Full Judgment Text
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CASE NO.:
Appeal (crl.) 1748 of 1996
PETITIONER:
C. Antony
RESPONDENT:
K.G. Raghavan Nair
DATE OF JUDGMENT: 01/11/2002
BENCH:
N Santosh Hegde & B P Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE, J.
This appeal by special leave is preferred against the
judgment of the High Court of Kerala at Ernakulam dated
17.11.1995 made in Criminal Appeal No.438/93 whereby the
appellant herein was found guilty of an offence punishable
under Section 138 of the Negotiable Instruments Act (the Act),
and was convicted and sentenced to pay a fine of Rs.37,500/-
and in default to undergo RI for a period of 3 months. The High
Court had further directed that out of the fine, if realised, a sum
of Rs.34,500/- should be paid to the respondent herein by way
of compensation.
Briefly stated, the prosecution case is that the respondent
herein on 1.11.1990 had advanced a cash sum of Rs.26,500/-
for expansion of the appellant’s hospital and towards the
repayment of the said amount, the appellant had issued a
cheque for the said sum which when presented to the bank, was
dishonoured with an endorsement "Payment stopped by the
drawer". The respondent after issuing the required statutory
notice, filed a complaint against the appellant for offence under
Section 138 of the Act, as stated above. The plea of the
appellant was that no cheque was issued to the respondent nor
any amount was borrowed from him. He stated that the cheque
in question was a blank cheque issued to one Chandrappa
Panicker in October, 1985 as security for future instalments of
amount if due from the appellant in a chit transaction but the
said Panicker did not return the cheque even after the chit
transaction was over and the said cheque was misused by the
respondent in collusion with said Panicker.
Learned 1st Class Magistrate, Cherthala, after trial, came
to the conclusion that the respondent had failed to establish the
payment of money as alleged by him. For this, he primarily
relied on the fact that according to the complainant, the
respondent did not know the appellant herein personally and he
advanced the said sum of money at the instance of an advocate
Vijay Kumar in the office of the said advocate. But the
respondent had not examined said Vijay Kumar to prove this
fact. The trial court also held that the respondent had not given
any reason whatsoever for not examining this witness. The trial
court also held that the respondent’s case that the cheque in
question Ex. P-1 was filled up by the appellant and brought to
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the office of Vijay Kumar could not be accepted because of the
difference in the ink used in writing of the name and amount in
the cheque and the ink used in the signature portion of the
cheque. This, according to the trial court, showed that the case
of the appellant that he had given a blank cheque signed was
more probable. The trial court also took into consideration the
fact that though the respondent had filed a civil suit for the
recovery of the amount allegedly paid to the appellant under the
cheque in question did not pursue the same, hence, from this
fact also the trial court came to the conclusion that the
appellant’s version that the cheque in question was given in a
blank condition to Chandrappa Panicker and the said Panicker
being very close to the respondent had colluded with the
respondent to make a false complaint against the appellant. The
trial court also took note of the fact that the said Chandrappa
Panicker was seen in the court hall during the trial but was not
examined as a witness in support of the respondent’s case. In
this view of the matter, it came to the conclusion that the
complainant/respondent has not proved his case and
accordingly dismissed the complaint.
In appeal, however, the High Court took a contra view of
the matter. The High Court held that the appellant had failed to
produce the other counterfoils of his cheque-book to show
whether other cheques had been issued between 1985 and 1990
to establish the fact that the cheque in question was in fact
issued in the year 1985. The High Court also drew an adverse
inference against the appellant for not examining himself. On
the above basis, it found the appellant guilty of an offence
punishable under Section 138 of the Act and, accordingly,
convicted and sentenced him, as stated above.
We have heard learned counsel for the parties as also
perused the evidence as well as the judgments of the two courts
below. From the judgment of the trial court, we notice that the
learned Magistrate has given cogent reasons for not accepting
the evidence led on behalf of the respondent and on that basis
he came to the conclusion that the complainant/respondent has
not established his case. While the High Court on
reappreciation of the evidence, has come to a different
conclusion on entirely new grounds without considering the
material considered by the trial court and as held above,
convicted the appellant. While doing so, the High Court had
lost sight of the fact that it was sitting as an appellate court
against a judgment of acquittal passed by the trial court,
therefore, there was an obligation on the part of the High Court
to come to a definite conclusion that the findings of the trial
court are either perverse or the same are contrary to material on
record because the High Court could not have substituted its
finding merely because another contrary opinion was possible
based on material on record. It was the duty of the High Court
to have first come to the conclusion that the conclusions arrived
at by the trial court for good reasons are either unreasonable or
as stated above, contrary to the material on record. In the
absence of any such finding in our opinion, the High Court was
in error in taking a contra view merely because another view
was possible on the material on record.
This Court 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 a case of acquittal, the appellate
court, should not only consider every matter on record having a
bearing on the question of fact and the reasons given by the
courts below in support of its order of acquittal, it must express
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its reasons in the judgment which led it to hold that the acquittal
is not justified. In those line of cases this Court has also held
that the appellate court must also bear in mind the fact that the
trial court had the benefit of seeing the witnesses in the witness
box and the presumption of innocence is not weakened by the
order of acquittal, and in such cases if two reasonable
conclusions can be reached on the basis of the evidence on
record, the appellate court should not disturb the finding of the
trial court. See Bhim Singh Rup Singh v. State of Maharashtra
(1974 3 SCC 762) and Dharamdeo Singh & Ors. v. The State of
Bihar (1976 1 SCC 610).
If we examine the judgment of the two courts below in
this appeal in the light of the law laid down by this Court in the
above cited cases, it is to be seen that the trial court came to the
conclusion that non-examination of advocate Vijay Kumar was
fatal to the case of the complainant/respondent because it is the
case of the respondent that he came to know the appellant
through said Vijay Kumar and the amount in question was paid
in the office of said Vijay Kumar. In such a situation, the trial
court came to the conclusion that when the appellant has set up
a possible defence of having given a blank cheque to
Chandrappa Panicker in regard to a chit transaction, therefore, it
was necessary for the respondent complainant to have examined
the said Vijay Kumar to establish the fact that Vijay Kumar
indeed, persuaded the respondent to advance the cash. We also
think this was a very necessary piece of evidence to establish
the fact that the respondent had in fact advanced a sum of
Rs.26,500/- to the appellant. From a perusal of the judgment of
the High Court in this regard, we find that there is absolutely no
discussion on this point at all. The non-consideration of this
aspect of the case by the High Court in our opinion, runs
counter to the principles laid down in the above referred
judgments of this Court.
Then again, it is to be noticed that the trial court also took
into consideration the plea of the appellant that the cheque in
question was given in a blank state to Chandrappa Panicker and
he being a close friend of the respondent in collusion with each
other misused the said cheque to defraud the appellant. The trial
court also observed that non-examination of Chandrappa
Panicker has also weakened the case of the respondent
especially in view of the fact that the court had noticed that the
said Chandrappa Panicker was seen in the premises of the
court-house at the time of trial. This is also a relevant factor on
which the trial court relied upon but the High Court did not
consider the effect of the said default on the part of the
respondent. The third circumstance relied upon by the trial
court is in regard to the difference in the ink found in the body
of the cheque as well as in the signature of the appellant. It is
the case of the respondent that the appellant had filled up the
cheque in its entirety including its signature and had brought
the cheque to the office of Vijay Kumar to be handed over to
the respondent but the learned Magistrate on a perusal of the
cheque, found that the ink used in the body of the cheque was
different from the ink used in the signatrue on the cheque,
therefore, he drew an inference that the case put forth by the
respondent was doubtful, hence, could not be accepted. Even in
this regard the High Court has failed to apply its mind. Having
considered the findings delivered by the trial court in regard to
the above 3 points, we are of the opinion that the trial court was
justified in coming to the said conclusion because of the above
three deficiencies pointed out by the trial court, and that the
respondent’s complaint ought to fail. In such a situation, we are
of the opinion that the High Court fell in error in reappreciating
the case of the respondent on a totally different perspective
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without coming to the conclusion that the findings given by the
trial court on the above three points are either irrelevant or
contrary to material on record. Therefore, following the law laid
down by this Court in the abovesaid cases of Bhim Singh Rup
Singh (supra) and Dharamdeo Singh (supra), we are of the
opinion that the High Court was in error in reversing the finding
of acquittal recorded by the trial court.
For the reasons, this appeal succeeds and the same is
allowed, setting aside the impugned judgment of the High
Court.