Mathew.K.J vs Jose Vadakarayil
2022 Latest Caselaw 1545 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
              THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     TUESDAY, THE 15TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943
                        CRL.A NO. 1427 OF 2006
AGAINST THE ORDER OF ACQUITTAL IN CC NO.4/05 DATED 09/03/06 PASSED
   BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, KASARAGOD


APPELLANT:

             MATHEW.K.M.
             S/O.JOSEPH, KAPPIL HOUSE,
             BADIBAGILU, NEW BUS STAND, KASARAGOD.

             BY ADV
             SRI.T.B.SHAJIMON


RESPONDENTS:

    1        JOSE VADAKARAYIL,
             VADAKARAYIL HOUSE, EDAVARAMPU.P.O,
             CHERUPUZHA VIA., KANNUR DISTRICT.

    2        STATE OF KERALA
             REP. BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA.

             BY ADV.

             SRI.NOUSHAD K.A. - PUBLIC PROSECUTOR


     THIS    CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
02.02.2022, THE COURT ON 15.02.2022 DELIVERED THE FOLLOWING:
 CRL.A NO. 1427 OF 2006
                                   2


                             JUDGMENT

The appellant is the complainant in C.C. No.4/05 on the file of

the Judicial First Class Magistrate Court II, Kasargod. The aforesaid

complaint was submitted by him against 1st respondent herein alleging

offence punishable under Section 138 of Negotiable Instruments Act.

2. The case of the appellant is that, towards repayment of the

amount which the 1st respondent borrowed from the appellant herein, a

cheque dated 29.01.2005 was issued by the 1 st respondent for an

amount Rs.3 lakhs. Upon presentation of the said cheque with his

bank, the same was returned unpaid on 29.01.2005 with a memo

containing an endorsement "funds insufficient". The dishonour of the

said cheque was intimated to the 1 st respondent by way of a registered

lawyer notice dated 02.02.2005 and calling upon him to pay the

amount within 15 days. The notice was served upon him on

03.02.2005 and the 1st respondent sent reply raising untenable

contentions. The complaint was submitted in the above

circumstances.

3. In support of the averments in the complaint, the appellant CRL.A NO. 1427 OF 2006

got himself examined as PW1 and Exts.P1 to P6 were marked. After

completion of prosecution evidence, the 1st respondent was examined

under Section 313 of Cr.P.C. and the incriminating materials brought

out during the trial were put to him. He denied the said materials and

contended that the 1st respondent never had any transaction with the

appellant herein and he denied the execution of the said cheque in

favour of the appellant. It is stated by him that he was a subscriber of

chitty conducted by One Joy Orathel under the name and style of

"Athira Finance" wherein he was a subscriber of a chitty for an

amount of Rs.90,000/-. The aforesaid chitty was bid by the 1 st

respondent in auction in the year 1997 and at the time of release of the

said amount, the said Joy Orathel collected three signed blank cheques

and a signed blank stamp paper worth Rs.50,000/- from the 1 st

respondent. Later, he paid the said amount, but he did not return the

said cheque leaves and the stamp paper. It was contended that the

present complaint is submitted by the appellant by misusing one of the

cheques collected by the said Joy Orathel. As defence evidence, the

1st respondent got himself examined as DW1 and Exts.D1 to D8 were CRL.A NO. 1427 OF 2006

marked.

4. After considering the entire materials, the learned

Magistrate arrived at the finding that the appellant failed to establish

the guilt of the 1st respondent and accordingly the complainant was

dismissed thereby acquitting the 1st respondent. This appeal is filed by

the appellant challenging the said order of acquittal.

5. Heard Sri.Shajimon T.B., learned counsel for the appellant

and Sri.Noushad K.A., learned Public Prosecutor for the 2 nd

respondent. Even though notice is served, there is no appearance for

the 1st respondent/accused.

6. Learned counsel for the appellant contended that the

finding entered by the learned Magistrate holding the 1 st respondent

not guilty, is unsustainable. The learned counsel points out that, while

deciding the issues involved in the above complaint, the learned

Magistrate failed to appreciate the impact of presumption as

contemplated under Sections 118(a) and 139 of Negotiable

Instruments Act.

7. On examining the evidence available on record, it can be CRL.A NO. 1427 OF 2006

seen that, from the side of the appellant, he has produced six

documents. Ext.P1 is the cheque in question, which is dated

29.01.2005 with number 06361. The specific case put forward by the

1st respondent right from the inception is that, he never had any

transaction with the appellant herein. According to the 1 st respondent

three cheques having numbers 06361, 06362 and 06363 were

collected by one Joy Orathel in the year 1997 as a security for the

release of the amount in favour of the 1 st respondent in connection

with the chitty conducted by the said Joy Orathel. Even though the

amounts repayable in respect of the chitty transaction were repaid

along with interest accrued thereon, the said Joy Orathel did not return

the said cheque leaves. Later, when he went to the office of

M/s.Athira Finance, which is the establishment run by the said Joy, he

found that the same was closed. Later, one Sunny Joseph who is a

close relative of Joy Orathel had filed a criminal complaint by

misusing the cheque bearing No.06363 before the Judicial First Class

Magistrate Court - II, Thamarassery and a case was registered against

the respondent as C.C. No.483/2001 for the offence under Section 138 CRL.A NO. 1427 OF 2006

of Negotiable Instruments Act. Similarly, by mis-utilizing the cheque

bearing No.06362 another relative of the said Joy, Sri.Augustin Joseph

filed another criminal complaint before the Judicial First Class

Magistrate Court - II, Hosdurg as C.C. No.136/2002. Now the present

complaint is filed by the appellant herein misusing the 3 rd cheque

which was handed over to the said Joy. The above aspects are clearly

mentioned in the reply notice sent by the respondent to the statutory

notice issued by the appellant. Ext.D5 is the said reply notice, which

is marked through DW1, who is the 1st respondent himself.

8. On going through the materials available, it can be seen

that, the specific case of the appellant is that, an amount of Rs.3 lakhs

was borrowed by the 1st respondent from him, on 02.01.2005. It is also

his case that when the aforesaid amount was demanded back the 1 st

respondent issued a cheque on 28.01.2005. Thus the specific case of

the appellant is that the cheque in question which is bearing No.06361

was issued to the appellant by the 1 st respondent on 28.01.2005, in

discharge of a liability created by 1 st respondent on 02.01.2005. Apart

from the aforesaid cheque, there are no other materials to substantiate CRL.A NO. 1427 OF 2006

the transaction. Even though it is stated that the amounts were handed

over by the appellant when the 1st respondent came to his residence at

Kasargod, there are no witnesses to substantiate the same. On the

other hand, right from the inception the 1st respondent was putting

forward a specific case to the effect that this complaint is filed by

misutilizing one of the cheques entrusted with one Joy Orathel in the

year 1997 in connection with the chitty transaction. In order to

substantiate the aforesaid transaction, the 1st respondent relies upon his

deposition as well as Exts.D1 to D8. D1 is a complaint submitted by

the 1st respondent herein against the Joy Orathel and Sunny Joseph in

the year 2001 before the Judicial First Class Magistrate Court,

Payyannur alleging offences punishable under Section 465 and 468 of

Indian Penal Code. The specific contention raised by the 1 st

respondent in the said complaint was that the accused named therein

have collected three blank cheques bearing Nos.06361, 06362 and

06363 and later the same were misutilized even though the amount

payable to the said chitty transaction were repaid by the respondent.

Ext.D2 is the First Information Report registered on Ext.D1. Ext.D3 CRL.A NO. 1427 OF 2006

is a reply notice issued to the said Agustin Joseph to a statutory notice

issued on behalf of him for initiating proceedings against the 1 st

respondent for the offence punishable under Section 138 of Negotiable

Instruments Act in respect of cheque bearing registration No.06362.

In the said reply notice also the 1st respondent has specifically raised

this contention. Ext.D4 is the acknowledgment card of the said reply

notice. Ext.D5 is the reply notice sent on behalf of the 1 st respondent

to the statutory notice issued by the appellant herein in respect of the

cheque issued in this case. There also, the contention of misuse of the

aforesaid three cheques with numbers of the said cheques were clearly

mentioned. Ext.D6 is the acknowledgment card in respect of the

same. Ext.D7 is the complaint submitted by the petitioner herein

before the Judicial First Class Magistrate Court, Payyannur for misuse

of the cheque bearing registration No.06363 and Ext.D8 is the First

Information Report registered in respect of the same. In that

complaint also the case as mentioned above is specifically raised by

the 1st respondent.

9. The main contention raised of the learned counsel of the CRL.A NO. 1427 OF 2006

appellant is by placing reliance upon the presumption contemplated

under Section 118(a) and 139 of Negotiable Instruments Act. It is true

that the aforesaid Section 118(a) provides that unless contrary is

proved it is to be presumed that a negotiable instrument has been

made or drawn for consideration. Similarly, Section 139 provides that

unless contrary is proved, the holder of the cheque received the

cheque for discharge in whole or in part of debt or liability. However,

the fact is that the presumptions contemplated under the aforesaid

provisions are rebuttable. In order to rebut the presumption, the

accused has to put forward a probable case and it is not at all

necessary that it should be a case beyond reasonable doubt. It is a

well settled position of law that the presumption can be treated as

rebutted when the accused advances a probable case with evidence

and the consideration for the same is not strict proof but only

'preponderance of probabilities'. In this case, the evidence of DW1

coupled with Exts.D1 to D8 clearly indicate that cheques in question

along with the two other cheques were handed over to Joy Orathel in

the year 1997 itself as blank cheques. It is also discernible from the CRL.A NO. 1427 OF 2006

records that out of the said three cheques the two cheques were used

by Sunny Joseph and Agustin Joseph who were close relatives of the

said Joy Orathel and initiated proceedings against the petitioner herein

for the offences punishable under Section 138 of Negotiable

Instruments Act. Ext.D1 also indicates that, even in the year 2001, the

1st respondent had filed a complaint against Joy Orathel and Sunny

Joseph alleging misuse of the aforesaid cheque leaves. In the said

complaint also the cheque number which is the subject matter of the

complaint herein namely 06361 is specifically referred to. Therefore,

there is overwhelming evidence in support of the case put forward by

the 1st respondent. Right from the inception, he raised such a

contention consistently and there are materials produced in support of

the same. Therefore, it is evident that the presumption in favour of

the appellant by virtue of Section 118(a) and Section 139 stands

rebutted.

10. The natural consequence of such rebuttal is that the burden

to establish the offence allegedly committed by the 1st respondent is

upon the shoulders of the appellant herein. When we consider the CRL.A NO. 1427 OF 2006

evidence on record in that perspective, it can be seen that, apart from

the cheque there are no materials to substantiate the claim of the

appellant. Even though he stated that, the amount was borrowed by

the 1st respondent herein on 02.01.2005 and the cheque was issued in

discharge of the said liability on 28.01.2005 no documents are there, to

substantiate the same. It is evident from the documents produced by

the 1st respondent that the said cheque was already entrusted with Joy

Orathel and there are no evidence available on record as to how it

reached in the possession of the appellant. The contention of the

appellant that it was handed over by the 1 st respondent himself on

28.01.2005 is not believable, in the light of the specific case put

forward by the 1st respondent and the documents produced by him in

support of his contention. The appellant also could not produce any

documents indicating the payment of any amount to the 1 st respondent

and also the source from which he paid the said amount. As observed

by the learned Magistrate, the appellant is residing about 140

kilometers away from the residence of the 1 st respondent and the 1st

respondent is denying any acquaintance with the appellant as well. CRL.A NO. 1427 OF 2006

Despite the same, no attempt has been made by the appellant to prove

the transaction by adducing any evidence. In such circumstances, the

conclusion arrived at by the learned Magistrate to the effect that the

appellant failed to prove execution of the cheque is a sustainable view.

11. The learned counsel for the appellant contended that, since

the 1st respondent has admitted the signature, the presumption has to

be drawn in his favour. It is true that the 1 st respondent has admitted

the signature, but he never admitted that the said cheque was issued

and handed over to the appellant herein. On the other hand, he has

raised specific case that this cheque was handed over to one Joy

Orathel in the year 1997 and the same was misused by the appellant,

in connivance with the said Joy. In the light of the specific and

consistent case amply proved by the 1st respondent through his

deposition as DW1 and also with the help of Exts.D1 to D8, I do not

find any scope for any interference.

12. In this regard it is also to be noted that in Chandrappa

and Others v. State of Karnataka [(2007) 4 SCC 415], the Hon'ble

Supreme Court examined the manner in which appreciation of CRL.A NO. 1427 OF 2006

evidence is to be made by the appellate court while considering an

appeal against acquittal. After elaborately discussing various

decisions on the point, the Apex Court, formulated the guidelines to be

followed by the appellate court. It was specifically observed therein

that, while considering the evidence on record, the appellate court

must bear in mind that in the case of acquittal there is a double

presumption in favour of the accused. Firstly, the presumption

available under the fundamental principles of jurisprudence that every

person shall be presumed to be innocent, unless he is proved guilty

and another presumption consequent to the acquittal by the trial court

after appreciating the evidence. It is also a relevant aspect in this

regard that, the trial court has arrived at the finding of the acquittal

after examining the demeanour of the witness which advantage is not

available for the appellate court. In Chandrappa's case (cited supra)

it is also held that if two reasonable conclusions are possible on the

basis of evidence on record, the appellate court shall not disturb the

finding of acquittal recorded by the trial court. In this case, I do not

find any material to rebut the presumptions as mentioned above which CRL.A NO. 1427 OF 2006

stand in favour of the 1st respondent herein.

In such circumstances I am of the view that this appeal is devoid

of any merit. Accordingly, it is dismissed by confirming the order of

acquittal passed by the Judicial First Class Magistrate Court - II,

Kasargod as per order dated 09.03.2006 in C.C. No.4/2005.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE scs