S.Abdul Wahab v. Thajudeen

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.06.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1205 of 2002S.Abdul Wahab...Appellant/ComplainantVs.1. Thajudeen2. Shakirunnissa @ Shakira Begum3. Asan Fathima...Respondents/AccusedThis Criminal Appeal has been filed under Section 378(4) ofCriminal Procedure Code against the Order of acquittal dated17.05.2002 made in Appeal No.253(A) of 1998 by the learnedAdditional District and Sessions Judge (Fast Track Court No.1),Chennai.For Appellant: Mr.S.V.RamamurthyFor Respondents: M/s.T.K.Sampath Asssociates (R3)J U D G M E N TThis Criminal Appeal has been preferred on special leaveunder Section 378(4) of Criminal Procedure Code against thejudgment of the lower appellate court, namely the AdditionalDistrict and Sessions Judge (Fast Track Court No.1), Chennai dated17.05.2002 made in Criminal Appeal No.253(A) of 1998. 2. A case was instituted on the file of the Additional ChiefMetropolitan Magistrate, Egmore, Chennai-8 as C.C.No.3024/1996based on a private complaint for an alleged offence punishableunder Section 420 r/w 34 IPC against the respondents 1 to 3herein. In the said case, after trial, the learned AdditionalChief Metropolitan Magistrate, Egmore, Chennai, pronounced ajudgment on 14.12.1998 holding the first respondent herein guiltyof an offence punishable under Section 420 IPC, second respondentherein guilty of an offence punishable under Section 420 r/w 109IPC and the third respondent herein guilty of an offencepunishable under Section 420 r/w 34 IPC, convicted them for theabove said offences respectively and imposed the followingpunishments on them:-i)The first respondent/first accused was sentenced to undergo https://hcservices.ecourts.gov.in/hcservices/ six months rigorous imprisonment;ii)The second respondent/second accused was sentenced toundergo three months rigorous imprisonment; andiii)The third respondent/third accused was sentenced toundergo three months rigorous imprisonment.(No fine was imposed on any one of the respondents herein.)3. Challenging the judgment of conviction and order ofsentence passed by the trial court (Additional Chief MetropolitanMagistrate, Egmore, Chennai), the respondents herein (accused 1 to3) preferred an appeal on the file of the Sessions Court, Chennaiwhich was taken on file as Crl.A.No.253(A) of 1998 and was madeover to the Additional District and Sessions Judge (Fast TrackCourt No.1), Chennai. The lower appellate court, namelyAdditional District and Sessions Judge (Fast Track Court No.1),Chennai, after hearing the appeal, by his judgment dated17.05.2002 reversed the judgment of the trial court convicting therespondents herein and acquitted all of them of the respectivecharges for which they were tried. Now, challenging the saidjudgment of the lower appellate court, the present appeal has beenfiled under Section 378(4) Cr.P.C. by the appellant/complainant.4. The facts leading to the filing of the present appeal, canbe summarised as follows:The appellant herein had preferred a complaint on the file ofCentral Crime Branch, Chennai against the respondents hereinalleging commission of an offence punishable under Section 420 IPCr/w Section 34 IPC. The same was registered as Cr.No.627/1995 onthe file of the said police. However, after investigation thecase was referred as mistake of fact. Thereafter, the appellantherein filed a protest petition praying that his complaint shouldbe taken as a private complaint and the respondents herein/accused1 to 3 should be prosecuted. After following the procedureprescribed for taking cognizance of an offence on privatecomplaint, the learned Additional Chief Metropolitan Magistratetook the complaint of the appellant on file as C.C.No.3024 of 1996and issued process against the respondents herein. On appearanceof the accused (respondents herein), necessary charge was framedagainst the accused persons (respondents herein) for an offencepunishable under Section 420 r/w Section 34 IPC. The charge wasframed against the respondents herein and they were made to facethe trial based on the following allegations of the appellantherein/complainant:- The respondents/accused were running an export garmentcompany. The appellant/complainant was a sub-contractor under therespondents herein for making export garments. As such, forexpanding his business and for relieving the other partners fromthe business, the first respondent borrowed a total sum ofRs.11,11,000/- from the appellant/complainant. For the duerepayment of the said amount, the second respondent, who is the https://hcservices.ecourts.gov.in/hcservices/ wife of the first respondent, executed an agreement for sale inrespect of a house site at Royapuram belonging to her for a sum ofRs.5,00,000/-. For the balance amount of Rs.6,11,000/-, the thirdrespondent, the sister of the first respondent, executed anagreement for sale in respect of her export garments factory alongwith the machineries kept therein. The first respondent hadissued seven cheques for the amount borrowed from theappellant/complainant. When the cheques were presented forencashment, the same were dishonoured as there was insufficiencyof fund. When the same was informed to the first respondent hegave a letter admitting his liability and requesting the appellantto present the cheques again for encashment promising that hewould make arrangements for honouring the cheques. The cheques,when presented for the second time for encashment, weredishonoured once again. Thereafter entertaining suspicionregarding the securities, the appellant verified the propertiesoffered as securities regarding which agreements for sale had beenexecuted in favour of the appellant. On such verification, to hisshock and surprise, he came to know that all the machineries inexport garments factory had been removed and that the house siteregarding which the second respondent had executed the agreementfor sale in favour of the appellant, had been sold to a thirdparty by the second respondent six months prior to the agreement.Thus the appellant/complainant came to know that he was cheated byall the three accused (respondents herein).5. The gist of the complaint was that all the three accusedcheated the appellant by executing the sale agreement in respectof a property which was already sold to a third party and byexecuting a sale agreement in respect of the garments factoryincluding its machineries whereas all the machineries had beenremoved from the said factory. The trial court chose to frame acharge against all the three accused for an offence punishableunder Section 420 IPC r/w Section 34 IPC. The respondents herein(accused) denied the charge and pleaded not guilty. In the lightof such plea, the trial court conducted trial in which fourwitnesses, including the appellant herein, were examined as P.W.1to P.W.4 and 17 documents were marked as Ex.P1 to Ex.P17 on theside of the appellant herein/complainant in order to prove thecharge against the respondents herein/accused. When the accusedwere questioned under Section 313(i)(b) Cr.P.C regarding theincriminating materials, they denied them stating that they werefalsely implicated and reiterated that they were not guilty. Nowitness was examined and no document was marked on the side of therespondents herein/accused. 6. The learned trial judge, considered the evidence broughtbefore him in the light of the arguments advanced on either sideand upon such consideration, came to the conclusion that the firstaccused (first respondent) was guilty of an offence punishableunder Section 420 IPC, second accused(second respondent) wasguilty of an offence punishable under Section 420 r/w 109 IPC and https://hcservices.ecourts.gov.in/hcservices/ third accused (third respondent) was guilty of an offencepunishable under Section 420 r/w 34 IPC. Based on the saidfinding, the trial court convicted them and imposed punishments asindicated supra.7. Challenging the said judgment of conviction of the trialcourt and the order of punishment, the accused 1 to 3 (respondentsherein) preferred an appeal on the file of the lower appellatecourt under Section 374 Cr.P.C. The lower appellate court, afterhearing both sides, by a detailed judgment giving his reasonsallowed the appeal, set aside the conviction and acquitted all theaccused of the offences for which they stood charged. Now, it isthe turn of the complainant/appellant herein, to challenge thejudgment of the lower appellate court under Section 378(4) afterobtaining the leave of the court to appeal against the judgment ofacquittal pronounced by the lower appellate court. This court hasgranted leave to the complainant/appellant herein by an orderdated 12.08.2002 made in Crl.O.P.No.19320/2002 and thus thepresent appeal petition happened to be taken on file as CriminalAppeal 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 thejudgment of conviction pronounced by the trial court andacquitting all the accused (respondents herein) suffers from anydefect or infirmity warranting interference by this court inexercise of its appellate power?"9. Mr.V.S.Ramamurthy, learned counsel advancing arguments onbehalf of the appellant, contended that the well consideredjudgment of the trial court should not have been reversed by thelower appellate court; that the lower appellate court committed anerror in coming to the conclusion that the appellantherein/complainant had not proved the charges made against therespondents herein/accused beyond reasonable doubt; that the lowerappellate court failed to properly appreciate the fact that thefirst respondent had borrowed a total sum of Rs.11,11,000/- forwhich the second and third respondents had executed agreements inrespect of an immovable property at No.99, Thoppai Mudali Street,Royapuram, Chennai-13 and the machineries used in the garmentsfactory of the third respondent as collateral securities forRs.5,00,000/- and Rs.6,11,000/- respectively; that the saidproperties offered as security by way of executing saleagreements, were not in fact owned by the second and thirdrespondents at the time of execution of the sale agreements; thatby offering properties which were not theirs as security, they hadcommitted the offence of cheating; that all the three accusedacted with a common intention of cheating theappellant/complainant in making him advance a sum ofRs.11,11,000/-, after getting such collateral security in the formof agreements for sale and that the said aspect was not properlyconsidered by the lower appellate court. https://hcservices.ecourts.gov.in/hcservices/

10. It is the further contention of the learned counsel forthe appellant that the overwhelming evidence, both oral anddocumentary, adduced on the side of the appellant/complainant, wassimply brushed aside by the lower appellate court as improbableand unbelievable; that the lower appellate court has cited so-called contradictions which are either no contradictions at all ortrivial in nature, as the points in support of the conclusionarrived at by the lower appellate court; that the lower appellatecourt failed to consider the fact that the agreements for saleexecuted by the second and third respondents were proved not onlyby the production of the said agreements but also by the paroleevidence of P.W.1 and the attestors therein; that the lowerappellate court has also failed to properly appreciate the factthat the first respondent had acknowledged his liability andrequested re-presentation of the cheques for encashment underEx.P10-letter issued in his letter head and signed on the revenuestamp affixed therein and also an admission made in Ex.P11 to theeffect that they had cheated the appellant; that the court belowcommitted an error in discarding such valuable evidence andarriving at a conclusion that all those documents were fabricatedwhen there is no oral or documentary evidence adduced on the sideof the accused/respondents herein and that viewed from any angle,the judgment of the lower appellate court deserves to be set asideas it is defective and infirm.11. Per contra, it is the contention of the learned counselfor the respondents that the court below, on a proper appreciationof evidence, came to a correct conclusion that the charge madeagainst the accused were not proved beyond reasonable doubt andthat therefore there is no scope for interference with thejudgment of acquittal pronounced by the lower appellate court. Itis the further contention of the learned counsel for therespondents that either it be the judgment of the trial court orit be the judgment of the lower appellate court, when the resultis acquittal, the general presumption that the accused isinnocent, is doubly strengthened and that unless strong reasonsare found, no interference should be made by the appellate courtor the second appellate court, as the case may be and that whentwo views are possible based on the evidence adduced in aparticular case, simply because the appellate court comes to theconclusion that the other view is also possible, the judgment ofacquittal should not be interfered with. 12. This court made it anxious considerations to thesubmissions made by the learned counsel appearing on either side.The judgments of the court below and the material records were allperused.13. It is not the contention of the appellant/complainantthat he lent the amount on the assurance of the respondents togive security in the form of agreements for sale of immovable https://hcservices.ecourts.gov.in/hcservices/ properties and machineries. It is also not the case of theappellant that he would not have lent the amount, if therespondents had not chosen to execute the agreements for sale. Asper the appellant's case, as found in Ex.P1 - agreement for sale,a total sum of Rs.5,00,000/- allegedly paid on five differentdates (27.07.1993, 17.12.1993, 01.06.1994, 27.06.1994 and01.11.1994) was the consideration for Ex.P1-agreement for sale.Ex.P1-agreement is dated 27.12.1994. The first payment was mademore than one year prior to the date of agreement and the lastpayment was made approximately two months prior to the date ofEx.P1-agreement. Therefore, it can't be said that the appellantwas made to part with the said amount on the false representationthat the property covered by the agreement for sale was availablewith the second respondent to be given as security. It is not thecase of the appellant that he refrained from doing anythingpursuant to the commitment made by the respondents under Ex.P1.Similarly Ex.P2 has been produced as the agreement allegedlyexecuted on 31.12.1994 by the first and third respondents infavour of the appellant. The said agreement reads as if the firstand third respondents agreed to sell their export garmentcompanies by name "O.Range Incorporation" and "O.R.Tee Garment" tothe appellant for a sum of Rs.6,11,000/- including allmachineries, finished and unfinished goods at No.30, ThambuStreet, Chennai-1. However, the appellant, while deposing asP.W.1, would state that Ex.P2 agreement was executed agreeing tosell all the machineries that were available in O.R.Tee Garmentsbelonging to third respondent. But the agreement has been couchedin such terms as if the garment companies, by name "O.RangeIncorporation" at No.30, Thambu Street, Chennai-1 and "O.R.TeeGarments" at No.18, Angappan Street, Chennai-1 were agreed to besold along with the machineries found therein as well as thefinished and unfinished goods. There is such a materialcontradiction between the contents of Ex.P2 and the evidence ofP.W.1. This contradiction probalises the case of the respondentsthat the signatures of the respondents were obtained in blankstamp papers, blank letter heads and blank papers and the samewere later on used for creating documents, as if sale agreementswere executed as collateral security for the repayment of the loanadvanced. 14. Though the appellant has stated that in seveninstallments he paid a total sum of Rs.11,11,000/- to the firstrespondent as loan, the details of the dates and the amounts paidon each date were not furnished in the complaint or in the protestpetition. P.W.1 in his chief examination has given the followingparticulars regarding dates of payment and the amount paid by himto the first respondent. https://hcservices.ecourts.gov.in/hcservices/ 1)27.09.1993 i) By chequeRs.60,000/- ii) By cashRs.40,000/-2)17.12.1993 By chequeRs.54,000/-3)01.06.1994 i) By DDRs.24,000/- ii)By cashRs.76,000/-4. 27.06.1994 i) By DDRs.40,000/- ii) By chequeRs.74,000/- iii) By cashRs.86,000/-5.01.11.1994 By cashRs.50,000/-6.15.11.1994 By cashRs.5,00,000/-7.10.12.1994 By cashRs.1,11,000/- ---------------TOTAL Rs.11,11,000/- ---------------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 theconsideration for Ex.P1, the agreement for sale of the immovableproperty at Door No.91/1, Thoppai Mudali Street, Royapuram,Chennai-13 (R.S.No.905 and Collector certificate Number337).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 andthird respondents. It is the definite case of P.W.1 that theentire amount of Rs.11,11,000/- was paid to the first respondentas loan. No where in the complaint, protest petition or in theevidence, the appellant has stated that Rs.5,00,000/- was paid tothe second respondent. On the other hand, it is the evidence ofP.W.1 that the first respondent alone gave 11 cheques covering theentire Rs.11,11,000/-. Those cheques when presented forencashment were dishonoured, according to the evidence of P.W.1.The dishonour slips have not been produced. Out of the sevencheques, four cheques have been dishonoured as the drawer of thecheques had issued "stop payment" instructions. The other threecheques were not honoured, but the reasons for the same are notfound. Be that as it may, the case of the appellant is that theentire amount of Rs.11,11,000/- was paid as loan to the firstrespondent alone. It is not his case that out of the above said https://hcservices.ecourts.gov.in/hcservices/ amount, Rs.5,00,000/- was received by the second respondent. Thatis why the appellant has chosen to get 7 cheqeus from the firstrespondent alone covering the entire amount of Rs.11,11,000/-.But a comparison of Ex.P1 and Ex.P2 agreements will showcontradiction with the above said stand of the appellant, capableof probablising the defence plea of the respondents. 16. Ex.P1 is couched in such terms as if Rs.5,00,000/- wasreceived by all the three respondents on five different dates. Inpage 2 of Ex.P1, it has been stated as follows:"The 1st and 3rd of us are having 'O' RangeIncorporation and OR Tee Garments Companies of exportingof garments at Madras was conducted as partnership firm,wanted to release the co-partner and the third of uswanted to improve her company by getting loan. So, the2nd of us necessitated to sell her property to thepurchaser for a sum of Rs.5 Lakhs. So, we compelled thepurchaser to pay the entire consideration of sellingprice and thereby we jointly and severally received thesaid amount agreeing the 2nd of us to sell the schedulementioned property for Rs.5 lakhs, and thereby the 2nd ofus agreed to execute the Sale Deed of the property withinone year of the execution of this Deed at the cost of the2nd of us."On the other hand, in Ex.P2 - agreement, it has been statedthat the first and second respondents agreed to sell theircompanies for a sum of Rs.6,11,000/- received by them fordecoration and improvement of their companies. It has also beenstated therein that for the amount received by the secondrespondent she had separately executed a sale agreement, therebyreferring to Ex.P1. Though the second agreement, namely Ex.P2 hasbeen prepared as if an agreement for sale, it has been statedtherein that the first and third respondents would pay backRs.6,11,000/- with 24% interest per annum within six months tosave their companies from being sold to the appellant. Therefore,it is quite obvious and in fact the contention of the appellanthappened to be that the documents Ex.P1 and P2 were not intendedto be real agreements for sale, but were created as collateralsecurity for the repayment of the amount allegedly lent by theappellant.17. On the other hand, it is the consistent plea of therespondents that the first respondent alone borrowed a sum ofRs.1,45,000/- from the appellant; that for the said loan theappellant had obtained signatures of the respondents in blankcheques, blank stamp papers, blank papers and letter heads affixedwith Revenue stamp; that even after the discharge of the said loanby the first respondent, the appellant failed to return thosepapers and that with the help of those signatures obtained inblank cheques, blank stamp papers, blank papers and blank letter https://hcservices.ecourts.gov.in/hcservices/ heads affixed with Revenue stamps, the appellant has fabricatedmany documents and proceeded against the respondents, as if theyhad committed the offence of cheating. 18. Apart from the appellant, who deposed as P.W.1, two morewitnesses were examined on the side of the appellant as P.W.2 andP.W.4 for proving the lending of a sum of Rs.11,11,000/- by theappellant and execution of Ex.P1 and P2 agreements. They havealso been examined to show that the cheques marked as Ex.P3 to P9and the other documents, namely Ex.P10 to P12 were executed by thefirst respondent. P.W.2 and P.W.4 happened to be the neighboursand friends of the appellant. It is quite surprising to hear fromthem that on all seven occasions when the appellant allegedly lentmoney to the first respondent, both of them were present aswitnesses. 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 witnesswho signed as attestors of Ex.P1 happened to be the attestors ofEx.P2 also. They are Gopalakrishnan and Chandrasekaran(P.W.2).But P.W.4-Balasubramanian would state that he was present on boththe occasions, namely when Ex.P1 and P2 were executed in favour ofthe appellant, even though he was not one of the attestors ofEx.P1 and P2. However, he has signed as a third witness inEx.P10, namely a letter allegedly given by the first respondent on28.03.1995 admitting the execution of Ex.P1 and P2 and alsorequesting the appellant to re-present the cheques assuring tokeep sufficient funds for the honouring. Another letter in theletter head signed on the Revenue stamp affixed on it allegedlyissued by the first respondent on 10.04.1994 has been produced asEx.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 bethe person who signed as one of the witnesses. Similarly, fourmore letters allegedly written by P.W.1 in blank papers and inletter heads have been marked as Ex.P12 series. A Consideration ofall those documents and the evidence of P.Ws.1, 2 and 4 will showthe improbabilities of the prosecution version. In fact a letterfound in Ex.P12 series dated 05.02.1995 contains a recital to theeffect that the amounts payable by 27.04.1995 would be paid andcleared by 15.05.1995. When such an undertaking letter was issuedon 05.02.1995, what was the necessity for getting a letter underEx.P10 on 28.03.1995 and a letter under Ex.P11 on 10.04.1995, thattoo, using the letter head and affixing Revenue stamps for gettingthe signatures of the first respondent? No explanation has beenoffered. Above all, cheques were returned on the instructions ofthe first respondent to stop payment. 19. Furthermore, the stamp papers for Ex.P1 were purchased on16.12.1993. The date of Ex.P1 was typed as 27th day of December1993 and the year column was later on corrected as 1994. Date isnot found below the signature of any of the parties or thewitnesses. We can assume that a mistake was committed when typingthe said document Ex.P1 and hence it required correction, if such https://hcservices.ecourts.gov.in/hcservices/ a mistake is not found anywhere else. Ex.P2 is said to have beenexecuted on 31.12.1994. In the said document, Ex.P1 was alsoreferred to. While referring to Ex.P1 in Ex.P2, the date of Ex.P1had been typed as 27.12.1993 and then corrected as 27.12.1994.The said correction itself will probablise the case of therespondents that signatures had been obtained in blank stamppapers and the same were used for creating the above saiddocuments. In Ex.P2 date has been typed as ___ (Not legible)September, 1994. But it was then corrected to 31.12.1994. Itshould also be noticed that the stamp papers for Ex.P2 werepurchased on 27.08.1993. But the document was said to be executedon 31.12.1994. Furthermore, the stamp papers used for Ex.P1 hadbeen purchased on 16.12.1993 whereas the stamp papers used forEx.P2 were purchased on 27.08.1993, even prior to the date onwhich the stamp papers used for Ex.P1 were purchased. It sohappened that stamp papers purchased earlier in point of time havebeen used for the preparing the document later in point of time,whereas the stamp papers purchased later in point of time havebeen used for preparing the document earlier in point of time.All these aspects will improbablise the case of the appellant andprobablise the case of the respondents. The above saiddiscrepancies will, at least, create a reasonable doubt regardingthe case of the appellant/complainant.20. Yet another aspect is worth mentioning. It is a factthat the second respondent happened to be the owner of theproperty at No.99, Thoppai Mudali Street, Royapuram, Chennai-13at one point of time. But it is obvious from the evidence adducedin this case and especially the copy of the sale deed dated23.10.1991 marked as Ex.P14, that the second respondent hadpurchased the property on 23.10.1991. She had sold it on28.03.1994 to one Hannah Beulah Porselvi. The said sale deed hadbeen executed on 28.03.1994 itself, whereas Ex.P1 is dated27.12.1994. That itself will show that the said agreement couldhave been created with the help of the signatures obtained inblank stamp papers and blank papes. 21. The very fact that there is admission on the part of theappellant that he obtained sale agreements as collateral securityfor the repayment of the loan, besides getting cheques for theamount, will go to show that he was over jealous in getting moresecurities for the loan and such an admission will also probablisethe case of the respondents that Ex.P1 and P2 agreements, Ex.P3 toP9 cheques and the letters Ex.P10 and P11 should have been createdwith the help of signatures obtained in blank stamp papers, blankcheques, blank letter heads affixed with stamps and blank papers.22. Yet another admission made by P.W.1 will alsoimprobablise the case of the appellant and probablise the case ofthe respondents. It is pertinent to note that though theappellant has got a claim for such a huge amount he was contentwith preferring a complaint without filing a suit for recovery of https://hcservices.ecourts.gov.in/hcservices/ the said amount. He has also admitted that the agreements forsale were not intended to be agreements for sale but were given ascollateral securities. Though the appellant has stated that onseven occasions he paid a total sum of Rs.11,11,000/-, theparticulars he furnished are not convincing. In Ex.P1, a sum ofRs.50,000/- paid on 17.12.1993 alone has been stated to have beenpaid by cheque. Another sum of Rs.50,000/- allegedly paid on01.11.1994 was said to be paid in cash and the payments made onthree other dates, namely 27.09.1993, 01.06.1994 and 27.06.1994are said to be made in cash as well as by cheques. How much waspaid in cash and how much was paid by cheque has not beenelaborated. Similarly, in Ex.P2, the particulars of payment havenot been furnished. In the notice also particulars as to how muchwas paid as cash and how much was paid by way of cheque have notbeen furnished. Only while deposing as P.W.1 the appellant choseto give such particulars. But it is highly improbable that theappellant might have paid huge amounts of cash on the dates onwhich amounts were also paid by cheques. So far as the amountspaid by cheques or DDs are concerned, the appellant could beexpected to omit to get a receipt as the payment would beevidenced by documents. On the other hand, for cash payments anyprudent man would not omit to get receipts or acknowledgments atthe time of making payment. Several lakhs of rupees are said tobe paid to the first respondent without even getting receipts oracknowledgments in writing. The documents Ex.P1 and P2 came intoexistence only several months after the payments were made.Cheques were also obtained after several months from the date ofalleged payments. 23. All these aspects will probablise the defence theory ofthe respondents or at least create a reasonable suspicionregarding the story of the appellant/complainant. The trial courtseems to have overlooked all these discrepancies and was carriedaway by the assumed contradiction in the stand taken by the firstappellant. Anything short of admission found in the statement ofthe accused given during the examination of the accused underSection 313 Cr.P.C cannot be relied on by the court to convict theaccused. The examination of the accused under Section 313 Cr.P.Cis meant for affording an opportunity to the accused to explainthe incriminating materials found in the evidence adduced againsthim by the prosecution. In this case, the trial court hascommented upon the statement of the accused under section 313Cr.P.C and also the written statement to come to the conclusionthat the defence theory could not be probable. Based on sucherroneous approach alone, the trial court seems to have arrived ata conclusion that the charges against accused were proved beyondreasonable doubt. 24.On the other hand, the learned lower appellate judge, on aproper re-appreciation of evidence, came to a correct conclusionthat the appellant/complainant failed to prove the charge againstthe respondents/accused beyond reasonable doubt; that the approach https://hcservices.ecourts.gov.in/hcservices/ made by the trial court was defective and infirm and that therespondents herein/accused were entitled to be acquitted as thecharges against them were not proved beyond reasonable doubt.This court also, after going through the entire materials, comesto the conclusion that the judgment of the lower appellate courtis neither infirm nor defective and that there is no scope forinterference with the same in this appeal.25. For all the reasons stated above, this court comes to theconclusion that there is no merit in the appeal and the samedeserves to be dismissed. Accordingly, this appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar asr/ToThe Additional District and Sessions Judge (Fast Track Court No.1), Chennai.KA(CO)km/26.6.Crl.A.No.1205/2002