Appellate Court Shall Not Disturb Finding Of Acquittal & Substitute Same To Convict Accused Merely Because Another View Is Possible: Kerala HC Reiterates

Observing that the Trial Court had concluded that cheque was not issued towards a legally enforceable debt after analyzing the oral testimonies of prosecution & defence witnesses, the Kerala High Court found that the appeal is preferred against an order of acquittal under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), and reiterated that merely because another view is possible, on re-appreciation of the evidence, the Appellate Court shall not disturb the finding of acquittal and substitute its own findings to convict the accused.

The High Court held that an Appellate Court should be slow in interfering with an order of acquittal, an only when the conclusion arrived by the Trial Court is patently illegal and manifestly erroneous should the Appellate Court step in and interfere with such an order.

The High Court held so while considering the legality and correctness of the judgment passed by the Court of the Judicial First-Class Magistrate, acquitting the first respondent (accused) and holding him not guilty for the offence under Section 138 of the NI Act.

A Single Judge Bench of Justice CS Dias observed that “even before the cheque was presented to the bank for collection, the first respondent had issued stop payment letter to the bank. Ext D1 bank account proves that on the date the cheque was presented for collection, the first respondent had an amount of Rs.2,90,434/- in his bank account, which was sufficient to honour the cheque. Thus, the cheque was not dishonored for ‘insufficient funds’ in the bank account of the first respondent”.

Advocate G. Krishnakumar appeared for the Appellant / Complainant, whereas Advocate Achu Subha Abraham appeared for the Respondent.

The brief facts of the case were that the appellant had filed the complaint alleging that the first respondent had borrowed an amount of Rs.2,00,000/- from him and in the discharge of the debt, the first respondent had issued a cheque, which, on presentation to the bank for collection was returned with an endorsement ‘payment stopped by the drawer’. Although the appellant had issued statutory notice, the first respondent failed to pay the demanded amount. Instead, the first respondent sent a reply notice alleging that he was not liable to pay any amount. Hence, the first respondent committed the offence under Section 138 of the NI Act. The Trial Court after considering the materials on record, however found the first respondent not guilty for the offence under Section 138 of NI Act.

After considering the submission, the Bench stated that no finding in an order passed by a court of competent jurisdiction shall be reversed or altered by an Appellate Court for the mere reason of an irregularity in the proceeding before or during the trial, unless such an irregularity has been occasioned a failure of justice, and further the objection having been raised at the earliest stage of the proceedings.

On a reading of Section 465 of the CrPC and Section 142 of the Indian Evidence Act, and the interpretation of the law made by the Apex Court in case of Pradeep S. Wodeyar v. State of Karnataka [2021 KHC 6768], the Bench observed that it is too late in the day for the appellant to raise a technical contention at the appellate stage, especially after having waived his right to object to defence witness letting in evidence in chief, at the trial stage, by way of affidavits.

Moreover, the Bench pointed that there has been no failure of justice, and no prejudice has been caused to the appellant in the defence witnesses letting in examination in chief by affidavits, warranting this court to step in and set aside the judgment on the said ground.

Thus, the Bench clarified that there is no meaning in indulging in such a futile exercise as sought by the appellant, particularly when no prejudice has been caused to the appellant.

The Bench further found that first respondent had sent a reply notice contending that cheque was issued as per the covenants in the Will deed executed by the father of the parties, wherein the first respondent was directed to pay Rs.2,00,000/- to the appellant as his share in the father’s property.

However, as the appellant refused to register the receipt acknowledging the receipt of payment, the first respondent was constrained to issue stop payment letter to his Bank, which was also duly informed to the appellant, noted the Bench.

The Bench went on note that the appellant in his oral testimony testified that the first respondent had borrowed Rs.2,00,000/- to meet his son’s educational expenses, and in the discharge of the debt, he issued the cheque.

However, the Bench found that the Appellant had bluntly denied that his father had executed a Will deed, although admitted that a suit is pending before the civil court regarding the validity of the Will deed.

“He feigned ignorance on the stipulation in Ext P5 Will deed that the first respondent has to pay him Rs.2,00,000/- and he has to issue a registered acknowledgment”, added the Bench.

Hence, the High Court confirmed the finding of the Trial Court that the first respondent is not guilty of having committed an offence under Section 138 of the NI Act.

Cause Title: C.Y. PAULOSE v. C.Y. ISSAC and Anr. [Neutral Citation: 2023/KER/57497]

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