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CASE NO.: Appeal (crl.)  1433-1434 of 2007

PETITIONER: John K. John

RESPONDENT: Tom Varghese & Anr

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T [Arising out of SLP (Crl.) No. 6038-6039 of 2005]

S.B. SINHA,  J :

1.      Leave granted.          2.      The complainant is before us being aggrieved by and dissatisfied with  a judgment and order dated 24.08.2005 passed by a learned Single Judge of  the High Court of Kerala in Crl. R.P. Nos. 2255 and 2256 of 2004 whereby  and whereunder the judgment of conviction and sentence passed by the  learned Trial Judge and affirmed by the Appellate Court, was set aside.   

3.      Respondent allegedly issued two cheques in favour of the appellant  herein.  The said cheques when presented were dishonoured for want of  insufficient funds.  As despite service of notice, the respondent did not make  any payment, two complaint petitions were filed against him.   

4.      The question which arose for consideration before the learned Trial  Judge and consequently before the Court of Appeal as also the Revisional  Court was as to whether the said cheques had been issued towards discharge  of any existing debt.   

5.      Relationship between the parties is not in dispute.  The complainant  used to run chitties.  Respondent was a subscriber to three chitties conducted  by the firm of the appellant.  In respect of one of the chitties, the bid was  held on 7.10.1997 for a sum of Rs. 1,00,000/-.  The amount was paid on  3.11.1997.  Bid was again made by the respondent in relation to another  chitty on 7.04.1998, for a sum of Rs. 1,00,000/-.  The amount was paid on  25.06.1998.  Allegedly, Respondent committed defaults in payment of the  instalments in relation thereto with effect from 7.04.1998.   

       Indisputably, a suit for realization of the said amount was filed by the  appellant against the respondent in the Court of the Subordinate Court,  Kottayam which was marked as O.S. No. 1 of 2000.  Another suit being O.S.  No. 168 of 2000 was instituted before the Munsiff Court, Changancherry  claiming a sum of Rs. 55,900/-.  Respondent, apart from the aforementioned  two chitties, was a subscriber to another chitty for a sum of Rs. 50,000/-.  It  was not prized by the respondent.  On an allegation that the respondent  along with three others had borrowed a sum of Rs. 1,00,000/- from him on  26.03.1998 wherefor he executed a demand promissory note and as despite  demand, the said amount was not paid to him, the appellant instituted  another suit being O.S. No. 362 of 1999 in the Subordinate Court, Kottayam  for recovery of a sum of Rs. 1,00,000/- with interest.

6.      Appellant herein admittedly was conducting chitty transactions in the  name of a firm known as \021Karappara Chitty Funds\022.  He is a partner of the  said firm.  The suits were instituted by him representing the said firm.  

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Appellant contended that despite the fact that the respondent herein was a  defaulted subscriber of two prized chitties, he took personal loan from him  in his personal capacity.

7.      Before the learned Trial Judge, the respondent examined two  witnesses who proved the aforementioned fact.  The learned Trial Judge, in  its judgment, took notice of the pendency of the several civil litigations by  and between the parties hereto.  It, however, proceeded on the basis that as  admittedly cheques have been issued by the respondent which on  presentation were not honoured, he committed an offence under Section 138  of the Negotiable Instruments Act (for short \023the Act\024).  The said findings of  the learned Trial Judge was upheld in appeal by Shri K. Ramakrishnan,  learned Additional Sessions Judge by a judgment and order dated  17.03.2004.

8.      The High Court, however, in the revision application filed by the  respondent herein opined that the learned Trial Judge as also the Appellate  Court could not have rejected the evidence adduced by the respondent and in  particular those of DWs 1 and 2 in view of the fact that admitted and proved  facts strengthened their versions or at least probabilised the same.  Holding  that the respondent herein has successfully rebutted the presumption arising  under Section 139 of the Act, it was held that the appellant did not succeed  in proving that the respondent had borrowed any sum for which the said  cheques were issued.

9.      Mr. B.V. Deepak, learned counsel appearing on behalf of the  appellant, submitted that the High Court was not correct in reversing the  findings of the learned Trial Judge as also the Court of Appeal in exercise of  its revisional jurisdiction.  There was no reason, the learned counsel  contended, as to why a presumption in terms of Section 139 of the Act could  not have been raised against the accused as admittedly the cheques were  issued by him which, on presentation, were dishonoured.

10.     Relationship between the parties is not in dispute.  The complainant is  a partner of a firm which is in the business of running chitty fund.  The fact  that the respondent subscribed three chitties and that he could not pay the  instalments of the prized amount is not in dispute.  Pendency of three civil  suits filed by the firm through the appellant against the respondent is also not  in dispute.  The High Court upon analyzing the materials brought on records  by the parties had arrived at a finding of fact that in view of the conduct of  the parties it would not be prudent to hold that the respondent borrowed a  huge sum despite the fact that the suits had already been filed against him by  the appellant.  Presumption raised in terms of Section 139 of the Act is   rebuttable.  If, upon analysis of the evidence brought on records by the  parties, in a fact situation obtaining in the instant case, a finding of fact has  been arrived at by the High Court that the cheques had not been issued by  the respondent in discharge of any debt, in our opinion, the view of the High  Court cannot be said to be perverse warranting interference by us in exercise  of our discretionary jurisdiction under Article 136 of the Constitution of  India.  The High Court was entitled to take notice of  the conduct of the  parties.  It has been found by the High Court as of fact that the complainant  did not approach the court with clean hands.  His conduct was not that of a  prudent man.  Why no instrument was executed although a huge sum of  money was allegedly paid to the respondent was a relevant question which  could be posed in the matter.  It was open to the High Court to draw its own  conclusion therein.  Not only no document had been executed, even no  interest had been charged.  It would be absurd to form an opinion that  despite knowing that the respondent even was not in a position to discharge  his burden to pay instalments in respect of the prized amount, an advance  would be made to him and that too even after institution of three civil suits.   The amount advanced even did not carry any interest.  If in a situation of this  nature, the High Court has arrived at a finding that the respondent has  discharged his burden of proof cast on him under Section 139 of the Act, no  exception thereto can be taken.  

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11.     It is now a well-settled principle of law that this Court in exercise of  its jurisdiction under Article 136 of the Constitution of India would  ordinarily not interfere with the judgment of acquittal, if two views are  possible.

       In M.S. Narayana Menon Alias Mani v. State of Kerala and Another  [(2006) 6 SCC 39], this Court held: \02354. In any event the High Court entertained an  appeal treating to be an appeal against acquittal,  it was in fact exercising the revisional  jurisdiction. Even while exercising an appellate  power against a judgment of acquittal, the High  Court should have borne in mind the well-settled  principles of law that where two views are  possible, the appellate court should not interfere  with the finding of acquittal recorded by the  court below.\024

[See also Mahadeo Laxman Sarane & Anr. v. State of Maharashtra,  2007 (7) SCALE 137]   12.     For the reasons aforementioned, there is no merit in these appeals  which are dismissed accordingly.