T.R. David vs B.R. Krishna Prasad

Kerala High Court

T.R. David vs B.R. Krishna Prasad on 21 May, 2024

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
               CRL.APPEAL NO. 825 OF 2023
 AGAINST THE JUDGMENT DATED 06.03.2023 IN CC NO.1819 OF
    2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,
                   THIRUVANANTHAPURAM
    (Crl.L.P. NO.274 OF 2023 OF HIGH COURT OF KERALA)


APPELLANT/COMPLAINANT:

         T.R. DAVID
         AGED 83 YEARS
         S/O T.D. RAPHAEL, T.C. 34/671 (1), G.V. RAJA
         ROAD, SHANGUMUGHOM, BEACH.P.O.,
         THIRUVANANTHAPURAM,, PIN - 695007.

         BY ADV K.RAJESH KANNAN


RESPONDENTS/ACCUSED 1 AND 2 & STATE:

    1    B.R. KRISHNA PRASAD
         PREM NIVAS, NEDIYAM CODE, PARASUVACKAL.P.O.,
         NEYYATTINKARA, THIRUVANANTHAPURAM,
         PIN - 695508.

    2    PRIYADARSINI.P.,
         W/O B.R. KRISHNA PRASAD, PREM NIVAS, NEDIYAM
         CODE, PARASUVACKAL.P.O., NEYYATTINKARA,
         THIRUVANANTHAPURAM, PIN - 695508.

    3    STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
         KERALA, ERNAKULAM, PIN - 682031.

         R1 & R2 BY ADV AISWARYA E J VETTIKOMPIL
         R3 BY SMT.SEENA C., PUBLIC PROSECUTOR
                                      2
Crl.Appeal No.825 of 2023



       THIS     CRIMINAL    APPEAL       HAVING   COME   UP   FOR   FINAL
HEARING ON 03.04.2024, THE COURT ON 21.05.2024 DELIVERED
THE FOLLOWING:
                                   3
Crl.Appeal No.825 of 2023



                     P.G. AJITHKUMAR, J.
    -----------------------------------------------------------
                  Crl.Appeal No.825 of 2023
    -----------------------------------------------------------
             Dated this the 21st day of May, 2024

                            JUDGMENT

This is an appeal against acquittal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code). The appellant was the complainant and respondent Nos.1 and 2 were the accused in C.C.No.1819 of 2015 on the files of the Judicial Magistrate of the First Class-I, Thiruvananthapuram. The learned Magistrate after trial acquitted respondent Nos.1 and 2 holding that the evidence was insufficient to prove the guilt of accused Nos.1 and 2 beyond doubt. Accordingly, they were acquitted of the offence punishable under Section 420 read with Section 34 of the Indian Penal Code, 1860 (IPC).

2. The appellant assails the findings of the trial court on many grounds. It is contended that at the time of receiving money on three occasions at the rate of Rs.2,50,000/-, Rs.1,00,000/- and Rs.2,50,000/-, respondent Nos.1 and 2 gave a false assurance. The cheques issued for repayment of 4 Crl.Appeal No.825 of 2023 the said amount could not be encashed for the reason either the account was closed or the amount outstanding with the account was insufficient. The trial court, without appreciating the evidence in the above regard in its proper perspective, held that no offence of cheating as defined in Section 415 of the IPC was constituted. The appellant thus maintains that the impugned judgment is liable to be reversed and respondent Nos.1 and 2 are convicted.

3. Heard the learned counsel for the appellant, the learned counsel for respondent Nos.1 and 2 and the learned Public Prosecutor.

4. From the records, it is seen that a charge for the offence punishable under Section 420 read with Section 34 of the IPC was framed against respondent Nos.1 and 2 after hearing both sides, but without recording evidence under Section 244 of the Code. In a case arising otherwise than on a police report, the material based on which a charge can be framed is the evidence recorded under Section 244 of the Code, in the absence whereof, no charge can legally be 5 Crl.Appeal No.825 of 2023 framed. Be that as it may, I proceed to consider the matter on merits for, lack of framing a charge, may be cured under Section 464 of the Code, provided there occurred no failure of justice.

5. The definite case of the appellant is that Rs.2,50,000/- was lent to respondent Nos.1 and 2 on believing their words that with that amount they would be able to complete the sale transaction with Sri.Rex Das and Smt.Sheela Rex Das concerning their land and building, Rs.1,00,000/- was lent in cash believing the words of respondent Nos.1 and 2 that such an amount was required to lay a road to the said property and Rs.2,50,000/- was lent by issuing a cheque for enabling them to make a short film.

6. The appellant relies on Exts.P1, P2 and P3 to prove those transactions. Ext.P1 is a copy of the cheque for Rs.2,50,000/- issued to respondent No.2. receipt of which is not disputed. Ext.P2 is a cheque for Rs.1,00,000/- said to have been issued by respondent No.1 for repayment of the amount of Rs,1,00,000/- he has borrowed. The allegation in 6 Crl.Appeal No.825 of 2023 regard to this cheque is that it was drawn in a closed bank account. Ext.P3 is a self-cheque, which the appellant claimed to have issued to respondent No.1 to encash and appropriate as a loan. The transactions underlying Ext.P2 and P3 are denied by respondent Nos.1 and 2. Their case is that in order to repay the amount of Rs.2,50,000/- they borrowed along with its interest and profit, they issued Ext.P4 and as the same was not presented, they issued Ext.P5 cheque, both for Rs.3,50,000/-. It is the contention of respondent Nos.1 and 2 that Ext.P7 agreement was entered into between the appellant and respondent No.2 relating to lending of Rs.2,50,000/- and they additionally issued Ext.P4 and Ext.P5 cheques later. When such a written agreement was executed and cheque for making payment of the loan amount together with interest and profit was issued, no criminal intention could be attributed. They accordingly would contend that the trial court rightly had found them not guilty.

7. Evidence of PW1, the appellant, is not quite in tandem to the averments in the complaint. PW2, who was an 7 Crl.Appeal No.825 of 2023 employee of the appellant, did not support the whole of his case. Execution of Ext.P7 agreement is admitted by PW1, the appellant. He, however, feigned ignorance of the relevant recitals in it. It is stated in Ext. P7 that in order to repay Rs.2,50,000/- borrowed from the appellant along with its interest and profit, cheque dated 30.12.2013 for an amount of Rs.3,50,000/- was issued to the appellant. Ext.P4 is that cheque. When the transaction is covered by Ext.P7 agreement and in order for making the payment, Ext.P4 cheque was issued, it is not possible to say that respondent Nos.1 and 2 had a deceptive intention while receiving Rs.2,50,000/- from the appellant. Ext.P4 being a negotiable instrument and the account in which it was drawn was live during the period as could be seen from Ext.P10 statement of accounts, it is obvious that no deceptive or fraudulent intention can be attributed to respondent Nos.1 and 2 as alleged by the prosecution.

8. The allegation that respondent Nos.1 and 2 received Rs.1,00,000/- by giving Ext.P2 cheque, which was 8 Crl.Appeal No.825 of 2023 invalid and later borrowed Rs.2,50,000/- by way of encashing Ext.P3 cheque are not supported by any reliable evidence. The version of PW1 in that regard stands contradicted by the oral testimony of PW2. Ext.P2 or Ext.P5 would not prove beyond doubt that those cheques were issued in repayment of the amounts of Rs.1,00,000/- and Rs.2,50,000/- said to have been lent to respondent Nos.1 and 2. When the evidence in that regard is scanty, no offence of cheating against respondent Nos.1 and 2 in relation to such transactions can also be attracted.

9. In an appeal against acquittal, powers of appellate Court are as wide as that of the Trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. So long as the view of the trial court can be said to be reasonably 9 Crl.Appeal No.825 of 2023 formed, regardless of whether the appellate court agrees with the same or not, the verdict of the trial court cannot be interdicted and the appellate court cannot supplant the view of the trial court. (See: Chandrappa and others v. State of Karnataka [(2007) 4 SCC 415]; Shyam Babu v. State of U.P. [(2012) 8 SCC 651] and Central Bureau of Investigation v. Shyam Bihari and others [(2023) 8 SCC 197].

10. As stated, the findings of the trial court leading to the acquittal of respondent Nos.1 and 2 are not perverse or against the evidence on record. Having regard to the law laid down in the aforesaid decisions, those findings and consequent order of acquittal of respondent Nos.1 and 2 are not liable to be reversed or set aside. In the result, this appeal fails and it is dismissed.

Sd/-

P.G. AJITHKUMAR, JUDGE dkr/pv