C. Antony
Vs. K.G. Raghavan Nair [2002] Insc 460 (1 November 2002)
N Santosh Hegde & B P Singh. 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 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 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 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.
Back