Sivankutty Nair vs R.Rajendran
2021 Latest Caselaw 9813 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

  WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

                    CRL.A.No.128 OF 2011(A)

 AGAINST THE ORDER/JUDGMENT IN ST 174/2007 DATED 31-07-2010 OF
      JUDICIAL MAGISTRATE OF FIRST CLASS -III,TRIVANDRUM

 AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 1133/2010 DATED 06-01-
                 2011 OF HIGH COURT OF KERALA

APPELLANT/COMPLAINANT:
            SIVANKUTTY NAIR
            S/O.G RAMAKRISHNAN PILLAI, LAKSHMI NIVAS,, MYLADUM
            MUKAL, POTHENCODE PO,THIRUVANANTHAPURAM.

            BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR

RESPONDENT/ACCUSED & STATE:
      1     R.RAJENDRAN
            NEDUMPARA KARIKATHU VEEDU, KURUPUZHA,, ELAVATTOM
            PO, NEDUMANGAD,, THIRUVANANTHAPURAM PIN NO, 695
            541.
      2     STATE OF KERALA REPRESENTED BY
            THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
            ERNAKULAM.

            R1 BY ADV. SRI.D.KISHORE

            R2 BY MAYA M.N., PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.128 of 2011             2




                            JUDGMENT

This is an appeal filed against the acquittal u/s 378(4) of the

Criminal Procedure Code (Cr.P.C) in a proceeding initiated u/s 138

of the Negotiable Instruments Act (for short N.I Act) in S.T

No.174/2007 on the file of the Judicial First Class Magistrate

Court-III, Thiruvananthapuram.

2. The parties are referred to in this judgment as they

were referred to in the impugned judgment, that is the

complainant and the accused.

3. The complaint was filed for prosecuting the accused for an

offence under Section 138 of the N.I Act. It was alleged that the

accused borrowed an amount of Rs. 60,000/- from the

complainant on 08.07.2006 and towards the discharge of the said

debt he issued Ext.P1 cheque on 07.12.2006, that the cheque on

presentation was dishonored for want of sufficient funds, that

Ext.P4 notice demanding payment was not heeded to and

therefore the accused committed an offence punishable under

Section 138 of the N.I Act.

4. PW1, PW2 and PW3 were examined on behalf of the

complainant and Exts.P1 to Ext.P5 were marked. DW1, DW2 and

DW3 were examined on the side of the defence and Exts.D1 to

Ext.D6 were marked.

5. The court below on appreciation of the evidence found

that the complainant failed to prove the execution and delivery of

Ext.P1 cheque and that the case put forward by the accused is

more probable and believable and, hence, no offence under

Section 138 of the N.I Act was made out. Accordingly, the

accused was acquitted under Section 255 (1) of Cr.P.C, as per the

impugned judgment. Challenging the said judgment, the

complainant preferred this appeal.

6. Heard both sides.

7. The learned counsel for the appellant submitted that

the complainant has succeeded in proving the execution of Ext.P1

cheque by examining PW1, PW2 and PW3 and, hence,

presumption under Section 139 of the N.I Act would come into

play and the accused has failed to rebut the said presumption.

The court below went wrong and committed illegality in acquitting

the accused, argued the counsel. Per contra, the learned counsel

for the accused submitted that the complainant has miserably

failed to prove the transaction as well as the execution of Ext.P1

cheque and, hence, failed to discharge the initial burden cast

upon him. The counsel further submitted that, if at all the

presumption under Section 139 of the N.I Act is available to the

complainant, the accused has succeeded in rebutting the said

presumption. The court below rightly acquitted the accused,

submitted the counsel.

8. In the case of acquittal, there is double presumption in

favour of the accused. Firstly, the presumption of innocence

available to him under the fundamental principles of criminal

jurisprudence that every person shall be presumed to be innocent

unless he is proved guilty by the competent court of law.

Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed and

strengthened by the order of acquittal recorded by the trial court.

However, the Criminal Procedure Code put no limitation,

restriction or condition on exercise of the power of the Appellate

Court to review, re-appreciate and reconsider the evidence upon

which the order of the acquittal is founded. But it is settled that

if two reasonable conclusions are possible on the basis of

evidence on record, the Appellate Court should not disturb the

finding of acquittal recorded by the court below. The Apex Court

of India in a number of cases has held that though the Appellate

Court has full power to review the evidence upon which the order

of acquittal is founded, still while exercising such an appellate

power in case of acquittal, the Appellate Court, should not only

consider every matter on record having a bearing on the question

of fact about the reason given by the court below in support of

its order of acquittal, it must express its reasons in the judgment

which led it to hold that the acquittal is not justified.

9. The entire case law on the subject was discussed by the

Supreme Court in Chandrappa v. State of Karnataka ((2007)

4 SCC 415). It was held in Chandrappa as follows:

"(1) An appellate court has full power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

The principles laid down in Chandrappa were generally reiterated

but mainly reformulated in Ganpat v. State of Haryana ((2010)

12 SCC 59) though without reference to Chandrappa and by

referring to decisions not considered therein. The reformulation of

the principles in Ganpat is as follows:

"(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.

(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.

(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (Vide Madan Lal v. State of J&K. (1997 (2) KLT SN 26 (C.No.29) SC= (1997) 7 SCC 677), Ghurey Lal v. State of U.P.

SCC 450), Chandra Mohan Tiwari v. State of M.P.

((1992) 2 SCC 105) and Jaswant Singh v. State of Haryana ((2000) 4 SCC 484))"

Referring to Chandrappa and Ganpat, the Supreme Court in

Shyamal Saha v. State of West Bengal (2014 (1) KLT SN 59

(C. No. 84) SC) held as follows:

"Realistically speaking, although the principles stated are broad, it is the obligation of the High Court to consider and identify the error in the decision of the Trial Court and then decide whether the error is gross enough to warrant interference. The High Court is not expected to merely substitute its opinion for that of the Trial Court only because the first two principles in Chandrappa and Ganpat permitit to do so and because it has the power to do so - it has to correct an error of law or fact significant enough to necessitate overturning the verdict of the Trial Court. This is where the High Court has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). This is also where the fifth principle laid down in Chandrappa and Ganpat comes into operation".

In Minal Das and Others v. State of Tripura, ((2011) 9 SCC

479), the Supreme Court held as follows:

"14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with

the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."

In Rohtash v. State of Haryana, (2012) 6 SCC 589, it was held:

"27. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 and Govindaraju v. State, (2012) 4 SCC 722)"

In Mookkiah v. State (2013 (1) KLT Suppl.81 (SC)) the

Supreme Court elaborately considered the broad principles of law

governing the power of the High Court under Section 378 of the

Code of Criminal Procedure while hearing the appeal against an

order of acquittal passed by the trial Judge and observed as

under:

"An appellate court has full power to review, re appreciate and reconsider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable conclusions are possible on the basis of the evidence on record,

the appellate court should not disturb the finding of acquittal recorded by the trial court".

In Phula Singh v. State of H.P(JT 2014 (3) SC 545) it was held

that in exceptional cases where there are compelling

circumstances and the judgment under appeal is found to be

perverse, the appellate court can interfere with the order of

acquittal. Recently in the Supreme Court in Muralidhar v. State

of Karnataka (AIR 2014 SC 2200) it was held:

"In dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not 8 justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully

justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court".

In State of Rajasthan, the Secretary Home Department Vs.

Abdul Mannan (AIR 2011 SC 3013) it was held that in

exceptional cases where there are compelling circumstances, and

the judgment under appeal is found to be perverse, ie., the

conclusions of the court below are contrary to the evidence on

record or its entire approach in dealing with the evidence is

patently illegal, leading to the miscarriage of justice or its

judgment is unreasonable based on erroneous law and facts on

the record of the case, the Appellate Court should interfere with

the order of acquittal. Again, the Supreme Court of India in

Babu Vs. State of Kerala (2010(9) SCC 189) took the view that

the order of acquittal could be interfered by the appellate court if

the finding of fact recorded by the court is perverse or if the

findings have been arrived at by ignoring or excluding relevant

materials or by taking into consideration irrelevant/ inadmissible

materials. It was observed that the finding can be said to be

perverse if it is "against the weight of evidence" or if the finding

was outrageously defies logic as to suffer from the vice of

irrationality. Thus, the law on the issue can be summarized to

the effect that in exceptional cases where there are compelling

circumstances and the judgment under the appeal is found to be

perverse, the Appellate Court can interfere with the order of

acquittal. Interference in routine manner where the other view is

possible should be avoided, unless there are good reasons for

interference.

10. Bearing in mind the above mentioned legal principles, let

me analyze the evidence given by the prosecution witnesses to

ascertain whether the decision of the lower court is based on

erroneous views, against settled position of law or the conclusions

of the court below are contrary to the evidence on record or its

entire approach in dealing with the evidence is patently illegal,

leading to the miscarriage of justice.

11. As stated already, the case of the complainant is that

the accused borrowed a sum of Rs.60,000/- from him and in

discharge of the said debt, Ext.P1 cheque was issued. The

defence set up by the accused is that on 06.07.2006 he borrowed

a sum of Rs.30,000/- from the complainant, at that time, at the

instance of the complainant, he handed over the signed blank

cheque as a security, which was later on misused and concocted

as Ext.P1 cheque and a false complaint was filed against him.

Thus, though the execution of Ext.P1 cheque is disputed, his

signature there in is not denied. However, during the evidence,

the accused has specifically stated that the entries in Ext.P1

cheque were not in his handwriting. In order to prove the

execution of the cheque, oral evidence of PW1 to PW3 were

adduced. PW1 is the complainant himself. He reiterated the

avernments in the complaint in the box. However, in the chief

affidavit, he did not mention the date of borrowal. In the

complaint it was stated that the date of borrowal was on

08.07.2006. When a specific question was put to PW1 as to the

date of borrowal in the cross examination, he answered that the

date of borrowal was on 07.11.2006. He clarified the difference

in the date of borrowal stated in the complaint and in the

evidence. The clarification was that his advocate mistakenly

shown the date as 08.07.2006 in the complaint and the correct

date of borrowal was on 07.11.2006. But, it is pertinent to note

that if such a mistake has occurred, it could have been clarified in

the chief examination itself in as much as it was well within the

knowledge of PW1. The said discrepancy in the evidence has to

be viewed in the light of the defence set up by the accused and

the evidence adduced by him to substantiate the said defence.

The definite defence case is that the accused has requested the

complainant on 01.07.2006 to lend him Rs.30,000/-. The

complainant told him that if he was ready to give a cheque as

security, the complainant was ready to advance a loan. On

05.07.2006, the accused opened an account with SBT Palode

Branch and on 06.07.2006 the complainant issued a cheque for

Rs.30,000/- to the accused. On 06.07.2006, the accused

presented the cheque for encashment and it was honoured on

11.07.2006. It is evident from the oral testimony of DW1, the

Branch Manager, SBT Palode and Ext.D1, the copy of the cheque

withdrawal form, that the accused opened an account with State

Bank of Travancore, Palode on 05.07.2006. Ext.P1 cheque was

drawn at SBT Palode branch. It is also evident from Ext.D2, the

copy of another cheque withdrawal slip, and Exts.D5 and D6,

the attested copy of the statement of account of the complainant,

and the oral evidence of DW1 and DW2, that Ext.P1 cheque was

presented for encashment in the account of the accused for

Rs.30,000/- on 06.07.2006 and it was honoured on 11.07.2006.

Two more witnesses were examined to prove the transaction and

the execution of the cheque, PW2 and PW3. PW2 is an employee

of the complainant and PW3 is the wife of the complainant. Even

though PW2 deposed that he was present at the time of alleged

transaction, neither the complainant nor PW3 stated about the

presence of PW2. PW3 being the wife of the complainant, is an

interested witness. She deposed that the transaction took place

in her presence but the complainant or PW2 did not state

anything regarding the presence of PW3 at the time of

transaction. Hence, the evidence of PW2 and PW3 will not help

the complainant to prove the transaction or the execution of the

cheque. All these evidence on record show that the case set up

by the accused is more probable.

12. The learned counsel for the appellant has relied on

three decisions of the Supreme Court in Kumar Exports v.

Sharma Carpets [(2009) 2 SCC 513], Hiten P. Dalan v.

Bratindranath Banerjee [(2001) 6 SCC 16] and Rangappa v.

Sri Mohan [(2010) 11 SCC 411] and argued that once a

signature in the cheque is admitted, the cheque shall be

presumed to be for consideration unless and until, the accused

adduced evidence to rebut the presumption. The dictum laid

down in the above three decisions is that the cheque shall be

presumed to be for consideration unless and until, the Court form

a belief that the consideration does not exist or the non-existence

of consideration was so probable that a prudent man would,

under those circumstances of the case, act upon the plea that

consideration does not exist. The learned counsel has also relied

on a latest decision of Supreme Court in Bir Singh v. Mukesh

Kumar [(2019) 4 SCC 197] to hold that presumption under

Section 139 of the N.I Act is a presumption of law, as

distinguished from presumption of facts. The obligation on the

prosecution may be discharged with the help of presumptions of

law and presumptions of fact unless the accused adduces

evidence showing the reasonable possibility of the non-existence

of the presumed fact. There is no quarrel about the above said

legal proposition. But, this is a case where the accused has

succeeded to bring on record such facts and circumstances,

mentioned in detail above, to pursue the Court to believe that the

consideration pleaded did not exist or that its non-existence was

so probable that a prudent man would, under the circumstances

of the case, act upon the plea that the consideration did not exist.

It is settled that there may not be sufficient negative evidence

which could be brought on record by the accused to discharge his

burden. The accused need to substantiate his case based on

preponderance of probabilities. As stated already, in the case of

acquittal, there is double presumption in favour of the accused.

An order of acquittal cannot be interfered with as matter of

course. An order of acquittal can only be interfered with when

there are compelling and substantial reasons for doing so. Only

in exceptional cases where there are compelling circumstances

and the judgment in appeal is found to be perverse, the Appellate

Court can interfere with the order of acquittal.

For the reasons stated above, I find no reason to

interfere with the order of acquittal by the court below vide the

impugned judgment. The appeal fails and it is only to be

dismissed.

In the result, the appeal is dismissed.

Sd/-

                                       Dr. KAUSER EDAPPAGATH
 rps/                                              JUDGE