Afsal A.K. v. M.K. Thanseerudheen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939** **Crl.Rev.Pet.No. 71 of 2017 ()** **-----------------------------CRA 16/2016 OF SESSION COURT,(ADDL SESSIONS COURT-1) KOZHIKODE CC 1921/2015 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE(NI ACT) COURT, KOZHIKODE -----** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **AFSAL A.K. S/O MUHAMMED, AGED 29 YEARS, KUTHIRATTUPARAMBIL AZHINJILAM, MALAPPURAM DIST- 673 654** **BY ADV. SRI.SRINATH GIRISH** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE:** **-----------------------------------------------** **1. M.K.THANSEERUDHEEN, S/O MOIDEEN, AGED 28 YEARS ANUGRAHA COTTAGE, MEEMULLANPARA, MAVOOR, KOZHIKODE DIST- 673 661** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **R1 BY ADV. SRI.U.K.DEVIDAS R2 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## ALEXANDER THOMAS, J. -----------------------Crl.R.P.No. 71 of 2017 ----------------------------Dated this the 25[th] day of July, 2017 ## ORDER The revision petitioner, who had faced indictment under Section 138 of the Negotiable Instruments Act was found guilty by both the courts below. As per judgment rendered on 18.12.2015, the trial court concerned (Special Judicial First Class Magistrate Court (NI Act, Cases), Kozhikode) had convicted and sentenced the petitioner in C.C.No.1921 of 2015. The petitioner was sentenced to undergo simple imprisonment for two months and was directed to pay a fine of Rs.700,000/- and in default of payment of the fine, he has to undergo simple imprisonment for a period of three months and fine amount so realised was directed to be disbursed to the complainant as compensation under Section 357(1)(b) of Cr.P.C. The appellate Sessions Court concerned (Court of First Additional Sessions Judge, Kozhikode), in Crl.Appeal No.16 of 2016 has confirmed the above said conviction and has Crl.R.P.No. 71 of 2017 2 dismissed the said appeal thereby confirming the conviction and sentence passed by the trial court. It is aggrieved by the concurrent verdicts of both the courts below, the petitioner has preferred the instant revision petition by invoking the remedies under Section 397 read with Section 401 of Cr.P.C. 2. Heard Sri.Srinath Girish, learned counsel for the revision petitioner/accused, Sri.U.K.Devidas, learned counsel for the 1[st] respondent/complainant and Sri.Saigi Jacob Palatty, learned Public Prosecutor for 2[nd] respondent/State. 3. The gist of the case projected in the complaint is that in discharge of a debt of Rs.6,00,000/- owed by the accused to the complainant, the revision petitioner/accused had issued Ext.P1 cheque dated 22.02.2014 for Rs.6,00,000/- drawn from his account and payable in favour of the complainant. The cheque when presented was dishonoured on the ground of insufficiency of funds as per Ext.P2 memo. Thereupon the complainant had issued Crl.R.P.No. 71 of 2017 3 Ext.P3 statutory demand notice dated 21.04.2014 calling upon the accused to pay off the amount covered by the cheque within a period of 15 days from the date of receipt of the said notice. The said notice sent by registered post was received by the accused as per Exts.P4 and P5. The accused had sent Ext.P6 reply notice, denying the liability and stating that the accused and the complainant were jointly running an internet cafe and though the said business was stopped, some of the signed cheque leaves of the revision petitioner have been misused by the complainant, who had access to it in the joint running of the said business etc. 4. During the trial the complainant has examined himself as PW1 and marked Exts.P1 to P6 documents. The defence has not adduced any oral or documentary evidence. 5. Both sides have made elaborate arguments. Sri.Srinath Girish, learned counsel for the revision petitioner/accused would in particular raised the following contentions:- Crl.R.P.No. 71 of 2017 4 (A) The specific case taken up by the complainant to justify the source of funds is that a loan was taken by the complainant's father to send the complainant to Australia and that the loan amount of Rs.10,00,000/- has been credited in Ext.P8 bank passbook on 30.03.2013 and that the amounts from Ext.P8 passbook were used for the borrowal transaction whereby the complainant had advanced a sum of Rs.6,00,000/- to the accused on 20.10.2013. The counsel for the accused would contend that Ext.P8 has been marked subject to proof as the accused had objected to its marking. Ext.P8 could have been proved only either by the officials of the Bank concerned (Malappuram District Co-operative Bank Ltd.) or by its account holder (complainant's father). Neither the Bank officials nor the complainant's father has been examined as the witnesses in this case to prove Ext.P8. Therefore, it is contended that both the courts below committed grave illegality in treating Ext.P8 as an admissible document and it is only on the basis of Ext.P8, Crl.R.P.No. 71 of 2017 5 both the courts below held that the complainant had source of funds for advancing the amount of Rs.6,00,000/- to the accused on 20.10.2013. Therefore, it is argued that the foundation of the case set up by the complainant would collapse in aspect as Ext. P8 is admissible in evidence and that since no other evidence has been let in by the complainant to prove his source of funds, the complainant is not entitled to get the benefit of statutory presumption under Section 118(a) read with Section 139 of the NI Act. Reliance is placed on the judgments of the Apex Court in John K.Abraham v. Simon C. Abraham and another (2014) 2 SCC 236 and in K.Subramani v. K.Damodara Naidu (2015) I SCC 99 (B) Alternatively it is argued by the revision petitioner that Ext.P8 would not amount to sufficient evidence to prove the source of funds for the accused for making the borrowal on 20.10.2013. It is pointed out that Ext.P8 passbook would reveal that an amount of Rs.10,00,000/has been credited on 30.03.2013. Further the said Crl.R.P.No. 71 of 2017 6 document, which was produced before the trial would show that an amount of Rs.5,00,000/-, Rs.94,000/- and Rs.4,00,000/- were respectively withdrawn from the said account on 19.04.2013, 29.04.2013 and 27.05.2013. According to the complainant the borrowal has taken place on 20.10.2013. No explanation has been given by PW1 as to how those money were kept unutilised for payment to the accused on 20.10.2013. It is pointed out that by the ordinary course of human nature, those monies withdrawn on 19.04.2013, 29.04.2013 and 27.05.2013 would have been used for some other purposes or could have been deposited in some other bank accounts and that no material evidence has been let in to prove the crucial fact that Rs.6,00,000/- was readily available with the complainant immediately prior to 20.10.2013. (C) It is also argued that PW1 has deposed that the instant borrowal transaction took place on 20.10.2013 and that four months prior to that, the complainant had advanced another sum of Rs.3,10,000/- as personal loan to Crl.R.P.No. 71 of 2017 7 the accused. On this basis it is argued by the petitioner that assuming the above said versions of the complainant regarding the earlier advance of Rs.3,10,000/- in June 2013 is correct, then no ordinary prudent person standing in the shoe of the complainant would have advanced another huge sum of Rs.600,000/- to the accused on 20.10.2013, when it was well known to the complainant that the accused had not cleared the alleged first loan amount of Rs.3,10,000/-. [Incidentally, it is also pointed out that the complainant has initiated yet another complaint for the offence under Section 139 of the NI Act against the present accused for the alleged advance of Rs.3,10,000/- in June 2013]. It is thus argued that the complainant is not entitled to get the statutory presumption under Section 118(a) and Section 139 of NI Act, in view of the above said judgments of the Apex Court. It is argued by Sri.Srinath Girish, learned counsel for the revision petitioner/accused that these aspects would also highly improbablise the version of the complainant, Crl.R.P.No. 71 of 2017 8 about the alleged borrowal, which has taken place in the instant case on 20.10.2013. 6. Per contra Sri.U.K.Devidas, learned counsel for the 1[st] respondent/complainant would submit that Ext.P7 receipt would prove the fact that the accused had taken a personal loan of Rs.6,00,000/- from the complainant on 20.10.2013 assuring to repay the same by 07.11.2013 etc. It is further pointed out that the source of the funds of the complainant was the one referred to in Ext.P8 passbook, which was obtained by the complainant's father as a loan and that it is perfectly legal for both the courts below to have admitted Ext.P8 passbook as evidence. Various other contentions have been made by both sides. 7. On hearing both sides, this Court is of the considered view that the aforementioned contentions raised by the petitioner has not been properly considered in its correct factual and legal perspective by both the courts below. Such non consideration of crucial and relevant aspects would amount to a serious illegality and impropriety Crl.R.P.No. 71 of 2017 9 in the rendering of the impugned judgments. The matter, therefore, certainly requires a second look. Ordinarily this Court would have remitted the matter to the trial court, but that would entail lot of unnecessary delays. Therefore this Court is of the firm view that ends of justice would be sufficiently met, if the matter is remitted to the appellate court for consideration of the matter afresh. 8. In this view of the matter the impugned appellate judgment dated 31.10.2016 rendered by the Court of First Additional Sessions Judge, Kozhikode in Crl.Appeal No.16 of 2016 will stand set aside and the same will stand restored to the file of the appellate sessions court. 9. The learned counsel for the revision petitioner/accused and learned counsel for the respondent/complainant will personally appear before the appellate sessions court at 11 a.m. on 25.08.2017. The appellate court will then fix the date of hearing, which is convenient to both sides and then proceed with the disposal of the appeal without much delay. Crl.R.P.No. 71 of 2017 10 10. Having regard to the fact that the matter has been pending before the court below for quite sometime, it is ordered in the interest of justice that the appellate sessions court will ensure that priority is given for the hearing and disposal of the aforesaid appeal and ensure that the appeal is disposed of without much delay, preferably within a period of 4 months from the date of receipt of a certified copy of this order. Both sides will also give their written argument notes which shall form part of the court records. 11. Registry will ensure that LCR and a copy of this order is forwarded to the appellate court for necessary information and action. With these observations and directions, this revision petition stands finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE AMV/27/07/2017 /TRUE COPY/ P.A.TO JUDGE