Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 347 (KER)

AJITHKUMAR, S/O. RAMAYYAN ACHARI v. STATE OF KERALA

2017-02-20

SUNIL THOMAS

body2017
ORDER : The revision petitioner herein faced the trial before the Judicial First Class Magistrate's Court-IV, Nedumangad in ST No. 116/2013 for offence punishable under Section 138 of the NI Act, initiated by the second respondent herein. 2. It was alleged that, the accused had borrowed a sum of Rs.8,50,000/- from the complainant on 20/5/2011 and towards the discharge of the liability, executed and delivered a cheque dated 1/7/2011 for a sum of Rs.8,60,000/-, inclusive of Rs.10,000/- towards the interest. The cheque was returned dishonoured on presentation. A statutory notice was issued, which was not replied. Hence, the complaint was laid invoking Section 138 of the NI Act. 3. The trial court, on an evaluation of the documentary and oral evidence let in by the both sides, found the accused guilty, convicted and sentenced to undergo SI for one year and to pay a fine of Rs.8,50,000/-. A default sentence was also incorporated. This was carried in appeal. The appellate court, after re-evaluation of the entire evidence, concurred with the findings of the trial court regarding the conviction, but modified the sentence to S.I till the rising of the court and to pay a sum of Rs.8,50,000/- as fine with default sentence to undergo SI for six months. It was further directed that, the fine amount shall be given to the complainant as compensation under Section 357(1)(b) of Cr.P.C. This is challenged in this revision on the ground that the courts below have committed material irregularity in the appreciation of the facts and in the application of law and, hence the impugned judgment is liable to be revised. 4. Heard both sides and examined the records. 5. There is no dispute that the parties are known to each other. The records also indicate that, both were involved in several transactions and were known to each other since long. Admittedly, the cheque was one drawn on the bank of the accused. The defence set up by the accused was that, he had not borrowed the money from the complainant nor had any reason to borrow the money. He denied the entire transaction and also execution of the cheque. It was also stated that cheque was not signed by him. According to the accused, the defacto complainant somehow or other managed to procure the cheque, which was filled up and presented to set up a false case. He denied the entire transaction and also execution of the cheque. It was also stated that cheque was not signed by him. According to the accused, the defacto complainant somehow or other managed to procure the cheque, which was filled up and presented to set up a false case. To prove their case, both sides relied on their oral testimony. It is pertinent to note that evidence adduced by the complainant proves the dishonour of the cheque and non payment of money. Hence, both the courts ventured into an enquiry as to whether the evidence was sufficient to prove the due execution of the cheque. It is to be noted that, there was absolutely no reasonable indication as to how the cheque of the accused reached the hands of the complainant. The vague defence was that, it was clandestinely procured by the complainant. No attempt was made by the accused to disprove the signature on the cheque. On the other hand, PW1 in his evidence had cogently deposed that the cheque was executed in his presence. This evidence has to be appreciated in the background that though a lawyer notice was issued, it was neither replied nor any objection raised denying the transaction, which was reasonably expected from an ordinary prudent man especially when he has a defence case that the cheque was a false one. 6. Learned counsel for the revision petitioner contended that, the execution of the cheque was not proved. It was further contended that, the courts below did not venture to consider the due execution of the cheque by demanding other material to prove the due execution. It was pointed out that, the source of money was not cogently proved. However, in paragraph 12 of the appellate court's judgment, the appellate court has dealt with source of money as spoken by PW1 in detail. According to PW1, he had received Rs.12 Lakhs as pensionary benefit in three installments and from that amount, Rs.10 Lakhs was paid by him to his sister. When the accused sought the present loan, PW1 got the money back from the sister and it was paid to the accused. The contention of the petitioner herein was that, the sister of the complainant was not examined, that there was no evidence to establish the receipt of money as pension and payment of that money to the sister. When the accused sought the present loan, PW1 got the money back from the sister and it was paid to the accused. The contention of the petitioner herein was that, the sister of the complainant was not examined, that there was no evidence to establish the receipt of money as pension and payment of that money to the sister. According to the learned counsel for the revision petitioner, the courts below committed grave error in not relying on the decisions reported in John K. Abraham v. Simon C. Abraham and Another (2013 (4) KHC 853) and in Subramani K. v K. Damodara Naidu (2014 (4) KHC 533). It was pointed out that, in both the cases the Hon'ble Supreme Court relied on the lack of evidence regarding the source of income as a material factor sufficient to disbelieve the case of the complainant. It is true that, in the case at hand, both the courts accepted the versions spoken by PW1 regarding the source of income. The lower appellate court had considered this aspect in detail and concurred with the conclusion of the trial court. In both the decisions referred to above, the Hon'ble Supreme Court had held that source of money was an important factor to be considered while appreciating the evidence regarding the due execution. In both the decisions cited above, lack of evidence regarding the source of money, coupled with several other material factors cast serious doubt on the case of the complainant. In John K. Abraham's case,(cited supra), it was held that the complainant was not aware of the date when the amount was advanced, who wrote the cheque, when and where exactly the transaction took place and that there were notable contradictions and serious lucuna in the evidence of the complainant. Further, in Subramani's case (supra), the case set up by the complainant, who was a lecturer in a Government College, was that the source for payment came from the sale of an item of property. The complainant, being a government employee, was governed by the Government Servants' Conduct Rules which prescribed the mode of transaction in relation to the property. In the income tax return, the sale of the property was not reflected. Consequently, the court concluded that there is no evidence to prove the source. 7. The complainant, being a government employee, was governed by the Government Servants' Conduct Rules which prescribed the mode of transaction in relation to the property. In the income tax return, the sale of the property was not reflected. Consequently, the court concluded that there is no evidence to prove the source. 7. In both the decisions referred to above, the Apex Court did not lay down the principle that, the lack of proof regarding the source of money was the single litmus test to doubt the execution of the cheque. Definitely, it was an important factor to be taken note of while evaluating the evidence. Here in the case at hand, there were no doubtful circumstances and versions spoken by the complainant regarding the source. The source of money was satisfactorily explained and both the courts have accepted it. In revision, there is a limited scope for interfering in a concurrent finding of fact. 8. It was further contended by the learned counsel for the accused that, the complainant did not disclose the facts constituting the transaction. It was contended that, in K.K. Divakaran v. State of kerala and another (Cr.R.P.No.1689/2009) this Court had held that it was the duty of the complainant to disclose the entire facts in relation to the transaction. The decision only held that suppression of material facts in the notice and complaint was fatal to the complainant. The facts available indicate that all the material factors were disclosed by the complainant with sufficient precision. Hence, the contention of the learned counsel for the revision petitioner that, the complaint was bereft of details, is not sustainable. 9. Law does not prescribe that the entire facts relating to the transaction between the parties are to be disclosed and what the law demands is only the disclosure of the material factors essential for the consideration of the issue in dispute. It was also contended by the learned counsel for the revision petitioner that, the court below ventured into an exercise of comparing the signature on the cheque to believe the version of the accused. It is pertinent to note that, even though the court is the expert of experts, it has been consistently held that, it will not be safe to rely on the expertise of the court alone in the matters of this nature which require scientific evaluation. It is pertinent to note that, even though the court is the expert of experts, it has been consistently held that, it will not be safe to rely on the expertise of the court alone in the matters of this nature which require scientific evaluation. But, the accused in this case did not demand for an expert opinion. Hence, nothing prevented the trial court or the appellate court in comparing the signature and to consider whether it materially differed. Therefore, the above contention of the learned counsel for the revision petitioner has no legs to stand. 10. It is clear that the available materials were evaluated by both the courts in the background of the weak defence set up, the fact that the accused was otherwise involved in several monetary liabilities and all other attending circumstances. The factual findings of the both the court are not liable to be interfered in the absence of anything to establish that there was material irregularity in the appreciation of the facts, application of law and that the court have committed any irregularity. Hence, I find no reason to interfere in the concurrent findings of facts. In the result, the revision is without any merits and is dismissed.