P.P.Saji vs P.P.Saji
2021 Latest Caselaw 10511 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE K.HARIPAL

     MONDAY, THE 29TH DAY OF MARCH 2021 / 8TH CHAITHRA, 1943

                       CRL.A.No.593 OF 2011

AGAINST THE JUDGMENT IN CRL.A. NO. 18/2008 OF ADDITIONAL DISTRICT
      AND SESSIONS COURT, FAST TRACK (ADHOC- I), KALPETTA

     AGAINST THE JUDGMENT IN S.T. NO. 225 OF 2005 OF JUDICIAL
       MAGISTRATE OF FIRST CLASS COURT - I, SULTHAN BATHERY


APPELLANT/1ST RESPONDENT/COMPLAINANT:

             P.P.SAJI,
             S/O. POULOSE,
             AGED 47 YEARS
             PULIKAL HOUSE,
             KARACHAL P.O.,
             AMBALAVAYAL AMSOM,
             SULTHAN BATHERY.

             BY ADVS.
             SRI.A.S.BENOY
             SRI.N.S.MOHAMMED USMAN

RESPONDENTS/APPELLANT/ACCUSED AND STATE:

      1      ANANDA KUMAR,
             S/O. BHASKAREN
             PUTHUPARAMBU VELY HOUSE,
             PUNNAPARA P.O.,
             ALAPUZHA - 688 004

      2      STATE OF KERALA,
             REPRESENTED BY PUBLIC PROSECUTOR,
             HONOURABLE HIGH COURT OF KERALA.

             R1 BY ADVS. SRI.P. DALBI EMMANUEL
                         SRI.A.V.JAMES
             R2 BY SRI. M.S. BREEZ, SENIOR PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021,
THE COURT ON 29.03.2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No. 593 of 2011         2




                              JUDGMENT

The appellant is the complainant in S.T. No. 225/2005 on the file

of the Judicial First Class Magistrate - I, Sulthan Bathery, a

proceeding instituted against the first respondent alleging offence

punishable under Section 138 of the Negotiable Instruments Act,

hereinafter referred to as the Act. In the complaint presented on

26.10.2004, it is alleged that the first respondent had borrowed a sum

of Rs.1,00,000/- from him for business purpose, agreeing to repay

within one month. After one month, when the amount was demanded

back, he told that he does not have ready cash with him, but amount is

in deposit; accordingly cheque bearing No. 830454, dated 17.08.2004

drawn on Punnapra branch of the State Bank of Travancore, was

signed and handed over to the appellant at Meenangadi. The cheque

was presented for collection through Meenangadi branch of the South

Malabar Gramin Bank, but it was returned on 01.09.2004 with the

endorsement 'funds insufficient'. Then the appellant caused to issue a

lawyer notice on 18.09.2004, which was received by the first

respondent on 27.09.2004. As the amount was not repaid, he preferred

the said complaint.

2. The complaint was taken on file as S.T. No. 225/2005 and

the first respondent was summoned. He appeared and pleaded not

guilty to the charge. Thereafter, the complainant was examined as

PW1 and Exts. P1 to P6 were marked on his side. When examined

under Section 313(1)(b) of the Criminal Procedure Code, the first

respondent denied the allegations. Thereafter, he gave evidence as

DW1. His brother was examined as DW2. After hearing counsel on

both sides, by judgment dated 18.01.2008, the trial court found the

first respondent guilty of offence punishable under Section 138 of the

Act and sentenced to undergo simple imprisonment for three months

and to pay compensation of Rs.1,00,000/-, in default to undergo

simple imprisonment for two months. The first respondent assailed

the said finding in appeal before the Sessions Court, Kalpetta. The

learned Additional Sessions Judge - I, Kalpetta considered the appeal,

by the impugned judgment dated 05.01.2011 in Crl. A. No. 18/2008,

allowed the appeal, reversed the finding and acquitted the first

respondent. Aggrieved by the said finding of the learned Additional

Sessions Judge, the appellant initially filed Criminal Leave Petition

No. 242/2011 and on obtaining leave, preferred this appeal under

Section 378(4) of the Cr. P.C.

3. I heard the learned counsel for the appellant and also the

learned counsel for the first respondent in detail.

4. According to the learned counsel for the appellant, there is

only a question of borrowal and repayment. The oral testimony of the

appellant as PW1 and supporting documents are sufficient to enter

into a conviction against the first respondent. The complaint was

preferred after giving the Ext.P4 notice, which was not replied nor the

amount was repaid. The appellant has not received the reply notice

shown as Ext.D2. A complaint as Ext.D1 was preferred after 2 1/2 years

of instituting this complaint. It is a clear case of after thought.

According to the learned counsel, the story of the first respondent

stated while the PW1 was cross examined and the version in Ext.D2

are different. The first respondent has taken inconsistent stands. He

has not disputed the Ext.P1 cheque; the signature in Ext.P1 is also

admitted and therefore, the learned Sessions Judge went wrong in

reversing the finding made by the trial court. The learned counsel is

also skeptical about the non-examination of Surendran and Vincent,

whose names appear in the evidence of the first respondent. The first

respondent has not brought in best evidence before court and the

appellant could disprove the version of the first respondent. On the

other hand, according to the learned counsel for the first respondent,

he is running a tea shop at his native place at Punnapra, whereas the

appellant is an auto-consultant at Meenangadi in Wayanad District;

previous acquaintance of the parties could not be proved and it is

improbable that the first respondent had borrowed an amount from the

appellant from a far of place, more than 400 kms away from his place.

Even though the appellant had claimed that Rs.70,000/- of the amount

was arranged from the bank, supporting documents were not

produced. The complaint and even the chief affidavit lack particulars.

The presumptions under Sections 118 and 139 of the Act are not

available in favour of the appellant; the very complaint is incomplete,

acquaintance between the parties is not proved and the first respondent

has given a consistent case. According to the learned counsel, it is a

false prosecution initiated at the instance of Vincent with whom DW2,

the brother of the first respondent had transactions.

5. Even though it was stated by the learned counsel for the

appellant that the appellant has not received the Ext. D2 reply notice,

the affidavit in lieu of chief examination of the complainant as PW1

filed before the trial court alone is sufficient to falsify the statement.

In the chief affidavit filed before the trial court on 24.09.2005, the

appellant has stated that the first respondent had given a reply to the

Ext.P4 notice after the institution of the complaint, that it contains

false statement. In other words, the Ext.P4 was replied by the first

respondent. Ext.D2 is dated 28.10.2004, whereas the complaint was

presented on 26.10.2004. But the complaint was taken on file only on

28.01.2005 and summons was issued against the first respondent

returnable by 26.03.2005. That means, though belated, the first

respondent had sent a reply to the Ext.P4 notice. Such a reply was

caused, before the court had taken cognizance of the offence and

summoning the first respondent.

6. The complaint was filed as a simple case of money

transaction. The appellant contended that the first respondent had

borrowed an amount of Rs.1,00,000/-, for repayment of the same,

Ext.P1 cheque was issued at Meenangadi. The first respondent on the

other hand took the contention that he is a total stranger to the

appellant, he had no acquaintance or monetary transaction with the

appellant, that Ext.P1 was handed over in a signed blank form to his

brother DW2 in connection with a transaction in which DW2

purchased a stage carriage from one Mohammed Koya; the bus was

purchased after paying Rs.50,000/-, towards the rest of the

consideration, the subject cheque and four other cheques of the first

respondent, three cheques of DW2 and other documents were handed

over to one Vincent, who agreed to arrange finance from Theethai

Trade Links, Mannuthy, Thrissur. But later the finance was not

arranged nor the documents were returned and the said Vincent, in

collision with the appellant, was manipulating the documents to create

a cause of action and thus a false case was instituted against the first

respondent. It has also been tried to impress the court that the first

respondent has instituted a complaint against the appellant and the

said Vincent before the Judicial First Class Magistrate Court, Thrissur

in 2007.

7. It is true that the Ext.P1 cheque bears the signature of the

first respondent. But on the face of the document, other writings are

in different hand. As rightly noticed by the learned Additional

Sessions Judge, there are numerous incongruities in the case of the

appellant. Firstly, the appellant could not establish that he had any

acquaintance or association with the first respondent, who is living at

a far away place at Punnapra, sufficient enough to lend a substantial

amount of Rs.1,00,000/-, with no documents or security, whatsoever,

at the time when the money was allegedly passed. It is here that the

absence of particulars in the complaint and also in the chief affidavit

of the appellant regarding the transaction assumes importance.

Secondly, it is stated that after one month of the borrowal, the first

respondent had gone to Meenangadi and handed over the Ext.P1

cheque. Here also unreasonableness writ large in the contention of the

appellant. He said to have informed the appellant at Meenangadi that

he does not have ready cash with him and then handed down the

Ext.P1 cheque after making him believe that he has sufficient money

in his bank account. It sounds improbable and incredible that a person

had travelled more than 400 kms to hand over the cheque, leaving the

cash in the bank account at Punnapra. In my assessment, the

contention of the appellant sounds clearly artificial and incongruous.

In such a setting, as rightly noticed by the learned Additional Sessions

Judge, the trial court ought not to have entered the finding against the

first respondent. In fact the judgment of the trial court convicting the

first respondent lacks proper analysis of evidence and deliberation.

The learned Magistrate has acted in a most mechanical manner,

without proper application of mind. On the other hand, the learned

Additional Sessions Judge has assessed the probabilities arising from

the contentions of the parties, common course of natural events,

human conduct and then came to the conclusion that the case of the

first respondent is not probable.

8. The learned counsel for the appellant was harping on the

inconsistencies in the case of the first respondent. In fact, I cannot

perceive any serious inconsistency in the case of the first respondent.

Moreover, the accused respondent is entitled to take consistent and

inconsistent stands while defending a charge. Here the question is,

given the materials produced by the appellant, the trial court was

justified in drawing the presumption that the Ext.P1 was supported by

consideration. After considering the totality of circumstances and

evidence, I feel that the case of the first respondent is more probable

and the appellant could not give evidence enabling the court to draw

the statutory presumptions in his favour. Resultantly, the conviction

was improper which has rightly been interfered with by the learned

Additional Sessions Judge. There is absolutely nothing to interfere

with the finding of the learned Additional Sessions Judge.

In the result, the appeal lacks merit and is dismissed.

Sd/-

K.HARIPAL JUDGE DCS/25.03.2021