T. Abraham vs D.S. Menon

M.N. Krishnan, J.—This appeal is preferred against the order of acquittal in C.C.628/98 of the Judicial First Class Magistrate-III, Kottayam. The brief facts necessary for the disposal of the appeal are stated as follows. It is the case of the complainant that the accused had borrowed a sum of Rs. 35,000/- and towards he discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement insufficiency of funds. Statutory notice was issued and prosecution was launched.

On the contra, the accused would contend that he has not borrowed any amount from the complainant, that the accused, complainant and one Saji K.Thomas had purchased a bus from one M.S. Mohankumar and subsequently there was an agreement entered into between the three whereby the accused was given the vehicle for which an amount of Rs. 35,000/- was outstanding and so furnished a security by a cheque for Rs. 35,000/-. There was also a recital in the agreement that if the amount due to the financier exceeds what is stated in the document then there is no liability and the cheque cannot be placed for encashment. Really there was an amount of Rs. 2,35,000/- outstanding to the financier and so the cheque could not have been presented and so action is bad. The trial court appreciated these materials and acquitted the accused. It is against that decision the appellant has come up with this appeal.

The point that arises for determination is whether there are any grounds to interfere with the decision rendered by the Court below. Points:

The learned Counsel for the appellant very strongly contends before me that the complainant had never admitted the execution of Ext.B2 document and further he had moved an application for sending the document for comparison by an expert which had been wrongly rejected by the Court below and that had resulted in the miscarriage of justice. He would contend the materials are sufficient to indicate that the complainant is entitled to proceed with the prosecution.

I had heard the learned Counsel in detail and had also perused the documents as well as the evidence tendered in this case. The complaint does not divulge about any bus transaction but only deals with a money transaction of Rs. 35,000/-. Exts.D1 to D5 are the documents produced by the accused in support of his case. Ext.D1 is an agreement entered into between one M.S.Mohankumar and the accused D.S.Menon, P.T. Abraham and Saji K. Thomas. By the said agreement the bus belonging to M.S.Mohankumar was sold for a consideration of Rs. 5,25,000/- out of which Rs. 3,65,000/- was paid on that date and the remaining Rs. 1,60,000/- was reserved to be paid to the financiers. The vehicle was handed over possession as well. The existence of such an agreement is not disputed by the complainant.

Ext.D2 is an agreement entered into between the complainant, accused, P.T. Abraham and Saji K. Thomas. It refers to an earlier agreement and by that agreement P.T. Abraham and Saji K. Thomas decided to sell the vehicle to the accused. The consideration was fixed as Rs. 1,35,000/- for the two sellers out of which Rs. 1,00,000/- was paid and Rs. 35,000/- was reserved and there are recitals to the effect that a cheque is issued in favour of the complainant as security and further in any event the amount to the financier exceeds what is stipulated, the cheque shall not be presented. So if the existence of Ext.D2 is proved then the complainant would not be in a position to proceed with the case. Ext.D3 is the document whereby the registration certificate stands in the name of the accused. Exts.D4 and D5 are relating to another complaint and it is withdrawn. So the crucial question to be determined in this case is regarding the fact whether the complainant had joined Ext.D2 agreement and if it is proved then the complainant will not be in a position to challenge the correctness of the recitals in the agreement. As PW1, he had totally denied the existence of such an agreement. DW1 and DW3 are the two witnesses to Ext.D2 agreement. DW1 is the scribe as well. He had deposed before Court that D2 agreement was written from the office of them and he had written the agreement and that he had seen the accused and the other witnesses signing the document and viceverca. He had been cross-examined and nothing is brought out to discard the evidence or to show that he is uttering falsehood before the Court to support the accused.

PW3 is another witness. He had also deposed before Court that he had signed as a witness and further he had seen the witnesses and the executants signing the document each other. His evidence also is not shattered in the cross-examination. DW2 is Saji K. Thomas who was also a joined owner of the bus by virtue of Ext.D1 agreement. He had deposed before Court in clear terms that Ext.D2 was executed in his presence and he had seen all the persons therein including the witnesses signing the document and all of them had seen each other this particular act. He had also spoken about the financial transaction with the financiers and thus had proved Ext.D2. His cross examination also did not yield any negative result so as to discredit the same. DW4 is the accused. He had also spoken about the whole transaction and what had transpired. The Court below, when an application for examining the document by expert was filed, considered the materials and held that it is not necessary to do so. u/s 73 of the Evidence Act there is a power with the Court to send the document for examination by an expert. It is also to be stated that a report of an expert only assumes the character of an opinion evidence. When a Court of law is satisfied that the evidence available before it is sufficient to decide the question of the execution of the document, it is not necessary for that Court to send the document for comparison by the expert just because a party wants to do it. The purport of such sending of document for comparison by the expert is to remove any suspicion that may arise in the mind of the Court and it is not mandatory that every document should be send for expert opinion when the Court does not have such a doubt. I had gone through the evidence of DWs.1 to 4 and the attending circumstances. The evidence tendered by the witnesses to Ext.D2 and the executants namely DW1 and DW4 are convincing and clinching to establish that the document had been executed by the complainant as well. Unless the said document had been executed the accused could not have become the owner of the vehicle by himself and the certificate of registration would not have been changed in his name. The pretension of the complainant is understandable for the reason that if he admits Ext.D2 there cannot be any prosecution. When it is not so the terms and conditions of Ext.D2 stares at the face of the complainant. It is contended that the amount due to the financier was Rs. 2,35,000/- and not Rs. 1,60,000/- and when it is so as per the terms of the agreement the cheque which is issued as a security could not be presented for encashment. Therefore when Ext.D2 is proved the complainant is precluded from initiating the prosecution. This is what precisely the trial court has held and I do not find any ground to interfere with the said decision. Therefore the appeal fails and the same is dismissed.