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.
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Crl.Appeal No.825 of 2023
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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
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
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
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
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.
received Rs.1,00,000/- by giving Ext.P2 cheque, which was
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
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
