This Criminal Appeal has been preferred on special leave under Section 378(4) of Criminal Procedure Code against the judgment of the lower appellate court, namely the Additional District and Sessions Judge (Fast Track Court No.1), Chennai dated 17.05.2002 made in Criminal Appeal No.253(A) of 1998.
2. A case was instituted on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai-8 as C.C.No.3024/1996 based on a private complaint for an alleged offence punishable under
<act id=ObGxPokB_szha0nWLtNN section=420>Section 420 </act>r/w 34 IPC against the respondents 1 to 3 herein. In the said case, after trial, the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, pronounced a judgment on 14.12.1998 holding the first respondent herein guilty of an offence punishable under
<act id=ObGxPokB_szha0nWLtNN section=420>Section 420 </act>IPC, second respondent herein guilty of an offence punishable under
<act id=ObGxPokB_szha0nWLtNN section=420>Section 420 </act>r/w 109 IPC and the third respondent herein guilty of an offence punishable under
<act id=ObGxPokB_szha0nWLtNN section=420>Section 420 </act>r/w 34 IPC, convicted them for the above said offences respectively and imposed the following punishments on them:-
i)The first respondent/first accused was sentenced to undergo six months rigorous imprisonment;
ii)The second respondent/second accused was sentenced to undergo three months rigorous imprisonment; and
iii)The third respondent/third accused was sentenced to undergo three months rigorous imprisonment.
(No fine was imposed on any one of the respondents herein.)
3. Challenging the judgment of conviction and order of sentence passed by the trial court (Additional Chief Metropolitan Magistrate, Egmore, Chennai), the respondents herein (accused 1 to 3) preferred an appeal on the file of the Sessions Court, Chennai which was taken on file as Crl.A.No.253(A) of 1998 and was made over to the Additional District and Sessions Judge (Fast Track Court No.1), Chennai. The lower appellate court, namely Additional District and Sessions Judge (Fast Track Court No.1), Chennai, after hearing the appeal, by his judgment dated 17.05.2002 reversed the judgment of the trial court convicting the respondents herein and acquitted all of them of the respective charges for which they were tried. Now, challenging the said judgment of the lower appellate court, the present appeal has been filed under
Section 378(4) Cr.P.C. by the appellant/complainant.
4. The facts leading to the filing of the present appeal, can be summarised as follows:
The appellant herein had preferred a complaint on the file of Central Crime Branch, Chennai against the respondents herein alleging commission of an offence punishable under
Section 420 IPC r/w
Section 34 IPC. The same was registered as Cr.No.627/1995 on the file of the said police. However, after investigation the case was referred as mistake of fact. Thereafter, the appellant herein filed a protest petition praying that his complaint should be taken as a private complaint and the respondents herein/accused 1 to 3 should be prosecuted. After following the procedure prescribed for taking cognizance of an offence on private complaint, the learned Additional Chief Metropolitan Magistrate took the complaint of the appellant on file as C.C.No.3024 of 1996 and issued process against the respondents herein. On appearance of the accused (respondents herein), necessary charge was framed against the accused persons (respondents herein) for an offence punishable under
Section 420 r/w
Section 34 IPC. The charge was framed against the respondents herein and they were made to face the trial based on the following allegations of the appellant herein/complainant:-
The respondents/accused were running an export garment company. The appellant/complainant was a sub-contractor under the respondents herein for making export garments. As such, for expanding his business and for relieving the other partners from the business, the first respondent borrowed a total sum of Rs.11,11,000/- from the appellant/complainant. For the due repayment of the said amount, the second respondent, who is the wife of the first respondent, executed an agreement for sale in respect of a house site at Royapuram belonging to her for a sum of Rs.5,00,000/-. For the balance amount of Rs.6,11,000/-, the third respondent, the sister of the first respondent, executed an agreement for sale in respect of her export garments factory along with the machineries kept therein. The first respondent had issued seven cheques for the amount borrowed from the appellant/complainant. When the cheques were presented for encashment, the same were dishonoured as there was insufficiency of fund. When the same was informed to the first respondent he gave a letter admitting his liability and requesting the appellant to present the cheques again for encashment promising that he would make arrangements for honouring the cheques. The cheques, when presented for the second time for encashment, were dishonoured once again. Thereafter entertaining suspicion regarding the securities, the appellant verified the properties offered as securities regarding which agreements for sale had been executed in favour of the appellant. On such verification, to his shock and surprise, he came to know that all the machineries in export garments factory had been removed and that the house site regarding which the second respondent had executed the agreement for sale in favour of the appellant, had been sold to a third party by the second respondent six months prior to the agreement. Thus the appellant/complainant came to know that he was cheated by all the three accused (respondents herein).
5. The gist of the complaint was that all the three accused cheated the appellant by executing the sale agreement in respect of a property which was already sold to a third party and by executing a sale agreement in respect of the garments factory including its machineries whereas all the machineries had been removed from the said factory. The trial court chose to frame a charge against all the three accused for an offence punishable under
Section 420 IPC r/w
Section 34 IPC. The respondents herein (accused) denied the charge and pleaded not guilty. In the light of such plea, the trial court conducted trial in which four witnesses, including the appellant herein, were examined as P.W.1 to P.W.4 and 17 documents were marked as Ex.P1 to Ex.P17 on the side of the appellant herein/complainant in order to prove the charge against the respondents herein/accused. When the accused were questioned under
Section 313(i)(b) Cr.P.C regarding the incriminating materials, they denied them stating that they were falsely implicated and reiterated that they were not guilty. No witness was examined and no document was marked on the side of the respondents herein/accused.
6. The learned trial judge, considered the evidence brought before him in the light of the arguments advanced on either side and upon such consideration, came to the conclusion that the first accused (first respondent) was guilty of an offence punishable under
Section 420 IPC, second accused(second respondent) was guilty of an offence punishable under
Section 420 r/w 109 IPC and third accused (third respondent) was guilty of an offence punishable under
Section 420 r/w 34 IPC. Based on the said finding, the trial court convicted them and imposed punishments as indicated supra.
7. Challenging the said judgment of conviction of the trial court and the order of punishment, the accused 1 to 3 (respondents herein) preferred an appeal on the file of the lower appellate court under
Section 374 Cr.P.C. The lower appellate court, after hearing both sides, by a detailed judgment giving his reasons allowed the appeal, set aside the conviction and acquitted all the accused of the offences for which they stood charged. Now, it is the turn of the complainant/appellant herein, to challenge the judgment of the lower appellate court under
Section 378(4) after obtaining the leave of the court to appeal against the judgment of acquittal pronounced by the lower appellate court. This court has granted leave to the complainant/appellant herein by an order dated 12.08.2002 made in Crl.O.P.No.19320/2002 and thus the present appeal petition happened to be taken on file as Criminal Appeal No.1205/2002 on the file of this court.
8. The point that arises for consideration in this appeal is, "whether the judgment of the lower appellate court reversing the judgment of conviction pronounced by the trial court and acquitting all the accused (respondents herein) suffers from any defect or infirmity warranting interference by this court in exercise of its appellate power?"
9. Mr.V.S.Ramamurthy, learned counsel advancing arguments on behalf of the appellant, contended that the well considered judgment of the trial court should not have been reversed by the lower appellate court; that the lower appellate court committed an error in coming to the conclusion that the appellant herein/complainant had not proved the charges made against the respondents herein/accused beyond reasonable doubt; that the lower appellate court failed to properly appreciate the fact that the first respondent had borrowed a total sum of Rs.11,11,000/- for which the second and third respondents had executed agreements in respect of an immovable property at No.99, Thoppai Mudali Street, Royapuram, Chennai-13 and the machineries used in the garments factory of the third respondent as collateral securities for Rs.5,00,000/- and Rs.6,11,000/- respectively; that the said properties offered as security by way of executing sale agreements, were not in fact owned by the second and third respondents at the time of execution of the sale agreements; that by offering properties which were not theirs as security, they had committed the offence of cheating; that all the three accused acted with a common intention of cheating the appellant/complainant in making him advance a sum of Rs.11,11,000/-, after getting such collateral security in the form of agreements for sale and that the said aspect was not properly considered by the lower appellate court.
10. It is the further contention of the learned counsel for the appellant that the overwhelming evidence, both oral and documentary, adduced on the side of the appellant/complainant, was simply brushed aside by the lower appellate court as improbable and unbelievable; that the lower appellate court has cited so-called contradictions which are either no contradictions at all or trivial in nature, as the points in support of the conclusion arrived at by the lower appellate court; that the lower appellate court failed to consider the fact that the agreements for sale executed by the second and third respondents were proved not only by the production of the said agreements but also by the parole evidence of P.W.1 and the attestors therein; that the lower appellate court has also failed to properly appreciate the fact that the first respondent had acknowledged his liability and requested re-presentation of the cheques for encashment under Ex.P10-letter issued in his letter head and signed on the revenue stamp affixed therein and also an admission made in Ex.P11 to the effect that they had cheated the appellant; that the court below committed an error in discarding such valuable evidence and arriving at a conclusion that all those documents were fabricated when there is no oral or documentary evidence adduced on the side of the accused/respondents herein and that viewed from any angle, the judgment of the lower appellate court deserves to be set aside as it is defective and infirm.
11. Per contra, it is the contention of the learned counsel for the respondents that the court below, on a proper appreciation of evidence, came to a correct conclusion that the charge made against the accused were not proved beyond reasonable doubt and that therefore there is no scope for interference with the judgment of acquittal pronounced by the lower appellate court. It is the further contention of the learned counsel for the respondents that either it be the judgment of the trial court or it be the judgment of the lower appellate court, when the result is acquittal, the general presumption that the accused is innocent, is doubly strengthened and that unless strong reasons are found, no interference should be made by the appellate court or the second appellate court, as the case may be and that when two views are possible based on the evidence adduced in a particular case, simply because the appellate court comes to the conclusion that the other view is also possible, the judgment of acquittal should not be interfered with.
12. This court made it anxious considerations to the submissions made by the learned counsel appearing on either side. The judgments of the court below and the material records were all perused.
13. It is not the contention of the appellant/complainant that he lent the amount on the assurance of the respondents to give security in the form of agreements for sale of immovable properties and machineries. It is also not the case of the appellant that he would not have lent the amount, if the respondents had not chosen to execute the agreements for sale. As per the appellant's case, as found in Ex.P1 - agreement for sale, a total sum of Rs.5,00,000/- allegedly paid on five different dates (27.07.1993, 17.12.1993, 01.06.1994, 27.06.1994 and 01.11.1994) was the consideration for Ex.P1-agreement for sale. Ex.P1-agreement is dated 27.12.1994. The first payment was made more than one year prior to the date of agreement and the last payment was made approximately two months prior to the date of Ex.P1-agreement. Therefore, it can't be said that the appellant was made to part with the said amount on the false representation that the property covered by the agreement for sale was available with the second respondent to be given as security. It is not the case of the appellant that he refrained from doing anything pursuant to the commitment made by the respondents under Ex.P1. Similarly Ex.P2 has been produced as the agreement allegedly executed on 31.12.1994 by the first and third respondents in favour of the appellant. The said agreement reads as if the first and third respondents agreed to sell their export garment companies by name "O.Range Incorporation" and "O.R.Tee Garment" to the appellant for a sum of Rs.6,11,000/- including all machineries, finished and unfinished goods at No.30, Thambu Street, Chennai-1. However, the appellant, while deposing as P.W.1, would state that Ex.P2 agreement was executed agreeing to sell all the machineries that were available in O.R.Tee Garments belonging to third respondent. But the agreement has been couched in such terms as if the garment companies, by name "O.Range Incorporation" at No.30, Thambu Street, Chennai-1 and "O.R.Tee Garments" at No.18, Angappan Street, Chennai-1 were agreed to be sold along with the machineries found therein as well as the finished and unfinished goods. There is such a material contradiction between the contents of Ex.P2 and the evidence of P.W.1. This contradiction probalises the case of the respondents that the signatures of the respondents were obtained in blank stamp papers, blank letter heads and blank papers and the same were later on used for creating documents, as if sale agreements were executed as collateral security for the repayment of the loan advanced.
14. Though the appellant has stated that in seven installments he paid a total sum of Rs.11,11,000/- to the first respondent as loan, the details of the dates and the amounts paid on each date were not furnished in the complaint or in the protest petition. P.W.1 in his chief examination has given the following particulars regarding dates of payment and the amount paid by him to the first respondent.
1) 27.09.1993
i) By cheque Rs.60,000/-
ii) By cash Rs.40,000/-
2) 17.12.1993 By cheque Rs.54,000/-
3) 01.06.1994
i) By DD Rs.24,000/-
ii)By cash Rs.76,000/-
4. 27.06.1994
i) By DD Rs.40,000/-
ii) By cheque Rs.74,000/-
iii) By cash Rs.86,000/-
15. Out of the above said amount a sum of Rs.5,00,000/- covered by the alleged first five payments is shown to be the consideration for Ex.P1, the agreement for sale of the immovable property at Door No.91/1, Thoppai Mudali Street, Royapuram, Chennai-13 (R.S.No.905 and Collector certificate Number 337). For the balance Rs.6,11,000/- paid in 6th and 7th installments, Ex.P2-agreement is said to have been executed by the first and third respondents. It is the definite case of P.W.1 that the entire amount of Rs.11,11,000/- was paid to the first respondent as loan. No where in the complaint, protest petition or in the evidence, the appellant has stated that Rs.5,00,000/- was paid to the second respondent. On the other hand, it is the evidence of P.W.1 that the first respondent alone gave 11 cheques covering the entire Rs.11,11,000/-. Those cheques when presented for encashment were dishonoured, according to the evidence of P.W.1. The dishonour slips have not been produced. Out of the seven cheques, four cheques have been dishonoured as the drawer of the cheques had issued "stop payment" instructions. The other three cheques were not honoured, but the reasons for the same are not found. Be that as it may, the case of the appellant is that the entire amount of Rs.11,11,000/- was paid as loan to the first respondent alone. It is not his case that out of the above said amount, Rs.5,00,000/- was received by the second respondent. That is why the appellant has chosen to get 7 cheqeus from the first respondent alone covering the entire amount of Rs.11,11,000/-. But a comparison of Ex.P1 and Ex.P2 agreements will show contradiction with the above said stand of the appellant, capable of probablising the defence plea of the respondents.
16. Ex.P1 is couched in such terms as if Rs.5,00,000/- was received by all the three respondents on five different dates. In page 2 of Ex.P1, it has been stated as follows:
"The 1st and 3rd of us are having 'O' Range Incorporation and OR Tee Garments Companies of exporting of garments at Madras was conducted as partnership firm, wanted to release the co-partner and the third of us wanted to improve her company by getting loan. So, the 2nd of us necessitated to sell her property to the purchaser for a sum of Rs.5 Lakhs. So, we compelled the purchaser to pay the entire consideration of selling price and thereby we jointly and severally received the said amount agreeing the 2nd of us to sell the schedule mentioned property for Rs.5 lakhs, and thereby the 2nd of us agreed to execute the Sale Deed of the property within one year of the execution of this Deed at the cost of the 2nd of us."
On the other hand, in Ex.P2 - agreement, it has been stated that the first and second respondents agreed to sell their companies for a sum of Rs.6,11,000/- received by them for decoration and improvement of their companies. It has also been stated therein that for the amount received by the second respondent she had separately executed a sale agreement, thereby referring to Ex.P1. Though the second agreement, namely Ex.P2 has been prepared as if an agreement for sale, it has been stated therein that the first and third respondents would pay back Rs.6,11,000/- with 24% interest per annum within six months to save their companies from being sold to the appellant. Therefore, it is quite obvious and in fact the contention of the appellant happened to be that the documents Ex.P1 and P2 were not intended to be real agreements for sale, but were created as collateral security for the repayment of the amount allegedly lent by the appellant.
17. On the other hand, it is the consistent plea of the respondents that the first respondent alone borrowed a sum of Rs.1,45,000/- from the appellant; that for the said loan the appellant had obtained signatures of the respondents in blank cheques, blank stamp papers, blank papers and letter heads affixed with Revenue stamp; that even after the discharge of the said loan by the first respondent, the appellant failed to return those papers and that with the help of those signatures obtained in blank cheques, blank stamp papers, blank papers and blank letter heads affixed with Revenue stamps, the appellant has fabricated many documents and proceeded against the respondents, as if they had committed the offence of cheating.
18. Apart from the appellant, who deposed as P.W.1, two more witnesses were examined on the side of the appellant as P.W.2 and P.W.4 for proving the lending of a sum of Rs.11,11,000/- by the appellant and execution of Ex.P1 and P2 agreements. They have also been examined to show that the cheques marked as Ex.P3 to P9 and the other documents, namely Ex.P10 to P12 were executed by the first respondent. P.W.2 and P.W.4 happened to be the neighbours and friends of the appellant. It is quite surprising to hear from them that on all seven occasions when the appellant allegedly lent money to the first respondent, both of them were present as witnesses. In fact P.W.2 alone has singed as a witness in Ex.P1. P.W.4 has not signed as a witness in Ex.P1. The very same witness who signed as attestors of Ex.P1 happened to be the attestors of Ex.P2 also. They are Gopalakrishnan and Chandrasekaran(P.W.2). But P.W.4-Balasubramanian would state that he was present on both the occasions, namely when Ex.P1 and P2 were executed in favour of the appellant, even though he was not one of the attestors of Ex.P1 and P2. However, he has signed as a third witness in Ex.P10, namely a letter allegedly given by the first respondent on 28.03.1995 admitting the execution of Ex.P1 and P2 and also requesting the appellant to re-present the cheques assuring to keep sufficient funds for the honouring. Another letter in the letter head signed on the Revenue stamp affixed on it allegedly issued by the first respondent on 10.04.1994 has been produced as Ex.P11. In this letter also P.W.4 has signed as third witness. It is pertinent to note that in all the above said documents, namely Ex.P1, P2, P10 and P11, P.W.2-Chandrasekaran happened to be the person who signed as one of the witnesses. Similarly, four more letters allegedly written by P.W.1 in blank papers and in letter heads have been marked as Ex.P12 series. A Consideration of all those documents and the evidence of P.Ws.1, 2 and 4 will show the improbabilities of the prosecution version. In fact a letter found in Ex.P12 series dated 05.02.1995 contains a recital to the effect that the amounts payable by 27.04.1995 would be paid and cleared by 15.05.1995. When such an undertaking letter was issued on 05.02.1995, what was the necessity for getting a letter under Ex.P10 on 28.03.1995 and a letter under Ex.P11 on 10.04.1995, that too, using the letter head and affixing Revenue stamps for getting the signatures of the first respondent? No explanation has been offered. Above all, cheques were returned on the instructions of the first respondent to stop payment.
20. Furthermore, the stamp papers for Ex.P1 were purchased on 16.12.1993. The date of Ex.P1 was typed as 27th day of December 1993 and the year column was later on corrected as 1994. Date is not found below the signature of any of the parties or the witnesses. We can assume that a mistake was committed when typing the said document Ex.P1 and hence it required correction, if such a mistake is not found anywhere else. Ex.P2 is said to have been executed on 31.12.1994. In the said document, Ex.P1 was also referred to. While referring to Ex.P1 in Ex.P2, the date of Ex.P1 had been typed as 27.12.1993 and then corrected as 27.12.1994. The said correction itself will probablise the case of the respondents that signatures had been obtained in blank stamp papers and the same were used for creating the above said documents. In Ex.P2 date has been typed as ___ (Not legible) September, 1994. But it was then corrected to 31.12.1994. It should also be noticed that the stamp papers for Ex.P2 were purchased on 27.08.1993. But the document was said to be executed on 31.12.1994. Furthermore, the stamp papers used for Ex.P1 had been purchased on 16.12.1993 whereas the stamp papers used for Ex.P2 were purchased on 27.08.1993, even prior to the date on which the stamp papers used for Ex.P1 were purchased. It so happened that stamp papers purchased earlier in point of time have been used for the preparing the document later in point of time, whereas the stamp papers purchased later in point of time have been used for preparing the document earlier in point of time. All these aspects will improbablise the case of the appellant and probablise the case of the respondents. The above said discrepancies will, at least, create a reasonable doubt regarding the case of the appellant/complainant.
21. Yet another aspect is worth mentioning. It is a fact that the second respondent happened to be the owner of the property at No.99, Thoppai Mudali Street, Royapuram, Chennai-13 at one point of time. But it is obvious from the evidence adduced in this case and especially the copy of the sale deed dated 23.10.1991 marked as Ex.P14, that the second respondent had purchased the property on 23.10.1991. She had sold it on 28.03.1994 to one Hannah Beulah Porselvi. The said sale deed had been executed on 28.03.1994 itself, whereas Ex.P1 is dated 27.12.1994. That itself will show that the said agreement could have been created with the help of the signatures obtained in blank stamp papers and blank papes.
22. The very fact that there is admission on the part of the appellant that he obtained sale agreements as collateral security for the repayment of the loan, besides getting cheques for the amount, will go to show that he was over jealous in getting more securities for the loan and such an admission will also probablise the case of the respondents that Ex.P1 and P2 agreements, Ex.P3 to P9 cheques and the letters Ex.P10 and P11 should have been created with the help of signatures obtained in blank stamp papers, blank cheques, blank letter heads affixed with stamps and blank papers.
23. Yet another admission made by P.W.1 will also improbablise the case of the appellant and probablise the case of the respondents. It is pertinent to note that though the appellant has got a claim for such a huge amount he was content with preferring a complaint without filing a suit for recovery of the said amount. He has also admitted that the agreements for sale were not intended to be agreements for sale but were given as collateral securities. Though the appellant has stated that on seven occasions he paid a total sum of Rs.11,11,000/-, the particulars he furnished are not convincing. In Ex.P1, a sum of Rs.50,000/- paid on 17.12.1993 alone has been stated to have been paid by cheque. Another sum of Rs.50,000/- allegedly paid on 01.11.1994 was said to be paid in cash and the payments made on three other dates, namely 27.09.1993, 01.06.1994 and 27.06.1994 are said to be made in cash as well as by cheques. How much was paid in cash and how much was paid by cheque has not been elaborated. Similarly, in Ex.P2, the particulars of payment have not been furnished. In the notice also particulars as to how much was paid as cash and how much was paid by way of cheque have not been furnished. Only while deposing as P.W.1 the appellant chose to give such particulars. But it is highly improbable that the appellant might have paid huge amounts of cash on the dates on which amounts were also paid by cheques. So far as the amounts paid by cheques or DDs are concerned, the appellant could be expected to omit to get a receipt as the payment would be evidenced by documents. On the other hand, for cash payments any prudent man would not omit to get receipts or acknowledgments at the time of making payment. Several lakhs of rupees are said to be paid to the first respondent without even getting receipts or acknowledgments in writing. The documents Ex.P1 and P2 came into existence only several months after the payments were made. Cheques were also obtained after several months from the date of alleged payments.
24. All these aspects will probablise the defence theory of the respondents or at least create a reasonable suspicion regarding the story of the appellant/complainant. The trial court seems to have overlooked all these discrepancies and was carried away by the assumed contradiction in the stand taken by the first appellant. Anything short of admission found in the statement of the accused given during the examination of the accused under
section 313 Cr.P.C cannot be relied on by the court to convict the accused. The examination of the accused under
section 313 Cr.P.C is meant for affording an opportunity to the accused to explain the incriminating materials found in the evidence adduced against him by the prosecution. In this case, the trial court has commented upon the statement of the accused under
section 313 Cr.P.C and also the written statement to come to the conclusion that the defence theory could not be probable. Based on such erroneous approach alone, the trial court seems to have arrived at a conclusion that the charges against accused were proved beyond reasonable doubt.
On the other hand, the learned lower appellate judge, on a proper re-appreciation of evidence, came to a correct conclusion that the appellant/complainant failed to prove the charge against the respondents/accused beyond reasonable doubt; that the approach made by the trial court was defective and infirm and that the respondents herein/accused were entitled to be acquitted as the charges against them were not proved beyond reasonable doubt. This court also, after going through the entire materials, comes to the conclusion that the judgment of the lower appellate court is neither infirm nor defective and that there is no scope for interference with the same in this appeal.
26. For all the reasons stated above, this court comes to the conclusion that there is no merit in the appeal and the same deserves to be dismissed. Accordingly, this appeal is dismissed.
asr/ To The Additional District and Sessions Judge (Fast Track Court No.1), Chennai