by him. The learned Magistrate, after considering the materials produced, concluded that the complainant had not proved the due execution of Ext.P1 cheque by the accused and also that the transaction alleged by him relating to the instrument was not acceptable. The contention of the accused that there was variation of his signature in Ext.P1 cheque with the specimen signatures was found appealing to the court below which concluded that there is no proof that Ext.P1 was issued by the accused to the complainant in discharge of a legally existing debt. In that view of the matter, the accused was found not guilty and he was Crl.A.No.1028/02 - 3 - acquitted of the offence imputed. 4. I heard the learned counsel on both sides. Learned counsel for the complainant assailed the judgment of acquittal passed in favour of the accused as unsustainable under law and facts submitting that the evidence tendered in the case has been misappreciated by the learned Magistrate and that has resulted in miscarriage of justice. Ext.P7 agreement relating to the transaction between the complainant and the accused over the sale of a motor vehicle in which the issue of Ext.P1 cheque by the accused towards the balance sum payable on such sale, it is submitted, was duly proved in the case. But the court below on mere surmise and conjunctures discarded its evidentiary value. The case of the complainant regarding the sale transaction of the vehicle and issue of Ext.P cheque, it is submitted by the learned counsel, was disbelieved by the court for the reason that no material was produced to show that he was the registered owner of the vehicle overlooking the prevailing practice that ownership of motor vehicles often take place without change of names in R.C.Book, but, on the basis of sale letter and other documents. The case set up by the accused as to missing of his cheque book in the hotel of his father and the dispute regarding Crl.A.No.1028/02 - 4 - the signature in Ext.P1 cheque remained unsubstantiated by any convincing legal evidence, but, still the court below has accepted that defence, submits the counsel. Further opportunity sought by the plaintiff to examine the witness who had subscribed in Ext.P7 agreement to prove the sale transaction of the vehicle and issue of Ext.P1 cheque was declined by the learned Magistrate and it had resulted in denial of opportunity to the complainant in proving his case, is the further grievance of the complainant. On the other hand, the learned counsel for the accused contended that the judgment of acquittal passed by the court below does not suffer from any infirmity and requires only to be confirmed. When an enquiry on the complaint was proceeded by the Magistrate under Section 200 Cr.P.C. the complainant had stated that Ext.P1 cheque was issued towards discharge of a loan availed by the accused, but, later in evidence a contradictory version of the transaction was presented that the instrument was given towards the balance sale price over a motor vehicle sold to the accused producing Ext.P7 agreement. Accused had denied the execution of Ext.P7 agreement and also the sale transaction of the vehicle and no convincing evidence was adduced by the complainant to prove his case over the transaction canvassed. In Crl.A.No.1028/02 - 5 - such circumstances, the acquittal of the accused passed by the court below is proper, correct and valid and the appeal is devoid of any merit, submits the learned counsel. 5. I have considered the submissions of the counsel with reference to the materials produced in the case. The most significant question emerging for consideration is whether the complainant has proved due execution of Ext.P1 cheque and also the transaction relating to the issue of that cheque, both of which were disputed by him contending that the cheque book covering Ext.P1 cheque leaf was missing from the hotel of his father where it was kept by him and also that he had no transaction whatsoever with the complainant at any point of time. Complainant examined as P.W.1 gave evidence that Ext.P1 cheque was issued by the accused towards the balance sale consideration over the sale of his vehicle, a tempo challenger jeep to the accused. He produced Ext.P7 agreement to substantiate the sale transaction of the vehicle wherein the issue of Ext.P1 cheque towards the balance sale consideration due has been specifically made mention of. He was not the registered owner of the vehicle covered by Ext.P7 agreement, but some one else and no witness was examined to prove the sale transaction and issue of Ext.P1 cheque by Crl.A.No.1028/02 - 6 - the accused persuaded the learned Magistrate to hold that the evidence of the complainant is insufficient to prove his case that Ext.P1 cheque was duly executed and issued by the cheque towards discharge of a debt or liability to him. I am afraid that the learned Magistrate failed to take note of some material circumstances borne out by the records produced in the case which prima facie demonstrated that the defence canvassed by the accused was unworthy of any credence. The accused has issued a stop payment order to the bank before the presentation of Ext.P1 cheque. Other than a plea raised that the whole cheque book covering 10 cheque leaves was missing from the hotel of his father he has not produced a scrap of paper to show what was the instruction given to the bank to stop payment of the cheque or cheques presented as drawn by him. I have adverted to the above aspect taking note of the specific assertion of the accused in Ext.P6 reply notice sent in response to the statutory notice issued by the complainant on dishonour of Ext.P1 cheque. He had stated in the reply notice that his cheque book containing 10 leaves, bearing Nos.05391 to 05400, with all the leaves in blank and none signed by him, was missing from the hotel of his father and it came to his notice in January, 1998, and then he Crl.A.No.1028/02 - 7 - informed the bank for stop payment of the cheque leaves. Is there any truth in that defence has to be examined with reference to Ext.P10, the certified statement of accounts relating to his account maintained in the bank. Ext.P10 would disclose that one among the cheque, cheque No.05392 covered by his cheque book which was stated to have been missing was transacted for a sum of Rs.250/- as early as on 5.2.1996. So, one among the cheque leaves covered by the book was transacted through his account is a material circumstance discrediting the defence canvassed by him that the cheque book containing all 10 cheque leaves kept in blank form and none signed by him was missing. That also indicates that he could not have issued a stop payment order to the bank for stoppage of all the 10 cheque leaves in the book, as contended by him when one of them had already been transacted. 6. I do note that the falsity of the defence canvassed by the accused by itself is not sufficient to improve the case of the complainant. But, in examining the merits of the case advanced by the complainant and in appreciating his sworn testimony before the court which has withstood the cross examination of the accused, the falsity of the defence set up by the accused definitely has to be taken Crl.A.No.1028/02 - 8 - into consideration in forming a conclusion whether the case of the complainant deserve acceptance. It is too much to believe after examining Ext.P7 agreement that it was fabricated by the accused to sustain his case. Ext.P7 agreement shows that the stamp papers for executing that agreement was purchased in the name of the accused as early as on 21.8.1997. Specific mention of Ext.P1 cheque with the number and sum is stated in Ext.P7 agreement which according to the complainant was entered into on the sale transaction of his vehicle, a challenger tracks jeep, bearing registration No.KL-12/2627 with the accused for a sum of Rs.3,10,000/-. On the date of the transaction, the agreement would show a sum of Rs.60,000/- was paid and the rest agreed to be paid on or before 8th January, 1998 for which Ext.P1 cheque was executed by the accused and handed over to the complainant. In this connection, it is to be noted Ext.P1 cheque is dated 8.1.1998. Handing over of the registration certificate, sale letter, insurance tax token etc. to the accused on the sale transaction of the vehicle is also made mention of in Ext.P7 agreement. As rightly contended by the learned counsel for the complainant, the common prevailing practice in respect of sale transactions over vehicles is by way of handing over the sale letter, registration certificate, insurance Crl.A.No.1028/02 - 9 - tax token etc. for which the vendor need not be the registered owner shown in the registration certificate of the vehicle. Complainant was not the registered owner of the vehicle as recorded in the registration certificate of the vehicle is of no consequence because sale of motor vehicles is often carried out on the basis of possessory title handing over the connected documents. I find no reason whatsoever to discard the evidentiary value of Ext.P7 agreement which has been proved by the complainant, one of the parties involved in the transaction covered by that agreement. He has not examined any witness to prove the transaction and also the execution of the agreement by the accused has no value especially where the accused has not taken any step for forensic examination of the signatures which are disputed contending that they were not subscribed by him.` 7. The learned Magistrate has compared the signatures of the drawer in Ext.P1 with the admitted signatures of the accused in some documents, Ext.P5 acknowledgement card and Ext.D3 specimen signature card of the accused produced by D.W.2, which was maintained by the bank wherein the account relating to Ext.P1 was operated. In the impugned judgment, reference is also made that Crl.A.No.1028/02 - 10 - comparison was made with another document exhibited as Ext.D5, presumably it must be a mistake as Exts.D1 to D3 alone were exhibited by the accused. Strangely enough, no comparison was made by the learned Magistrate of the signature appearing in Ext.P1 with the signatures of the accused seen in Ext.P7 agreement. Signature of the accused in Ext.P5 acknowledgement card and his vakkalath for comparison with the signature in Ext.P1 by the learned Magistrate to determine whether Ext.P1 had been signed by the accused, no doubt, was a futile exercise. No relevance could have been given to the signature of the accused in Ext.P5 acknowledgement card and vakkalath which have got only self serving value and, further, those signatures were subscribed by the accused after the dishonour of Ext.P1 cheque. Strangely enough, the learned Magistrate has also taken the statement of P.W.1 in his evidence that there is difference in the signature of Ext.P1 and P5 acknowledgement card of the accused as a circumstance justifying his conclusion that the signature in Ext.P1 cheque differed from the signatures of the accused in other documents. The accused who disputed his signature in Ext.P1 has not taken any step to substantiate his plea of not signing that instrument was lost sight of Crl.A.No.1028/02 - 11 - by the learned Magistrate when he proceeded to compare the signature appearing in Ext.P1 with the signatures of the accused in some documents of which other than Ext.D3 specimen card could have been given any value for the purpose of comparison. I fail to understand why the learned Magistrate has not verified the signature in Ext.P1 with Ext.P7 agreement, the stamp papers which had been purchased in the name of the accused nearly four months prior to the presentation of Ext.P1 cheque before the bank. No burden was cast upon the complainant to prove that the signature appearing in Ext.P1 was that of the accused as it was for the accused to establish his defence that the instrument admittedly covered by the account maintained by him was not signed by him. To sustain his case that the instrument was forged and his signature was fraudulently subscribed by someone else in Ext.P1 instrument as contended by the accused, he should establish it by taking steps for sending the document for forensic examination with such other documents containing his signatures subscribed at an anterior point of time earlier to Ext.P1. No such step was taken by the accused other than causing the production of Ext.D3 specimen signature card relating to his account which is hardly sufficient to show that Ext.P1 instrument Crl.A.No.1028/02 - 12 - was not signed by him. He has not even made any attempt to substantiate his defence over the denial of his signature in Ext.P1 cheque. Opinion given by D.W.2, the Secretary of the Bank that the signature in Ext.P1 differed from the signatures of the accused in Ext.D3 specimen card, which, of course, the learned Magistrate has not taken into account, is unworthy of any value. 8. The accused has examined a witness as D.W.1 and through him got marked photo copy of the R.C.Book of the vehicle KL- 12/2627 covered by Ext.P7 agreement. The attempt of the accused, it appears, was to show that at the time of Ext.P7 agreement one K.A.Mohammed was the registered owner of the vehicle for which he relied on the endorsement in the R.C.Book separately marked as Ext.D2(a). Whatever be the attempt of the accused to show that the complainant was not the registered owner and as such he was incapable of effecting of a transfer of the vehicle and so much so, authenticity of Ext.P7 should be doubted is shown to be bereft of any value by the evidence of D.W.1. The witness asserted that he is the owner in possession of the vehicle though ownership of the vehicle is shown in the name of another person. He would also state that the usual practice of sale transaction of the vehicle is done by handing Crl.A.No.1028/02 - 13 - over the agreement and a signed sale paper and not necessarily by change of ownership in the registration certificate of the vehicle. The witness would further state that the R.C. ownership is different from ownership of the vehicle with possession. When the sale paper given by the previous owner is duly filled up and presented at the R.T.O.Office, necessary changes are made in the R.C.Book regarding ownership, but, even before, on the basis of the sale document and other documents regarding the possession of the vehicle, ownership can be legally claimed over the vehicle. The defence of the accused is seen shattered by the evidence of his own witness D.W.1. Needless to point out that ownership recorded in registration certificate is not the sole criteria for having ownership over a vehicle which can be claimed on the basis of possession over the vehicle with relevant documents. A close scrutiny of the materials produced in the case would show that other than putting forth some suggestive questions when the complainant was examined as P.W.1 disputing the signature in Ext.P1 and also the sale transaction over the vehicle and impeaching the validity of Ext.P7 agreement contending that it is a forged document, the accused has not placed any material worthmentioning to discredit the evidence of Crl.A.No.1028/02 - 14 - the complainant. The evidence of his witnesses D.Ws.1 and 2, that of the former is totally destructive of his defence and the latter, the Secretary of the Bank, has innocuous value as his opinion regarding the difference in the signature in Ext.P1 cheque with those in the specimen card (Ext.D3) deserve to be noticed only for its rejection as he has no expertise to express such opinion. 9. The complainant had stated during the enquiry under Section 200 Cr.P.C. on presentation of his complaint that Ext.P1 cheque had been issued towards discharge of debt in a loan transaction which was highlighted by the learned counsel for the accused to contend that a contradictory version was presented by him at the time of trial, in the given facts of the case and materials tendered, has no significance. He was answering the questions put by the Magistrate during the enquiry under Section 200 Cr.P.C. has to be taken note of in appreciating the submissions made at that point of time with his sworn testimony when examined before the court in the trial of the case. Statement made by the complainant that Ext.P1 cheque was issued in respect of discharge of a debt utmost has to be treated as a mistake not affecting the merit of his case when he has produced cogent and convincing evidence that the cheque was issued by the Crl.A.No.1028/02 - 15 - accused in discharge of a liability arising from a sale transaction of a motor vehicle. Sworn testimony of the accused supported by the materials produced, especially, Ext.P7 agreement deserved acceptance in the proved facts and circumstances of the case. The learned Magistrate went wrong in holding that the complainant has not proved due execution of the cheque by the accused and that conclusion formed on the basis of comparison of the signature in Ext.P1 with Ext.P5 acknowledgement card and vakkalath and Ext.D3 specimen card of the accused and finding fault with the complainant for not proving the sale transaction of the vehicle despite production of Ext.P7 agreement is patently erroneous and unsustainable under law and facts. I find, the complainant has established his case with cogent and convincing legal evidence and the defence canvassed by the accused disputing his signature in Ext.P1 cheque and also liability under the sale transaction covered by Ext.P7 agreement in respect of which Ext.P1 was issued, is totally false. So much so, in reversal of the order of acquittal rendered in favour of the accused, he is found guilty and convicted of the offence under Section 138 of the N.I.Act. 7. Having regard to the nature of the offence, falling under Section 138 of the N.I.Act, I am of the view that incarceration of the Crl.A.No.1028/02 - 16 - accused in prison for a term is not called for to advance the ends of justice. Accused is sentenced to undergo imprisonment till the rising of the court, and to pay a sum of Rs.2,50,000/- as compensation under Section 357(3) of the Cr.P.C. to the complainant within three months from the date of this judgment. In default of payment of compensation as directed, the accused shall undergo simple imprisonment for four months. The accused shall appear and his sureties shall produce him before the Judicial Magistrate of First Class-I, S.Bathery on 15th September, 2009, and the learned Magistrate shall execute the sentence as directed. Appeal is allowed as above. srd S.S. SATHEESACHANDRAN, JUDGE