Can’t spot accused in a crowded court? Kerala High Court upholds guilt despite complainant’s failure to identify accused

“The mere fact that the complainant was not able to identify the petitioner/accused, who was admittedly standing at the rear side of the court hall, cannot be a reason to conclude that the case of the complainant about the execution and issuance cheque by the accused has not been proved,” the court observed on January 29.

The order added that it is to be noted that the crowded court halls are the regular features of magistrates’ courts in Kerala, and there is no difficulty for a person standing on the rear side of the court hall to hide his visibility from the view of a witness standing in the witness box.

Findings

• There is absolutely no case for the complainant that he was acquainted with the petitioner for ever so many years.
• The complainant, in his testimony, categorically stated during cross-examination that he had no occasion to see the petitioner after the case.
• The absence of memory power of the complainant to identify the petitioner in the year 2013 in the court hall, after the lapse of about four years from the date of issuance of the cheque, cannot be taken as a reason to disbelieve the version of the complainant about the execution and issuance of the cheque in the year 2009.
• It is also very important to note that the complainant was asked to watch and identify the persons in the court hall at a time when the petitioner was standing on the rear side of the court hall.
• It is not possible to discern from the testimony of the complainant and the proceedings of the trial court that the complainant was permitted to come near each person who was there in the court hall and to identify the accused.
• The complainant had to watch the persons present in the court hall from the witness box and say whether the accused was present anywhere there.
• It is also revealed that the moment when the complainant stated that the accused was not there, the accused was called by his name, and he came from the rear side of the court hall, which is said to be a place within the visibility of the complainant.
• The identification test, which was carried out at the instance of the accused during the course of examination of the complainant, is of no consequence as far as the facts and circumstances of this case are concerned.
• The complainant has successfully brought out all the other requirements about the commission of the offence under Section 138 (dishonour of cheque for insufficiency, etc., of funds in the account) of the Negotiable Instruments Act by the petitioner.
• The trial court has rightly modified the sentence by reducing the tenure of imprisonment to imprisonment till the rising of the court, and it is reasonable and proportionate to the gravity of the offence.

Background

• The case originated from a 2009 transaction in which the petitioner allegedly received Rs 1.50 lakh from the complainant with the promise of arranging a foreign employment visa.
• When the visa failed to materialise, the petitioner issued a cheque, which was subsequently bounced due to insufficiency of funds when it was presented for collection.
• Since the petitioner did not make payment of the cheque amount despite the receipt of a statutory notice, the complainant had instituted the complaint before the magistrate’s trial court.
• The magistrate’s court convicted the petitioner in 2013 under Section 138 of the Negotiable Instruments Act, sentencing him to three months of imprisonment and a fine.
• Later, in 2018, the session court reduced the sentence to imprisonment till the rising of the court, and maintained the fine of Rs 1.50 lakh.
• The petitioner filed the plea bofore high court, and the only challenge he raised against the verdicts of the trial courts is that the failure on the part to appreciate the situation showing the inability of the complainant to identify the petitioner, who had allegedly issued a cheque to him, is a fatal irregularity which requires interference in revision.