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2017 DIGILAW 1226 (KER)

Muhammed Iqbal, Kollam v. High Court of Kerala

2017-09-19

ALEXANDER THOMAS

body2017
JUDGMENT : 1. The prayer in this petition is for grant of special leave as per Sec. 378(4) of the Code of Criminal Procedure, 1973, so as to file criminal appeal to impugn the judgment dated 28.6.2017 rendered by the trial court concerned (Court of Judicial First Class Magistrate-II, Kollam), whereby the accused in S.T.No.2523/2010 has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. The petitioner herein is the complainant and the 2nd respondent herein is the accused in the abovesaid S.T.No.2523/2010. 2. Heard Sri. Sreekanth S. Nair, learned counsel appearing for the petitioner (complainant) and Sri. Justin Mathew, learned Prosecutor appearing for R-1 State. In the nature of the order that is proposed to be passed in this petition, notice to R-2 (accused) will stand dispensed with. 3. The brief of the allegations in the complaint is to the effect that the accused had borrowed an amount of Rs.50,000/- from the complainant on 10.6.2009 and that for repaying the said amount, post dated cheque as per Ext.P-1 bearing date 11.3.2010 for Rs.50,000/- was issued and that the cheque when presented, resulted in dishonour as per Ext.P-2. Thereupon, the complainant had issued Ext.P-3 statutory demand notice calling upon the accused to pay of the amount covered by the said cheque within 15 days from the date of receipt of the said notice. The said notice sent by registered post was duly served on the accused as per Ext.P-4, to which the accused had sent Ext.P-5 reply. Since the amount was not paid, the complainant, after taking recourse to the necessary procedural formalities, had instituted the present complaint, which resulted in the trial. 4. During trial, the petitioner has examined himself as P.W-1 and has marked Exts.P-1 to P-5 documents. The defence has adduced evidence through D.W-1 (Manager of the ICICI Bank) and has marked Ext.D-1 document. Ext.X-1 series is the statement of account of the ICICI bank, which appears to be marked as court exhibit. 5. 4. During trial, the petitioner has examined himself as P.W-1 and has marked Exts.P-1 to P-5 documents. The defence has adduced evidence through D.W-1 (Manager of the ICICI Bank) and has marked Ext.D-1 document. Ext.X-1 series is the statement of account of the ICICI bank, which appears to be marked as court exhibit. 5. The main defence set up by the accused was to the effect that some time in 2005, he had come to know that three of his cheques including the present Ext.P-1 cheque, were lost and that as he was then in Bombay, immediately he had given Ext.D-1 letter 5.12.2005 addressed to the Manager of the ICICI Bank, Andheri Branch, Mumbai, giving the details of the three cheques including the present cheque stating that those cheques did not bear any date or name. Accordingly, the petitioner had issued necessary instructions to the bank to stop payment in respect of the said 3 cheques including the present cheque in question. That the said instruction given by Ext.D-1 dated 5.12.2005 was conveyed by the ICICI Bank, Antheri Branch, Mumbari, to the ICICI Bank, Kollam, from whose account the cheque was issued, etc. It is on the basis this stop payment instructions, that the cheque was dishonoured. 6. P.W-1 has inter alia deposed that the accused had borrowed a total amount of Rs.4 lakhs from him and that few other cases of the same nature were initiated between the parties and that Ext.P-7 is the copy of Sec.313 statement given by the very same accused in another case in S.T.No.2605/2010 and that in the said statement, the accused has stated that one Hakkim, a relative of the complainant, had obtained all the disputed cheques and that Ext.P-1 cheque is also mentioned in Ext.P-7 statement. During cross-examination the defence has suggested that the accused had borrowed money from the complainant in 2002 and when the accused's marine business had gone into loss, the complainant has falsely launched this case, etc. During cross-examination the defence has suggested that the accused had borrowed money from the complainant in 2002 and when the accused's marine business had gone into loss, the complainant has falsely launched this case, etc. The trial court has noted that there appears to be some inconsistencies in the defence case set up by the accused, but that the crucial aspect of the matter is that it has come out in evidence, especially through the deposition of D.W-1 (Manager of the ICICI Bank), that the accused had submitted Ext.D-1 stop payment instruction letter dated 5.12.2005 to the ICICI Bank, Andheri Branch, Mumbai, and that it appears that on the basis of that instruction that the cheque was dishonoured on the ground of stop payment. According to the complainant, the borrowal transaction has taken place in 10.6.2009 and Ext.P-1 cheque was issued as a post dated one bearing date 11.3.2010. The accused had admitted the signature therein, but had challenged the other written entries. The trial court found that presentation of the cheque after expiry of one year and handing over the cheque raises suspicion about the case set up by the complainant. Further, very crucially, Ext.D-1 stop payment instruction given as early as on 5.12.2005 by the accused would create heavy suspicion on the very believability and credibility of the case set up by the complainant. D.W- 1 had deposed that all the records in relation to the petitioner's account could not be made available now before the court as those records are not available, due to the expiry of more than five years. In these circumstances, the trial court has taken the view that in view of Ext.D-1, the burden is quite heavy on the complainant to prove that Ext.P-1 cheque was actually executed in 2009 to discharge the liability in respect of the transaction, which took place at that time. That apart, from the oral testimony of P.W-1 there is nothing else to support the case of the complainant, etc. The alleged date of transaction and the handing over of Ext.P-1 post dated cheque dated 11.3.2010 is stated to be on 10.6.2009 as per the case set up by the complainant. But Ext.D-1 stop payment instruction letter is seen issued as early as on 5.12.2005. The alleged date of transaction and the handing over of Ext.P-1 post dated cheque dated 11.3.2010 is stated to be on 10.6.2009 as per the case set up by the complainant. But Ext.D-1 stop payment instruction letter is seen issued as early as on 5.12.2005. Therefore, the view taken by the trial court that these aspects raise heavy suspicion about the believability of the case set up by the complainant cannot be found fault with. If actually the transaction had taken place only on 10.6.2009, then it cannot be presumed that the accused would have deliberately issued false plea for stop payment at a prior point of time on 5.12.2005 as per Ext.D-1. 7. The Apex Court in the judgment in Laxmi Dyechem v. State of Gujarat reported in (2012) 13 SCC 375 : 2013 (1) KLT 167 SC has held that dishonour of cheques due to stop payment memo issued by the drawer accused would also ordinarily attract the offence punishable under Sec. 138 of the N.I. Act, but that in such cases, the accused could establish a case that for bona fide reasons, there was dispute regarding the very entitlement of the amount and that he had issued stop payment memo to the bank due to such bona fide dispute, etc., then the statutory presumption under Sec.139 of the N.I. Act, could be rebutted and in such a case, the burden is heavily shifted to the complainant to prove his case beyond reasonable doubt. In this case, the view taken by the trial court that the accused could successfully rebut the presumption in view of the circumstances arising out of Ext.D-1 stop payment memo cannot be said to be legally wrong. It is on this basis that the trial court has held that in view of Ext.D-1, the burden is quite heavy on the complainant to prove his case that the transaction has taken place in 2009 as alleged by him and in view of paucity of evidence in that regard, the trial court has given the benefit of acquittal to the accused. The said findings of facts made by the trial court, which led to the acquittal, cannot be said to be perverse or illegal. Merely because another view is plausible, is no ground to interfere with the considered verdict of acquittal. 8. The said findings of facts made by the trial court, which led to the acquittal, cannot be said to be perverse or illegal. Merely because another view is plausible, is no ground to interfere with the considered verdict of acquittal. 8. In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in (2012) 5 SCC 789 : 2012(4) Supreme 72 , the Apex Court has held as follows:- “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. 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 his innocence.” Further, in the case Pudhu Raja and another Vs. State reported in (2012) 11 SCC 196 : (2013) 1 SCC (Cri) 430 the Apex Court has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. 9. On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion that even if appeal is entertained, there is very little scope of any interference with the conclusive findings of the court below, which led to the acquittal in the impugned judgment. Accordingly, this Court is constrained to hold that the Leave Petition is bereft of any merit and accordingly, the same is dismissed.