IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1028 of 2002()
1. AJITHKUMAR S/O. KELUKUTY NAIR,
... Petitioner
Vs
1. REJINKUMAR S/O. ACHUTHAN, AGED 31/02,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.P.S.SREEDHARAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :11/06/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Crl.A.No.1028 of 2002
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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