(2012) 281 KLR 145

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

SATURDAY, THE 1ST DAY OF DECEMBER 2012/10TH AGRAHAYANA 1934

CRL.A.No. 2347 of 2006 ( )

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CC.131/2002 of J.M.F.C.,PERUMBAVOOR

APPELLANT(S)/COMPLAINANT:

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ABDUL KALAM, S/O.PAREED, THENOOR VEEDU, PALLIPARAM KARA, MARAMPILLY VILLAGE.

BY ADV. SRI.KOSHY GEORGE

RESPONDENT(S)/ACCUSED:

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1. JOSE PLACKAL VEEDU, VADAKKAMCHERRY P.O., THRISSUR DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

R1 BY ADV. SRI.C.P.UDAYABHANU BY PUBLIC PROSECUTOR SRI. ROY THOMAS

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01- 12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

CR N.K. Balakrishnan, J.

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Crl. Appeal No. 2347 of 2006

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Dated: 01-12-2012

Head Note:-

Negotiable Instruments Act, 1881 - Section 138 - Admission of the facts - Statement of the witness - Even if a wrong question was put or an incorrect suggestion was put by the defence counsel to the prosecution witnesses that will not always tantamount to admission of the facts stated by the prosecution nor can the prosecution case be built solely based on such wrong suggestions or wrong questions put by the counsel appearing for the accused. If the evidence tendered by that witness suffers from intrinsic infirmities or is inherently weak that a Court of law cannot recognize or accept such a statement, then even if that witness is not cross-examined, the Court can reject such a statement of the witness. The prosecution has to stand on its own legs.

J U D G M E N T

This appeal is filed by the complainant in a case filed under Sec. 138 of the N.I. Act where the accused was acquitted under Sec. 255 (1) of Cr.P.C.

2. The case of the complainant is that the accused borrowed Rs. 3,00,000/- from the complainant and towards repayment of the said amount Ext.P1 cheque dated 26-2- 2002 was issued which on presentment was dishonoured on the ground of insufficiency of fund. Statutory notice was sent. The accused/respondent did not pay the amount and hence the complaint was filed.

3. Since the respondent pleaded not guilty the complainant himself was examined as P.W.1 and Exts. P1 to P4 were marked. Two witnesses were examined on the side of the defence as DW1 and DW2 and Exts. D1 to D8 were marked.

4. The accused contended that he had not borrowed Rs. 3,00,000/- as alleged by the complainant and that there were earlier transactions between the complainant and the accused. The lorry owned by the accused was stolen away. There were blank signed cheque leaves in the dash board of that lorry. Misusing one of the cheque leaves the complaint has been filed.

5. The court below found that there was an earlier transaction as per which Rs. 1,50,000/- was due from the accused. Therefore, the court below found that it was highly improbable that when a person who was already liable to pay Rs. 1,50,000/- to the complainant and when he did not pay the amount, the complainant would again lend Rs. 3,00,000/- to the accused. The improbabilising factors were projected by the court below to find the case of the complainant unacceptable.

6. The learned counsel for the appellant submits that the court below went wrong in disbelieving the case of the complainant.

7. In the affidavit filed by the complainant in lieu of chief examination it was stated that a sum of Rs. 3,00,000/- was lent by him to the accused in January 2002 and when he demanded for return of money, Ext.P1 cheque dated 26- 2-2002 was issued to him. He further swore that the cheque was signed by the accused in his presence. The number of the cheque leaf is 236316 as seen in Ext.P1. The fact that when Ext.P1 was presented for collection it was dishonoured on the ground of insufficiency of fund, is not disputed. It is also not disputed that when the dishonour memo was received he sent the statutory notice to the accused demanding payment of the amount covered by Ext.P1. It is also the admitted case that on receipt of the statutory notice the accused sent a reply to the same. It was admitted by P.W.1 that the accused used to supply cashew nuts to him in his lorry. The suggestion put by the learned counsel for the accused to P.W.1 was that the lorry belonging to the complainant was stolen away by the accused on 21-5-2001 and pertaining to the same a complaint was given to the police. The copy of that complaint was marked as Ext.D1. Cognizance was taken by the learned Magistrate against the complainant as C.C. 117/2003. The learned counsel for the complainant would submit that the suggestion put by the defence is absolutely false and it would improbabilise the defence set up by the accused. Ext.D4 is the copy of the F.I.R. which shows that the allegation made by the complainant therein namely, the first respondent herein was that his lorry was stolen away by P.W.1 herein and others on 10-6-2002. Ext.D5 the charge sheet in Crime No. 445/2003 was filed alleging commission of offences under Sec. 406, 420 and 120 B etc. It was mentioned in the charge-sheet that accused Nos. 1 to 3 in Ext. D5 committed theft of the lorry belonging to the complainant therein who is the first respondent herein on 21-5-2001. It was also mentioned that two blank cheque leaves which were in that lorry were also made use of by the accused mentioned in Ext.D5 charge-sheet. It is not necessary to dwell much on those aspects since the registration of the F.I.R. and the filing of the charge sheet took place long after Ext.P1 cheque was dishonoured and the statutory notice was sent pertaining to the same. It is seen that so many incorrect suggestions were put to P.W.1 by the defence counsel.

8. The learned counsel for the complainant would submit that those inconsistent case suggested by the defence when P.W.1 was in the witness box would unravel the fallacy of the case put forward by the accused. But it is seen that a complaint was given by the appellant herein against the wife of the accused herein alleging that she had borrowed Rs. 1,50,000/- in November, 2001 and to discharge that debt cheque was issued which on presentment was bounced due to insufficiency of fund. In Ext.D1 it was mentioned that the cheque mentioned therein was returned dishonoured on 7-2-2002 and accordingly, a notice was sent to the accused therein on 16-2-2002. Ext.D2 is the copy of that notice dated 16-2-2002. To that notice Ext. D3 reply was sent by the respondent herein on 22-2-2002 denying the contention that she (wife of the respondent) had borrowed Rs. 1,50,000/- from the complainant. In Ext.D3 it was stated that the cheque No. 461140 mentioned in Ext.D2 was the cheque leaf belonging to her husband, the respondent herein. It was further stated that the cheque book containing 23 blank cheque leaves was lost a few months prior to Ext.D3 and when her husband could come to know that the cheque leaf was irrecoverably lost she sent a written intimation to the Canara Bank, Chelakkara Branch to close the account. It was also mentioned in Ext. D3 that besides two other blank signed cheque leaves of Indian Bank, Thrissur maintained by the respondent herein were also lost. Therefore, in Ext. D3 it was stated by the respondent's wife that cheque leaf number 461140 was one among the 23 cheque leaves of Canara Bank, Chelakkara Branch, which stood in the name of her husband and that those cheque leaves and two other signed blank cheque leaves of her husband maintained in Indian Bank, Thrissur which were kept in the dash box of the lorry KL8 P- 4200 were lost when the lorry was stolen away from the house compound of the accused herein about 9 months prior to Ext. D3. Therefore, it is not a case where a story was subsequently created by the accused after the statutory notice in this case was received by the accused. The fact that a complaint had earlier been filed against the respondent and his wife contending that Rs. 1,50,000/- which was borrowed by the accused was not repaid and the cheque issued for that purpose was returned as account closed etc. would go a long way against the case set up by the complainant that a further sum of Rs. 3,00,000/- was borrowed by the accused from the complainant. Learned Magistrate has relied upon Ext.D3 to hold that the case put forward by the defence is probable since that was the case set up by the accused at the earliest point of time; that is even prior to the date of Ext.P1. Ext.P1 bears the date 26-2-2002 whereas Ext.D3 reply was sent to Ext.D2 notice on 22-2-2002. It was also pointed out that in Ext.D2 notice nothing was stated about Ext.P1 cheque for Rs. 3,00,000. It is also seen that in the affidavit filed by the complainant in lieu of chief examination, originally it was written that the transaction was had in 2001 December and subsequently it was corrected to make it appear that the transaction took place in January 2002. Except the interested version of the complainant as could be seen in the 'proof affidavit' there is nothing to show that the lending of Rs. 3,00,000/- was had in January 2002. If as a matter of fact, the lending was in January 2002, certainly that would demolish the case of the complainant since in Ext.D2 it was stated that the cheque for Rs. 1,50,000 which was presented for encashment was returned dishonoured on 7-2-2002. In cross-examination it was admitted by P.W.1 that the sum of Rs. 1,50,000/- was borrowed by the respondent herein and that it was when the said amount was due from the accused he again lent Rs. 3,00,000/- to the accused. That itself will unfold the unveracity of the case put forward by the complainant. It was stated by P.W.1 that when he lent Rs. 3,00,000/- to the accused he did not obtain any security or document evidencing the lending of that money and that believing the words of the accused that the would repay the amount within two months of the lending, the amount was given. He further stated that Ext.P1 cheque was brought by the accused to his house and handed it over in February, 2002. He then says that the cheque was filled up by a person who had accompanied the accused. The contention that was raised by the accused before the court below was that it is highly improbable that when the accused was liable to pay Rs. 1,50,000/- which had been borrowed earlier and which remained unpaid the complainant would against lend Rs. 3,00,000/-, that too without obtaining any document. It was only later the accused was stated to have given Ext.P1 cheque. The whole story put forward by the complainant bristles with the inherent improbabilities and intrinsic infirmities. It is true that the contention raised by the accused that the signed cheque leaves were kept in the lorry and that when the lorry was committed theft of the two signed cheque leaves mentioned in the two complaints and other cheque leaves were committed theft of may not be acceptable as such since it is against the normal human course of conduct to keep signed cheque leaves in the lorry.

9. Even if a wrong question was put or an incorrect suggestion was put by the defence counsel to the prosecution witnesses that will not always tantamount to admission of the facts stated by the prosecution nor can the prosecution case be built solely based on such wrong suggestions or wrong questions put by the counsel appearing for the accused. If the evidence tendered by that witness suffers from intrinsic infirmities or is inherently weak that a Court of law cannot recognize or accept such a statement, then even if that witness is not cross-examined, the Court can reject such a statement of the witness. The prosecution has to stand on its own legs. True, the case suggested by the defence also may have to be considered by the court in analysing the acceptability or otherwise of the prosecution case, while weighing and balancing the probabilities factor. Here, the probabilities factor echoes more in favour of the case put forward by the defence. The case advanced by the complainant that he had lent Rs. 3,00,000/- in the manner stated in the complaint appears to be inherently improbable. DW1 was examined to prove that he was the driver of the lorry which was alleged to have been stolen away in the year 2001. DW2 was examined to say that with regard to the dispute as to the taking away of the lorry etc. and that there was a settlement talk . But he has admitted that he does not know the financial transaction between the complainant and the accused. His evidence is not of any help to the accused. Hence, it is not necessary to expatiate on the evidence given by DW1 and DW2. But the documents produced by the accused and the evidence given by P.W.1 alone may have to be considered. It was already found that the evidence given by P.W.1 does not radiate confidence in the mind of the Court. The learned Magistrate who had opportunity to watch the demeanor of the witnesses and to assess the evidence correctly. The finding entered by the trial Court which considered all the aspects may have to be given due weight. This is an appeal against the judgment of acquittal.

10. As said earlier, the transaction averred suffers from intrinsic infirmities. I find no reason to hold that there was total non-consideration or perverse consideration by the court below of the evidence adduced by the parties. As such, I find no reason to upset the verdict of acquittal.

In the result, this Crl. Appeal is dismissed.

Dated this the 1st day of December, 2012.

N.K. Balakrishnan, Judge.

ani.