{"id":143792,"date":"2009-06-05T00:00:00","date_gmt":"2009-06-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-s-joseph-vs-state-of-kerala-on-5-june-2009"},"modified":"2015-08-16T11:07:37","modified_gmt":"2015-08-16T05:37:37","slug":"p-s-joseph-vs-state-of-kerala-on-5-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-s-joseph-vs-state-of-kerala-on-5-june-2009","title":{"rendered":"P.S.Joseph vs State Of Kerala on 5 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
P.S.Joseph vs State Of Kerala on 5 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 550 of 2006()\n\n\n1. P.S.JOSEPH, PLATHOTTATHIL,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n2. NABEESA BEEVI,\n\n                For Petitioner  :SRI.PRAKASH P.GEORGE\n\n                For Respondent  :SRI.M.NARENDRA KUMAR\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :05\/06\/2009\n\n O R D E R\n              S.S.SATHEESACHANDRAN, J.\n                  -------------------------------\n              CRL.R.P.NO.550 OF 2006 (C)\n                -----------------------------------\n          Dated this the 5th day of June, 2009\n\n                          O R D E R\n<\/pre>\n
     Concurrent verdict of guilty rendered against the<\/p>\n
revision petitioner for the offence punishable under Section<\/p>\n
138 of the Negotiable Instruments Act, for short, the ‘N.I.Act’<\/p>\n
is challenged in the revision. He was prosecuted for the above<\/p>\n
offence on a complaint filed by the 2nd respondent. He had<\/p>\n
pleaded not guilty.     After trial, finding him guilty of the<\/p>\n
offence, the learned Magistrate convicted him thereunder,<\/p>\n
sentencing    him to undergo simple imprisonment for six<\/p>\n
months.   In appeal, the learned Additional Sessions Judge<\/p>\n
(Adhoc) Court-I, Pathanamthitta, confirmed the conviction, but<\/p>\n
modified the sentence to imprisonment till the rising of the<\/p>\n
court directing him to pay compensation of Rs.1,80,000\/- to<\/p>\n
the complainant with default term of simple imprisonment for<\/p>\n
four months.      Questioning the legality, propriety and<\/p>\n
correctness of the conviction and sentence as aforesaid, the<\/p>\n
CRL.R.P.550\/06                   2<\/span><\/p>\n
accused has preferred this revision.\n<\/p>\n<\/p>\n
         2. Short facts necessary for disposing this revision may<\/p>\n
be summed up thus:         The accused owed Rs.1 lakh to the<\/p>\n
complainant and towards discharge of that debt, he issued<\/p>\n
Ext.P1 cheque for the sum, which on presentation before the<\/p>\n
bank in due course, was dishonoured due to the reason<\/p>\n
“payment stopped by the drawer” and then after issuing a<\/p>\n
statutory notice intimating such dishonour and demanding the<\/p>\n
sum covered by the instrument, prosecution was launched by<\/p>\n
the complainant against the accused indicting him of the<\/p>\n
offence punishable under Section 138 of the N.I.Act.          The<\/p>\n
accused, on appearance before court, denied the accusation<\/p>\n
when the particulars of the offence were made known.<\/p>\n
Complainant examined herself as PW1 and got marked<\/p>\n
Exts.P1 to P9 to prove her case.        The accused questioned<\/p>\n
under Section 313 Cr.P.C., maintained his innocence. During<\/p>\n
the cross examination of the complainant as PW1,              he<\/p>\n
advanced a defence that he had no money transaction with the<\/p>\n
complainant. He had arranged a servant by name ‘Kunjumon’<\/p>\n
CRL.R.P.550\/06                  3<\/span><\/p>\n
to the complainant to attend to the works in her house, but,<\/p>\n
later on, that servant in connivance with another committed<\/p>\n
theft of valuables amounting to Rs.4.5 lakhs from that house.<\/p>\n
Suspecting his involvement also in the theft, he was taken into<\/p>\n
custody by the police and detained in the police lockup for<\/p>\n
four days. He had lost two blank cheques and also Rs.300\/-<\/p>\n
kept in his purse while he was under detention of the police.<\/p>\n
Complaint has been filed forging his signature and also<\/p>\n
making fraudulent entries in one of such cheques by the<\/p>\n
complainant. Another complaint has also been filed against<\/p>\n
him by the complainant making use of the other cheque,<\/p>\n
forging his signature and incorporating fraudulent entries for<\/p>\n
a sum of Rs.6,55,000\/-, before the Magistrate Court,<\/p>\n
Ponkunnam. Copy of the cheque produced in that complaint<\/p>\n
was confronted to the complainant (PW1)            during his<\/p>\n
examination and got exhibited in evidence as Ext.D1 in the<\/p>\n
case.\n<\/p>\n<\/p>\n
         3.    The learned Magistrate, after appreciating the<\/p>\n
materials produced,       concluded  that  the   case of the<\/p>\n
CRL.R.P.550\/06                   4<\/span><\/p>\n
complainant is established by the evidence tendered and that<\/p>\n
the defence canvassed by the accused is unworthy of<\/p>\n
acceptance.       The accused was thereupon found guilty,<\/p>\n
convicted and sentenced as indicated above, which in appeal,<\/p>\n
was       confirmed  by   the  learned   Sessions   Judge  with<\/p>\n
modification of sentence imposed as indicated above.<\/p>\n
         4. I heard the learned counsel for the accused and also<\/p>\n
the complainant.       The learned counsel for the accused,<\/p>\n
submitted that an application was moved in the appeal before<\/p>\n
the Sessions Judge seeking permission to lead additional<\/p>\n
evidence, but, it was disallowed.          He pleaded for an<\/p>\n
opportunity to let in additional evidence by remitting the case<\/p>\n
after setting aside the conviction and sentence imposed<\/p>\n
against the accused. The materials sought to be produced in<\/p>\n
appeal related to the acquittal of the accused in the<\/p>\n
connected case, that too, filed by the complainant claiming a<\/p>\n
sum of Rs.6,55,000\/- from the accused under a different<\/p>\n
cheque, the prosecution of which was launched in a different<\/p>\n
court. A copy of the judgment of acquittal with a copy of the<\/p>\n
CRL.R.P.550\/06                  5<\/span><\/p>\n
F.I.R. in a crime case in respect of the theft committed in the<\/p>\n
house of the complainant, were sought to be admitted as<\/p>\n
additional evidence in appeal, but the petition moved for<\/p>\n
reception of additional evidence, Crl.M.P.No.395\/2005 was<\/p>\n
dismissed by the learned Sessions Judge, submits the counsel.<\/p>\n
The materials produced as additional evidence have much<\/p>\n
significance in examining the trustworthiness of the complaint<\/p>\n
and its rejection by the appellate court for the reason of delay,<\/p>\n
according to the counsel, is not at all justified. Relying on<\/p>\n
State of Gujurat v. Mohanlal Jitamalji Porwal<\/a> ((1987) 2<\/p>\n
SCC 364), it is contended that the delay taken in filing the<\/p>\n
petition, after admission of the appeal, which was noted by the<\/p>\n
court below as three years, is not at all material. The learned<\/p>\n
counsel contended that the value and significance of the<\/p>\n
additional evidence should have been given due consideration.<\/p>\n
Rejection of the petition moved under Section 391 of Cr.P.C.,<\/p>\n
solely on the ground of delay, it is submitted, was thoroughly<\/p>\n
unjustifiable. Alternatively, it was contended that, in case,<\/p>\n
this Court too is not inclined to provide a further opportunity,<\/p>\n
still, on the materials tendered and in the proved facts and<\/p>\n
CRL.R.P.550\/06                    6<\/span><\/p>\n
circumstances, the case advanced by the complainant is<\/p>\n
unworthy of any merit and the conviction and sentence<\/p>\n
imposed against the accused are totally unjustified and are<\/p>\n
liable to be set aside.  On the other hand, the learned counsel<\/p>\n
for the complainant contended that the conviction of the<\/p>\n
accused concurrently founded by the two inferior courts does<\/p>\n
not suffer from any infirmity warranting interference by this<\/p>\n
Court in exercise of revisional jurisdiction. Complainant has<\/p>\n
proved her case by cogent legal evidence and the defence<\/p>\n
canvassed by the accused was not substantiated by any<\/p>\n
material but even on the face of itself shown to be unworthy of<\/p>\n
any merit, and, according to the counsel, the revision lacks<\/p>\n
any merit, and it is liable to be dismissed.\n<\/p>\n<\/p>\n
         5.   I have perused the records of the case giving<\/p>\n
consideration to the submissions made by the counsel on both<\/p>\n
sides and taking note that in revision, a reappreciation of the<\/p>\n
evidence to examine the correctness of the findings formed by<\/p>\n
the inferior courts is ordinarily not permissible unless it is<\/p>\n
shown that the finding entered is illegal or so perverse that it<\/p>\n
CRL.R.P.550\/06                   7<\/span><\/p>\n
could not have been formed on the materials produced. After<\/p>\n
going through the judgment of the learned Magistrate and<\/p>\n
also that of the learned Sessions Judge, I find that the two<\/p>\n
courts have not appreciated the materials produced in the<\/p>\n
proper perspective. The learned Magistrate finding no merit<\/p>\n
in the defence canvassed by the accused, without referring to<\/p>\n
the attenuating suspicious circumstances relating to Ext.P1<\/p>\n
cheque, on which the complaint was filed, concluded that the<\/p>\n
complainant has succeeded in proving the case against the<\/p>\n
accused beyond the shadow of reasonable doubt. Complainant<\/p>\n
in her evidence as PW1 admitted in unequivocal terms that<\/p>\n
she had filed another complaint against the accused for a sum<\/p>\n
of Rs.6,55,000\/- in a different court and in respect of that<\/p>\n
transaction, she collected a promissory note, a title deed and<\/p>\n
also a copy of a title certificate (Pattayam) as security. It is<\/p>\n
noticed, the appellate court also, referred to the documentary<\/p>\n
evidence, but not appreciating the oral evidence tendered by<\/p>\n
the       complainant (PW1)     and    also  other   suspicious<\/p>\n
circumstances presented in the case, and, then, concluded<\/p>\n
that the complainant has succeeded in establishing her case<\/p>\n
CRL.R.P.550\/06                  8<\/span><\/p>\n
against the accused. What is seen from the judgment of the<\/p>\n
learned Magistrate and also that of the learned Sessions Judge<\/p>\n
is that after merely referring to the documentary material<\/p>\n
tendered by the complainant and marked in evidence but not<\/p>\n
subjecting them to scrutiny and without examining the merit<\/p>\n
of the sworn testimony of the complainant (PW1) the<\/p>\n
prosecution case has been accepted as proved.               In a<\/p>\n
prosecution under Section 138 of the N.I.Act, there is no<\/p>\n
separate yardstick in appreciating evidence as different from<\/p>\n
any other criminal case, where the onus is always on the<\/p>\n
prosecution to prove its case, and it never shifts. Falsity of the<\/p>\n
defence canvassed may have significance only in a case where<\/p>\n
the materials tendered by the prosecution proves or atleast<\/p>\n
generate strong suspicion of the complicity of the accused in<\/p>\n
the offence imputed.     Accused has a constitutional right to<\/p>\n
remain silent and that will not absolve the prosecution from<\/p>\n
discharging its burden to prove the case set up against him.<\/p>\n
Unfortunately, in the present case, failure of the accused to<\/p>\n
establish the defence canvassed by him and also the apparent<\/p>\n
improbability in accepting the defence canvassed has<\/p>\n
CRL.R.P.550\/06                  9<\/span><\/p>\n
persuaded the learned Magistrate and also the learned<\/p>\n
Sessions Judge to accept the case of the complainant without<\/p>\n
critically examining the merit of the complainant’s case in the<\/p>\n
backdrop of the proved facts and circumstances, which cause<\/p>\n
serious doubt on the veracity of the case presented by her.<\/p>\n
Since the very object of vesting revisional jurisdiction with the<\/p>\n
superior courts is to correct the infirmities and illegalities in<\/p>\n
the orders of the inferior courts, and thus to avoid failure of<\/p>\n
justice, after perusing the judgment of the court below and the<\/p>\n
materials tendered in the case, I am persuaded that a review<\/p>\n
of evidence in the revision is called for to avoid miscarriage of<\/p>\n
justice.\n<\/p>\n<\/p>\n
         6. Complainant was examined as PW1. She has alleged<\/p>\n
in the complaint that Ext.P1 cheque was given in discharge of<\/p>\n
a debt owed from the complainant. No more particulars of the<\/p>\n
transaction giving rise to the debt are given in the complaint.<\/p>\n
When examined in chief, she narrated in tune with the<\/p>\n
allegations set out in the complaint.         During her cross<\/p>\n
examination, when she was questioned about the transaction<\/p>\n
CRL.R.P.550\/06                10<\/span><\/p>\n
covered by Ext.P1 cheque, she would state that two days<\/p>\n
before, she had withdrawn Rs.2 lakhs from the Urban<\/p>\n
Co-operative Bank, from which Rs.1 lakh was given to the<\/p>\n
accused. If her version is accepted, the transaction covered<\/p>\n
by Ext.P1 cheque for a sum of Rs.1 lakh took place hardly two<\/p>\n
days before. When she was questioned with respect to the<\/p>\n
second cheque from the accused, she stated that the second<\/p>\n
cheque for Rs.6,55,000\/- was given after issuing Ext.P1<\/p>\n
cheque. She specifically stated that the second cheque was<\/p>\n
given on 5.11.2000 and being questioned further on the<\/p>\n
consideration covered by that cheque it is her case that she<\/p>\n
had then in her hand Rs.12 lakhs as the price received by sale<\/p>\n
of her property, from which the sum covered by the second<\/p>\n
cheque was given to the accused. Ext.D1 was admitted by her<\/p>\n
as the photo copy of the second cheque for the sum of<\/p>\n
Rs.6,55,000\/-.   Ext.D1 shows that it is dated 2.1.1999, the<\/p>\n
same date appearing in Ext.P1 cheque also, discrediting her<\/p>\n
version that the second cheque was given on 5.11.2000. A<\/p>\n
stamp receipt purported to have been signed by the accused,<\/p>\n
admitting the execution of Ext.P1 cheque was produced by the<\/p>\n
CRL.R.P.550\/06                11<\/span><\/p>\n
complainant and got marked as Ext.P8.         When she was<\/p>\n
questioned why such a stamp receipt was collected, she<\/p>\n
asserted that it was taken to prevent the accused from<\/p>\n
denying the execution of the cheque later. While giving the<\/p>\n
second cheque, for a sum of Rs.6,55,000\/-, according to the<\/p>\n
complainant, she had taken a promissory note, copy of a title<\/p>\n
deed for one acre of immovable propriety and also its<\/p>\n
pattayam (title   certificate) from the accused.      She also<\/p>\n
admitted that a theft had taken place in her house over which<\/p>\n
on her complaint a crime was registered at Ranni Police<\/p>\n
Station. When specific reference was made to Kunjumon, a<\/p>\n
servant in her house as arranged by the accused and his<\/p>\n
involvement in the theft, she denied the role of the accused in<\/p>\n
arranging him as her servant but conceded that Kunjumon,<\/p>\n
her servant, was also involved in the theft. Her evidence has<\/p>\n
to be appreciated in the backdrop that to the statutory notice<\/p>\n
issued on dishonour of the cheque with endorsement that<\/p>\n
“payment stopped by the drawer” the accused had issued a<\/p>\n
reply notice disputing the monetary transactions and setting<\/p>\n
forth a case that he was detained by the police for four days<\/p>\n
CRL.R.P.550\/06                 12<\/span><\/p>\n
pursuant to a theft in the house of the complainant and loss of<\/p>\n
two cheque leaves kept in his purse while he was in custody.<\/p>\n
Arranging a servant to the complainant and his involvement in<\/p>\n
the theft were also stated in the reply notice as the reason for<\/p>\n
his arrest and detention, suspecting his involvement too in the<\/p>\n
crime, at the instance of the complainant.      Despite such a<\/p>\n
case set up right from inception, even under the reply notice<\/p>\n
by the accused, which was reiterated by him during the trial<\/p>\n
also, the complainant has not let in any material to show that<\/p>\n
she had any money transaction with the accused at any point<\/p>\n
of time and under that transaction two cheques were given by<\/p>\n
him, one for Rs.1 lakh and the other for Rs.6,55,000\/-. The<\/p>\n
above circumstance alongwith the collection of a stamp<\/p>\n
receipt (Ext.P8), taken with Ext.P1 cheque, generates<\/p>\n
reasonable suspicion as to the genuineness of the transaction.<\/p>\n
Two cheques, both showing the same date, for a total sum of<\/p>\n
Rs.7,55,000\/- with the documents admittedly taken as security,<\/p>\n
as borne out by the evidence of the complainant (PW1), and<\/p>\n
the filing of the second complaint in respect of the cheque of<\/p>\n
Rs.6,55,000\/- after its dishonour in a different court are other<\/p>\n
CRL.R.P.550\/06                  13<\/span><\/p>\n
suspicious circumstances indicating that the transaction<\/p>\n
alleged by the complainant is not bona fide and genuine. It is<\/p>\n
admitted in the bar that the second complaint relating to the<\/p>\n
original of Ext.D1 cheque for Rs.6,55,000\/- after trial, has<\/p>\n
ended in a judgment of acquittal in favour of the accused, and,<\/p>\n
according to the learned counsel for the complainant, an<\/p>\n
appeal preferred against that acquittal is pending before<\/p>\n
this Court. Both the cheques are of the same date in the<\/p>\n
absence of any material circumstance showing otherwise,<\/p>\n
prima facie, indicate it must be from one and the same<\/p>\n
transaction.     The evidence that the transactions relating to<\/p>\n
the two cheques are different as stated by the complainant<\/p>\n
cannot be accepted on its face value. The discredited version<\/p>\n
of the complainant and the suspicious circumstances<\/p>\n
surrounding the transaction relating to the two cheques for a<\/p>\n
substantial sum of Rs.7,55,000\/- as borne out by her evidence<\/p>\n
render the prosecution against the accused unworthy of any<\/p>\n
merit.\n<\/p>\n<\/p>\n
         7. Merely on the basis of the presumptions covered by<\/p>\n
CRL.R.P.550\/06                  14<\/span><\/p>\n
the Statute and the burden cast for displacement of such<\/p>\n
statutory presumptions by rebuttal evidence, it cannot be<\/p>\n
stated that the case of the complainant deserves acceptance.<\/p>\n
Just as in any other criminal case, in a complaint under<\/p>\n
Section 138 of the N.I.Act, the burden is on the complainant to<\/p>\n
prove his case.   The accused failed to establish the defence<\/p>\n
canvassed, and further, the defence so canvassed by him<\/p>\n
appeared to be improbable and unacceptable, is not sufficient<\/p>\n
to assist the complaint, nor even relevant when the<\/p>\n
transaction set up by the complainant relating to the<\/p>\n
instrument is shrouded in suspicious circumstances, prima<\/p>\n
facie indicating that her case that the instrument was issued<\/p>\n
in discharge of a loan is not true. Both the courts below have<\/p>\n
not appreciated documentary evidence let in the case in the<\/p>\n
light of the sworn testimony of the complainant, which is<\/p>\n
found to be totally unworthy of any credence.         She has<\/p>\n
suppressed in the complaint and also in her evidence, the real<\/p>\n
transaction, whatever she had with the accused. Her case<\/p>\n
that Ext.P1 cheque was executed voluntarily by the accused in<\/p>\n
discharge of a loan is thoroughly unbelievable in the proved<\/p>\n
CRL.R.P.550\/06                     15<\/span><\/p>\n
facts of the case.\n<\/p>\n<\/p>\n
         8. Totality of the facts and circumstances involved in the<\/p>\n
case demonstrate that the transaction under which the<\/p>\n
complainant obtained two cheques from the accused for a<\/p>\n
total sum of Rs.7,55,000\/-, for which she filed separate<\/p>\n
complaints in two different courts is shrouded in suspicious<\/p>\n
circumstances indicating the transaction is not genuine and<\/p>\n
bona fide. In that backdrop, I find it unsafe to sustain the<\/p>\n
conviction founded against the accused by the courts below,<\/p>\n
and it is liable to be set aside. In reversal of the conviction<\/p>\n
and sentence imposed against the accused by the court below,<\/p>\n
he is found not guilty and acquitted of the offence under<\/p>\n
Section 138 of the N.I.Act.\n<\/p>\n<\/p>\n
         Revision is allowed.\n<\/p>\n<\/p>\n
                               S.S.SATHEESACHANDRAN
\n                                           JUDGE<\/p>\n
prp<\/p>\n
                S.S.SATHEESACHANDRAN, J.\n<\/p>\n<\/p>\n
 ——————————————————–<\/p>\n
                 CRL.R.P.NO.550 OF 2006 (C)<\/p>\n
———————————————————<\/p>\n
                                           O R D E R<\/p>\n
———————————————————<\/p>\n
                                      5th June, 2009<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court P.S.Joseph vs State Of Kerala on 5 June, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-143792","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nP.S.Joseph vs State Of Kerala on 5 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-s-joseph-vs-state-of-kerala-on-5-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.S.Joseph vs State Of Kerala on 5 June, 2009 - 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