IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 550 of 2006()
1. P.S.JOSEPH, PLATHOTTATHIL,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. NABEESA BEEVI,
For Petitioner :SRI.PRAKASH P.GEORGE
For Respondent :SRI.M.NARENDRA KUMAR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :05/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO.550 OF 2006 (C)
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Dated this the 5th day of June, 2009
O R D E R
Concurrent verdict of guilty rendered against the
revision petitioner for the offence punishable under Section
138 of the Negotiable Instruments Act, for short, the ‘N.I.Act’
is challenged in the revision. He was prosecuted for the above
offence on a complaint filed by the 2nd respondent. He had
pleaded not guilty. After trial, finding him guilty of the
offence, the learned Magistrate convicted him thereunder,
sentencing him to undergo simple imprisonment for six
months. In appeal, the learned Additional Sessions Judge
(Adhoc) Court-I, Pathanamthitta, confirmed the conviction, but
modified the sentence to imprisonment till the rising of the
court directing him to pay compensation of Rs.1,80,000/- to
the complainant with default term of simple imprisonment for
four months. Questioning the legality, propriety and
correctness of the conviction and sentence as aforesaid, the
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accused has preferred this revision.
2. Short facts necessary for disposing this revision may
be summed up thus: The accused owed Rs.1 lakh to the
complainant and towards discharge of that debt, he issued
Ext.P1 cheque for the sum, which on presentation before the
bank in due course, was dishonoured due to the reason
“payment stopped by the drawer” and then after issuing a
statutory notice intimating such dishonour and demanding the
sum covered by the instrument, prosecution was launched by
the complainant against the accused indicting him of the
offence punishable under Section 138 of the N.I.Act. The
accused, on appearance before court, denied the accusation
when the particulars of the offence were made known.
Complainant examined herself as PW1 and got marked
Exts.P1 to P9 to prove her case. The accused questioned
under Section 313 Cr.P.C., maintained his innocence. During
the cross examination of the complainant as PW1, he
advanced a defence that he had no money transaction with the
complainant. He had arranged a servant by name ‘Kunjumon’
CRL.R.P.550/06 3
to the complainant to attend to the works in her house, but,
later on, that servant in connivance with another committed
theft of valuables amounting to Rs.4.5 lakhs from that house.
Suspecting his involvement also in the theft, he was taken into
custody by the police and detained in the police lockup for
four days. He had lost two blank cheques and also Rs.300/-
kept in his purse while he was under detention of the police.
Complaint has been filed forging his signature and also
making fraudulent entries in one of such cheques by the
complainant. Another complaint has also been filed against
him by the complainant making use of the other cheque,
forging his signature and incorporating fraudulent entries for
a sum of Rs.6,55,000/-, before the Magistrate Court,
Ponkunnam. Copy of the cheque produced in that complaint
was confronted to the complainant (PW1) during his
examination and got exhibited in evidence as Ext.D1 in the
case.
3. The learned Magistrate, after appreciating the
materials produced, concluded that the case of the
CRL.R.P.550/06 4
complainant is established by the evidence tendered and that
the defence canvassed by the accused is unworthy of
acceptance. The accused was thereupon found guilty,
convicted and sentenced as indicated above, which in appeal,
was confirmed by the learned Sessions Judge with
modification of sentence imposed as indicated above.
4. I heard the learned counsel for the accused and also
the complainant. The learned counsel for the accused,
submitted that an application was moved in the appeal before
the Sessions Judge seeking permission to lead additional
evidence, but, it was disallowed. He pleaded for an
opportunity to let in additional evidence by remitting the case
after setting aside the conviction and sentence imposed
against the accused. The materials sought to be produced in
appeal related to the acquittal of the accused in the
connected case, that too, filed by the complainant claiming a
sum of Rs.6,55,000/- from the accused under a different
cheque, the prosecution of which was launched in a different
court. A copy of the judgment of acquittal with a copy of the
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F.I.R. in a crime case in respect of the theft committed in the
house of the complainant, were sought to be admitted as
additional evidence in appeal, but the petition moved for
reception of additional evidence, Crl.M.P.No.395/2005 was
dismissed by the learned Sessions Judge, submits the counsel.
The materials produced as additional evidence have much
significance in examining the trustworthiness of the complaint
and its rejection by the appellate court for the reason of delay,
according to the counsel, is not at all justified. Relying on
State of Gujurat v. Mohanlal Jitamalji Porwal ((1987) 2
SCC 364), it is contended that the delay taken in filing the
petition, after admission of the appeal, which was noted by the
court below as three years, is not at all material. The learned
counsel contended that the value and significance of the
additional evidence should have been given due consideration.
Rejection of the petition moved under Section 391 of Cr.P.C.,
solely on the ground of delay, it is submitted, was thoroughly
unjustifiable. Alternatively, it was contended that, in case,
this Court too is not inclined to provide a further opportunity,
still, on the materials tendered and in the proved facts and
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circumstances, the case advanced by the complainant is
unworthy of any merit and the conviction and sentence
imposed against the accused are totally unjustified and are
liable to be set aside. On the other hand, the learned counsel
for the complainant contended that the conviction of the
accused concurrently founded by the two inferior courts does
not suffer from any infirmity warranting interference by this
Court in exercise of revisional jurisdiction. Complainant has
proved her case by cogent legal evidence and the defence
canvassed by the accused was not substantiated by any
material but even on the face of itself shown to be unworthy of
any merit, and, according to the counsel, the revision lacks
any merit, and it is liable to be dismissed.
5. I have perused the records of the case giving
consideration to the submissions made by the counsel on both
sides and taking note that in revision, a reappreciation of the
evidence to examine the correctness of the findings formed by
the inferior courts is ordinarily not permissible unless it is
shown that the finding entered is illegal or so perverse that it
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could not have been formed on the materials produced. After
going through the judgment of the learned Magistrate and
also that of the learned Sessions Judge, I find that the two
courts have not appreciated the materials produced in the
proper perspective. The learned Magistrate finding no merit
in the defence canvassed by the accused, without referring to
the attenuating suspicious circumstances relating to Ext.P1
cheque, on which the complaint was filed, concluded that the
complainant has succeeded in proving the case against the
accused beyond the shadow of reasonable doubt. Complainant
in her evidence as PW1 admitted in unequivocal terms that
she had filed another complaint against the accused for a sum
of Rs.6,55,000/- in a different court and in respect of that
transaction, she collected a promissory note, a title deed and
also a copy of a title certificate (Pattayam) as security. It is
noticed, the appellate court also, referred to the documentary
evidence, but not appreciating the oral evidence tendered by
the complainant (PW1) and also other suspicious
circumstances presented in the case, and, then, concluded
that the complainant has succeeded in establishing her case
CRL.R.P.550/06 8
against the accused. What is seen from the judgment of the
learned Magistrate and also that of the learned Sessions Judge
is that after merely referring to the documentary material
tendered by the complainant and marked in evidence but not
subjecting them to scrutiny and without examining the merit
of the sworn testimony of the complainant (PW1) the
prosecution case has been accepted as proved. In a
prosecution under Section 138 of the N.I.Act, there is no
separate yardstick in appreciating evidence as different from
any other criminal case, where the onus is always on the
prosecution to prove its case, and it never shifts. Falsity of the
defence canvassed may have significance only in a case where
the materials tendered by the prosecution proves or atleast
generate strong suspicion of the complicity of the accused in
the offence imputed. Accused has a constitutional right to
remain silent and that will not absolve the prosecution from
discharging its burden to prove the case set up against him.
Unfortunately, in the present case, failure of the accused to
establish the defence canvassed by him and also the apparent
improbability in accepting the defence canvassed has
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persuaded the learned Magistrate and also the learned
Sessions Judge to accept the case of the complainant without
critically examining the merit of the complainant’s case in the
backdrop of the proved facts and circumstances, which cause
serious doubt on the veracity of the case presented by her.
Since the very object of vesting revisional jurisdiction with the
superior courts is to correct the infirmities and illegalities in
the orders of the inferior courts, and thus to avoid failure of
justice, after perusing the judgment of the court below and the
materials tendered in the case, I am persuaded that a review
of evidence in the revision is called for to avoid miscarriage of
justice.
6. Complainant was examined as PW1. She has alleged
in the complaint that Ext.P1 cheque was given in discharge of
a debt owed from the complainant. No more particulars of the
transaction giving rise to the debt are given in the complaint.
When examined in chief, she narrated in tune with the
allegations set out in the complaint. During her cross
examination, when she was questioned about the transaction
CRL.R.P.550/06 10
covered by Ext.P1 cheque, she would state that two days
before, she had withdrawn Rs.2 lakhs from the Urban
Co-operative Bank, from which Rs.1 lakh was given to the
accused. If her version is accepted, the transaction covered
by Ext.P1 cheque for a sum of Rs.1 lakh took place hardly two
days before. When she was questioned with respect to the
second cheque from the accused, she stated that the second
cheque for Rs.6,55,000/- was given after issuing Ext.P1
cheque. She specifically stated that the second cheque was
given on 5.11.2000 and being questioned further on the
consideration covered by that cheque it is her case that she
had then in her hand Rs.12 lakhs as the price received by sale
of her property, from which the sum covered by the second
cheque was given to the accused. Ext.D1 was admitted by her
as the photo copy of the second cheque for the sum of
Rs.6,55,000/-. Ext.D1 shows that it is dated 2.1.1999, the
same date appearing in Ext.P1 cheque also, discrediting her
version that the second cheque was given on 5.11.2000. A
stamp receipt purported to have been signed by the accused,
admitting the execution of Ext.P1 cheque was produced by the
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complainant and got marked as Ext.P8. When she was
questioned why such a stamp receipt was collected, she
asserted that it was taken to prevent the accused from
denying the execution of the cheque later. While giving the
second cheque, for a sum of Rs.6,55,000/-, according to the
complainant, she had taken a promissory note, copy of a title
deed for one acre of immovable propriety and also its
pattayam (title certificate) from the accused. She also
admitted that a theft had taken place in her house over which
on her complaint a crime was registered at Ranni Police
Station. When specific reference was made to Kunjumon, a
servant in her house as arranged by the accused and his
involvement in the theft, she denied the role of the accused in
arranging him as her servant but conceded that Kunjumon,
her servant, was also involved in the theft. Her evidence has
to be appreciated in the backdrop that to the statutory notice
issued on dishonour of the cheque with endorsement that
“payment stopped by the drawer” the accused had issued a
reply notice disputing the monetary transactions and setting
forth a case that he was detained by the police for four days
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pursuant to a theft in the house of the complainant and loss of
two cheque leaves kept in his purse while he was in custody.
Arranging a servant to the complainant and his involvement in
the theft were also stated in the reply notice as the reason for
his arrest and detention, suspecting his involvement too in the
crime, at the instance of the complainant. Despite such a
case set up right from inception, even under the reply notice
by the accused, which was reiterated by him during the trial
also, the complainant has not let in any material to show that
she had any money transaction with the accused at any point
of time and under that transaction two cheques were given by
him, one for Rs.1 lakh and the other for Rs.6,55,000/-. The
above circumstance alongwith the collection of a stamp
receipt (Ext.P8), taken with Ext.P1 cheque, generates
reasonable suspicion as to the genuineness of the transaction.
Two cheques, both showing the same date, for a total sum of
Rs.7,55,000/- with the documents admittedly taken as security,
as borne out by the evidence of the complainant (PW1), and
the filing of the second complaint in respect of the cheque of
Rs.6,55,000/- after its dishonour in a different court are other
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suspicious circumstances indicating that the transaction
alleged by the complainant is not bona fide and genuine. It is
admitted in the bar that the second complaint relating to the
original of Ext.D1 cheque for Rs.6,55,000/- after trial, has
ended in a judgment of acquittal in favour of the accused, and,
according to the learned counsel for the complainant, an
appeal preferred against that acquittal is pending before
this Court. Both the cheques are of the same date in the
absence of any material circumstance showing otherwise,
prima facie, indicate it must be from one and the same
transaction. The evidence that the transactions relating to
the two cheques are different as stated by the complainant
cannot be accepted on its face value. The discredited version
of the complainant and the suspicious circumstances
surrounding the transaction relating to the two cheques for a
substantial sum of Rs.7,55,000/- as borne out by her evidence
render the prosecution against the accused unworthy of any
merit.
7. Merely on the basis of the presumptions covered by
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the Statute and the burden cast for displacement of such
statutory presumptions by rebuttal evidence, it cannot be
stated that the case of the complainant deserves acceptance.
Just as in any other criminal case, in a complaint under
Section 138 of the N.I.Act, the burden is on the complainant to
prove his case. The accused failed to establish the defence
canvassed, and further, the defence so canvassed by him
appeared to be improbable and unacceptable, is not sufficient
to assist the complaint, nor even relevant when the
transaction set up by the complainant relating to the
instrument is shrouded in suspicious circumstances, prima
facie indicating that her case that the instrument was issued
in discharge of a loan is not true. Both the courts below have
not appreciated documentary evidence let in the case in the
light of the sworn testimony of the complainant, which is
found to be totally unworthy of any credence. She has
suppressed in the complaint and also in her evidence, the real
transaction, whatever she had with the accused. Her case
that Ext.P1 cheque was executed voluntarily by the accused in
discharge of a loan is thoroughly unbelievable in the proved
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facts of the case.
8. Totality of the facts and circumstances involved in the
case demonstrate that the transaction under which the
complainant obtained two cheques from the accused for a
total sum of Rs.7,55,000/-, for which she filed separate
complaints in two different courts is shrouded in suspicious
circumstances indicating the transaction is not genuine and
bona fide. In that backdrop, I find it unsafe to sustain the
conviction founded against the accused by the courts below,
and it is liable to be set aside. In reversal of the conviction
and sentence imposed against the accused by the court below,
he is found not guilty and acquitted of the offence under
Section 138 of the N.I.Act.
Revision is allowed.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.S.SATHEESACHANDRAN, J.
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CRL.R.P.NO.550 OF 2006 (C)
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O R D E R
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5th June, 2009