Abdul Nazer v. State of Kerala and P. Rasiya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 26TH DAY OF JULY 2017/4TH SRAVANA, 1939 Crl.Rev.Pet.No. 637 of 2017 () ------------------------------CRA 124/2014 OF SESSION COURT, MANJERI ST 749/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PERINTHALMANNA -----** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** ## **----------------------------------------** **ABDUL NAZER, S/O. KHADER, ACHUVETTIL (H) NAGARAM AMSOM, PONNANI TOWN, P.O.PONNANI, MALAPPURAM DISTRICT.** **BY ADVS.SRI.C.KHALID SRI.T.P.SAJID SRI.K.P.MOHAMED SHAFI SMT.K.REEHA KHADER** ## **RESPONDENT(S)/STATE/DEFACTO/COMPLAINANT:** **-------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN - 682 031.** **2. P. RASIYA,** **W/O. THOTTITHODI NOORUDHEEN, THOTTITHODI (H), VADAKKANGARA AMSOM, MAKKARAPARAMB DESOM - 676 507.** **R1 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-07-2017, ALONG WITH CRRP. 638/2017, CRRP. 639/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** **Crl.Rev.Pet.No. 637 of 2017 ()** **-------------------------------** **APPENDIX** ## **PETITIONERS ANNEXURES:** **----------------------** **ANNEXURE 1: THE COPY OF THE NOTICE DATED** **ANNEXURE 11: THE COPY OF THE STATEMENT OF THE PW1 DATED 29/1/2014 IN ST 749/2012 OF JFCM II PERINTHALMANNA.** ## **RESPONDENTS ANNEXZURES: NIL** **----------------------** ## **/TRUE COPY/** **K.V. P.S.TO JUDGE** ## **ALEXANDER THOMAS, J.** -------------------------------------------------- Crl.R.P.Nos.637, 638 & 639 of 2017 --------------------------------------------------Dated this the 26[th] day of July, 2017 ## _**O R D E R**_ These three revision petitions arise out of three complaints. The parties in these three complaints are the same. The case of the complainant is that an amount of Rs.15,00,000/- was totally owed as liability by the accused to the complainant’s husband and that based on the understanding between the parties, the accused had issued three cheques of Rs.5,00,000/- each drawn from his account and payable in favour of the complainant and that the cheques were dishonoured which resulted in the trial. It is the case of the complainant that since her husband was abroad, it was agreed between her husband and the accused that the accused would execute the cheques in favour of the complainant as payee. Though these three complaints could have been jointly tried, the cases have been tried separately and the appeals have also been disposed of separately. 2. In Crl.R.P.No.637 of 2017, the petitioner/accused has been convicted for the offence under Section 138 of the Negotiable Instruments Act in S.T.No.749 of 2012 as per the judgment dated 11.3.2014 of the Judicial First Class Magistrate Court-II, : **:2::** Crl.R.P. Nos.637, 638 & 639/17 Perinthalmanna. The trial court has sentenced the accused to undergo simple imprisonment for three months and to pay a fine of Rs.5,00,000/and in default thereof, to undergo simple imprisonment for a further period of six months and the fine amount was directed to be disbursed to the complainant as compensation under Section 357(1)(b) of the Cr.P.C. As per the impugned judgment dated 22.2.2017 of the appellate court (Court of Sessions Judge, Manjeri) in Crl.Appeal No.124 of 2014, the abovesaid conviction has been confirmed and the substantive sentence has been reduced to imprisonment till the rising of the court. The fine amount of Rs.5,00,000/- and the default sentence clause of simple imprisonment for six months has also been confirmed, etc. 3. In Crl.R.P.No.638 of 2017, the petitioner/accused has been convicted for the abovesaid offence as per the judgment dated 22.3.2014 of the Judicial First Class Magistrate Court-II, Perintalmanna, in S.T.No.1038 of 2012. He has also been sentenced to undergo simple imprisonment for three months and to pay fine of Rs.5,00,000/- with the default sentence clause of simple imprisonment for six months and direction to disburse the fine amount as compensation. The appellate court as per the judgment rendered on 22.2.2017 in Crl.Appeal No.125 of 2014, has confirmed the abovesaid conviction, but has reduced the substantive sentence to imprisonment till the rising of the court and to Crl.R.P. Nos.637, 638 & 639/17 : **:3::** pay fine of Rs.5,00,000/- with the default sentence clause of six months’ simple imprisonment, etc. 4. In Crl.R.P.No.639 of 2017, the petitioner has been convicted for the offence under Section 138 of the Negotiable Instruments Act as per the judgment dated 11.3.2014 of the Judicial First Class Magistrate Court-II, Perintalmanna in S.T.No.748 of 2012. He has also been sentenced to undergo simple imprisonment for three months and to pay fine of Rs.5,00,000/- with default clause of simple imprisonment for six months and direction to disburse the fine amount as compensation to the complainant, etc. The appellate court as per the judgment rendered on 22.2.2017 in Crl.Appeal No.126 of 2014 has affirmed the abovesaid conviction, but has reduced the substantive sentence to imprisonment till the rising of the court and has also sentenced to pay fine of Rs.5,00,000/- to the complainant as compensation under Section 357(1) (b) of the Cr.P.C. with default clause of simple imprisonment for six months, etc. These judgments of both the courts below in these three complaints are under challenge in these three revision petitions. 5. Though notice has been duly served on R2/complainant in all these three cases, there is no appearance for that party in these cases. 6. Heard Sri.C.Khalid, learned Advocate instructed by Crl.R.P. Nos.637, 638 & 639/17 : **:4::** Smt.Reeha Khader, learned counsel appearing for the revision petitioner/accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State. 7. The gist of the case projected in the complaints is that the husband of the complainant and the accused were known to each other and that in some business transactions, the accused had owed a total sum of Rs.15,00,000/- to the complainant’s husband. Since the complainant’s husband was working abroad, the accused, in discharge of his liability, had issued three separate cheques, each of Rs.5,00,000/-, thus totaling to Rs.15,00,000/-, drawn from his account and payable in favour of the complainant and that the cheques when presented for encashment resulted in dishonour. There are no serious arguments from the learned counsel appearing for the petitioner/accused that the complainant has fulfilled the necessary statutory formalities for initiation of the complaints in question. Therefore, the aspects in that regard need not be examined by this Court. However, the main arguments raised by the learned counsel appearing for the revision petitioner are as follows : - (i) The nature of the alleged business transactions between the accused and the complainant’s husband as well as the dates on which the alleged transaction has taken place, which led to : **:5::** Crl.R.P. Nos.637, 638 & 639/17 the alleged liability, the date on which the three cheques have been allegedly handed over by the accused to the complainant, etc. are conspicuously omitted to mention in the statutory demand notice, complaint as well as in the proof affidavit. Therefore, it is stated that the case of the complainant is liable to be thrown out and the accused is entitled for the benefit of acquittal in view of the legal principles laid down by the decisions of this Court in _**K.K.Divakaran v. State of Kerala**_ reported in _**2016 (4) KLT 233**_ . - (ii) The second argument raised by the petitioner is that no material evidence whatsoever has been let in by the complainant that her husband had source of funds to raise such a huge amount of Rs.15,00,000/- at the relevant time to be advanced to the accused which led to the liability. It is, therefore, argued on the basis of the decision of the Apex Court that the complainant is thus disentitled from drawing the benefit of the statutory presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act. - (iii) The third contention raised by the petitioner/accused is that PW1/complainant has deposed in evidence that there was an : **:6::** Crl.R.P. Nos.637, 638 & 639/17 agreement between her husband and the accused which led to the alleged liability, but that agreement has not been produced before the court. It is also contended before this Court that even according to the case of PW1 that she would depose that she is totally unaware about the contents of the said agreement. It is also pointed out that PW1 has deposed that two other independent witnesses have witnessed the handing over of the cheque by the accused to the complainant. But that persons have not been examined as witnesses in the present case. (iv) The fourth contention raised by the petitioner is that even by the very case set up by the complainant, the liability was owed by the complainant’s husband to the accused and further that the payee of the cheque is the complainant and not her husband and that therefore, dishonour of such a cheque for which the alleged liability is owed to a person other than the payee cannot attract the offence under Section 138 of the Negotiable Instruments Act. 8. The relevant averments stated in each complaint regarding the alleged transactions are as follows : “¥ÈcÞÏAÞøßÏᢠdÉÄßÏᢠÉøߺÏAÞøÞÃá.ådÉÄß ¥ÈcÞÏAÞøßÏáæ¿ : **:7::** Crl.R.P. Nos.637, 638 & 639/17 ÍVJÞÕáÎÞÏáU ÌßTßÈTí §¿ÉÞ¿ßW 1500000/_ (ÉÄßÈFí Üf¢) øâÉ ÈWµáÕÞÈáIÞÏßøáKá.å¥ÈcÞÏAÞøßÏáæ¿ ÍVJÞÕí ç¼ÞÜß ¦ÕÖcÞVj¢ ·ZËßW çÉÞµáK ØÎÏ¢ dÉÄßÏᢠÍVJÞÕᢠµâ¿ß ÍVJÞÕßæa ÎAøÉùOßæÜ ÕàGßW æÕºîí Ø¢ØÞøßAáµÏᢠdÉÄß ÍVJÞÕßÈá ÈWµáÕÞÈáU çÎW 1500000/_ (ÉÄßÈFí Üf¢) øâÉ ¥ÈcÞÏAÞøß ÉAW 2012 ¼ÈáÕøß ¦Æc¢ ¯WMßAáÕÞX dÉÄßçÏÞ¿í ¦ÕÖcæM¿áµÏᢠdÉÄß çÎW Äáµ çÎW ÄßÏîÄßAí ¥ÈcÞÏAÞøß ÉAW ÄøÞæÎKí ¥ÈcÞÏAÞøßçÏÞ¿í ØNÄßAáµÏᢠæºÏñá.åÄá¿VKí dÉÄß 2012 ¼ÈáÕøßÏßW ¥ÈcÞÏAÞøßÏáæ¿ çÎW ÕàGßW ÕøßµÏᢠçÎW ÄáµAí 5 ܵí×¢ øâÉ ÕàÄÎáU Õß¼Ï ÌÞCí æÉÞKÞÈß dÌÞFßæa 3 æºAáµ{ßW ÕßÕßÇ ÄßÏîÄß æÕºîí ¥ÈcÞÏAÞøßÏáæ¿ çÉøßW ®ÝáÄß ²MßGí ¥ÈcÞÏAÞøß ÉAW ÈWµáµÏᢠæºÏñá.” Thus the scanning of the abovesaid averments in the complaints would show that the complaints only make a bald averment that there were some business transactions between the complainant’s husband and the accused, by which a liability of Rs.15,00,000/- was owed by the accused to the complainant’s husband and that the accused had issued the instant three cheque for Rs.5,00,000/- each to the complainant for discharging the abovesaid liability. The complaint, statutory demand notice and the proof affidavit are conspicuously silent as to the nature of the business transactions allegedly entered into between the complainant’s husband and the accused, the dates and particulars of the transactions which led to the liability of Rs.15,00,000/- owed by the accused to the complainant’s husband, the date on which the accused has allegedly handed over the three cheques of Rs.5,00,000/- each to the complainant, etc. : **:8::** Crl.R.P. Nos.637, 638 & 639/17 9. This Court in the decision in _**K.K.Divakaran v. State of Kerala**_ reported in _**2016 (4) KLT 233**_ has held that where neither the nature of the transaction nor the date of the transaction between the parties nor the details of handing over the cheque, etc. are disclosed in a complaint, it would amount to suppression of material and crucial facts relating to the alleged transaction and that such an artifice is used by certain litigants with the intention to develop a story after knowing the defence that may be set up by the opposite party and that the doors of a criminal court should be closed to such fortune seekers. Further that in a criminal case the accused should be informed before the trial not only of the nature of the offence, but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused to a fair trial, which is a constitutional right guaranteed under Article 21 of the Constitution of India. An accused in a complaint case filed under Section 142 of the Negotiable Instruments Act is entitled to know before the trial the particulars of the accusation against him and suppression of such material particulars in the complaint alone is sufficient to order the acquittal of the accused. It will be profitable to refer paragraphs 18 and 20 of _**K.K.Divakaran v. State of Kerala**_ reported in _**2016 (4) KLT 233**_ , which read as follows : Crl.R.P. Nos.637, 638 & 639/17 : **:9::** - _“18. Before she filed the complaint the second respondent sent Exhibit P4 statutory notice to the revision petitioner informing him about the dishonour of the cheque and demanding payment of the amount covered by it. Neither the nature, nor the date of the transaction between the parties nor the date of issuance of the cheque was disclosed in it. There was only a bald statement that the revision petitioner issued a cheque bearing the date 11.1.1999 for Rs.2,55,000/- in discharge of a debt. There is no explanation why these material facts were not disclosed in the statutory notice. Suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear. They want to develop a story after knowing the defence that may be set up by the opposite party. The doors of the court should be closed to such fortune seekers._ _19. ......................................._ _20. In a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution. An accused in a complaint case filed under Section 142 of the Act also is entitled to know before the trial the particulars of the accusation against him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal.”_ . It is only to be held that such non disclosure and suppression of crucial material facts in the complaint regarding the nature of the business transactions and that the details as stated herein above would be nothing short of depriving the accused the right, fair and free trial and the accused is entitled for the benefit of acquittal. Both the courts below ought to have taken into account these crucial and relevant aspects of the matter and non-consideration of such aspect would amount to a serious illegality and impropriety in the rendering of the impugned Crl.R.P. Nos.637, 638 & 639/17 : **:10::** judgments of both the courts below. This Court is of the firm opinion that the accused is entitled for the benefit of acquittal on this ground alone. 10. From a reading of the complaints as well as the evidence of PW1, it can be seen that no iota of material evidence has been let in to prove the crucial fact that the complainant’s husband had necessary source of funds at the relevant time to raise such a huge amount of Rs.15,00,000/- for being advanced to the accused. The Apex Court in the judgment in _**John K.Abraham v. Simon C.Abraham**_ reported in _**(2014 (2) SCC 236)**_ has held that in order to enable the complainant to draw the benefit of statutory presumption envisaged under Section 118 (a) and Section 139 of the Negotiable Instruments Act, the burden is quite heavy on the complainant to prove that he had the requisite source of funds for making borrowal of the money for the transaction in question. The legal position in this regard has been reiterated by the Apex Court in _**K.Subramani v. K.Damodara Naidu**_ reported in _(_ _**2015) 1 SCC 99**_ **.** It is only to be held that the complainant cannot succeed to claim the benefit of statutory presumption under Section 118(a) and Section 139 of the N.I. Act in the facts and circumstances of this case. Moreover, in the absence of crucial evidentiary aspects, it will be highly unsafe for any criminal court to convict an accused from the given facts of the case. : **:11::** Crl.R.P. Nos.637, 638 & 639/17 11. PW1 has claimed in her deposition that there was written agreement between the complainant’s husband and the accused which would show the alleged liability of Rs.15,00,000/- owed by the accused to her husband and that a photocopy of the said alleged sale agreement is available. But, the complainant has not produced either the original or photocopy of any such agreement. PW1 has also deposed that apart from her, there were two other independent witnesses who had seen the tendering of the three cheques by the accused to the complainant. But, none of such persons have been examined as witness in the instant case to prove such a fact. These aspects could also raise a serious suspicion in the mind of any criminal court about the very believability and genuineness of the case set up by the complainant. PW1 has further testified that her husband had entered into a transaction with the accused for sale of a textile shop situated near Manjeri-Pandikkad Road. Except making this bald suggestion, no material evidence in that regard has been produced by the complainant. Further PW1 has also submitted that though the said shop was purchased by the accused for Rs.45,00,000/- in October, 2011, she would also claim that there was an agreement in that regard and that she is not a witness to that agreement and that she does not know who were all the witnesses to that agreement or as to what are the : **:12::** Crl.R.P. Nos.637, 638 & 639/17 conditions in that agreement, etc. Except making such claims, no convincing evidence whatsoever has been let in in this case to prove even remotely any such factual aspects. Therefore, in the light of all these aspects, the irresistible conclusion that could have been arrived at by a criminal court is that it is highly unsafe to raise such a conviction in the light of serious deficiencies in prosecution of the present complaints. Both the courts below have shutout all these crucial and relevant aspects. This Court is of the firm view that the accused is entitled for the benefit of acquittal. 12. Accordingly, it is ordered that the impugned judgments of both the courts below in these three cases are set aside. The accused is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act in these three complaints and he is set at liberty. The petitioner may produce certified copies of this order before the trial court for necessary information. With these observations and directions, the Crl. Revision Petitions will stand finally disposed of. **ALEXANDER THOMAS JUDGE** csl : **:13::** Crl.R.P. Nos.637, 638 & 639/17 ## **ALEXANDER THOMAS, J.** ------------------------------------------------Crl.R.P.Nos.637, 638 & 639 of 2017 -------------------------------------------------Dated this the 3[rd] day of July, 2017 ## _**O R D E R**_ The petitioner will make available photocopies of the demand notice, complaint, proof affidavit and depositions and documents in respect of the trial. List on 10.7.2017. **ALEXANDER THOMAS JUDGE** csl