A.K. Rajesh Kumar Panangottu Veedu v. Mohammed Iqbal and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942** ## **CRL.A.No.1846 OF 2006** **AGAINST THE ORDER/JUDGMENT IN ST 19/2005 DATED 28-06-2006 OF JUDICIAL FIRST CLASS MAGISTRATE -VII, THIRUVANANTHAPURAM** **(THE ORDER/JUDGMENT IN Crl.L.P. 449/2006 DATED 01-09-2006 OF HIGH COURT OF KERALA** ## **APPELLANT/COMPLAINANT:** **A.K.RAJESH KUMAR PANANGOTTU VEEDU, CHOOZHAMPALA, MUKKOLA (P.O.),, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.GOPAKUMAR R.THALIYAL** ## **RESPONDENTS/ACCUSED & STATE:** **1 MOHAMMED IQBAL S/O.MOHAMMED MAITHEEN, T.C. 5/2211,, KAWDIAR GARDENS - B10, JAWAHAR NAGAR (P.O.),, THIRUVANANTHAPURAM. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SMT.REENA THOMAS R1 BY ADV. SRI.MOHAN JACOB GEORGE R1 BY ADV. SMT.P.V.PARVATHI R2 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.K.B.UDAYAKUMAR,SENIOR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1846 OF 2006** 2 ## **JUDGMENT** ## **Dated this the 1st day of December 2020** This appeal is filed by the complainant in S.T. No.19/2005 challenging the acquittal order passed by the Judicial First Class Magistrate Court VII, Thiruvananthapuram. It is a prosecution initiated by the appellant/complainant against the first respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant as per the complaint is that the accused owes an amount of Rs.80,000/- to the complainant and in discharge of the same, the accused issued a cheque dated 6.12.2001 drawn on Indian Overseas Branch, Kuravankonam branch. When the complainant presented the cheque for collection through S.B.T, Peroorkada branch, the cheque was returned dishonoured due to insufficiency of funds. The complainant issued a demand notice calling upon the accused to pay back the amount. The accused received the notice but did not repay the cheque amount. Hence, the complaint was filed. 3. To substantiate the case, the complainant himself was examined **CRL.A.No.1846 OF 2006** 3 as PW1. Exts. P1 to P5 were marked on the side of the complainant. The accused himself was examined as DW1 and D1 to D3 were also marked on his side. After going through the evidence and documents, the trial court found that the accused is not guilty of the offence under Section 138 of the Negotiable Instruments Act and accordingly, he was acquitted under Section 251 (1) Cr.P.C. Aggrieved by the above acquittal order, this Crl.Appeal is filed. 4. Heard counsel for the appellant and the counsel for the first respondent. I also heard the Public Prosecutor. 5. The counsel for the appellant submitted that the judgment of the lower court is perverse. The learned counsel submitted that the finding of the trial court cannot be accepted at all. The counsel also submitted that issuance of the cheque is admitted by the accused. In such circumstances, there is a presumption in favour of the complainant. The counsel submitted that the learned Judge without considering the evidence adduced by the complainant, accepted the case of the defence and acquitted the accused. The counsel submitted that the complainant narrated the transaction in detail in his evidence. The counsel submitted that without looking into those evidence, the trial court relied one stray sentence in the evidence to the effect that the accused was introduced to the complainant by one Gopan, and **CRL.A.No.1846 OF 2006** 4 thereafter found that the defence case is probable. The defence case is that one Gopan introduced the accused to the complainant and the accused borrowed an amount of Rs.30,000/- for which, a blank cheque was issued. Even after the payment of the amount, the blank cheque was not returned and the same is misused. The counsel for the complainant submitted that this case of the defence was accepted by the trial court without considering the evidence adduced by the complainant. The counsel submitted that the scope of the presumption under Section 139 of the Negotiable Instruments Act is not at all considered by the trial court. The counsel for the complainant also relied on the judgment of the Apex Court in **Rohitbhai Jivanlal Patel Vs. State of Gujarat and Another (2019 (2) KHC 243)** to contend that an appeal against acquittal in a proceedings under Section 138 of the Negotiable Instruments Act is to be considered in a different footing. The counsel also pressed the relevant paragraphs of the above judgment in which the ingredients of the offence is considered by the Apex Court in detail and discussed. 6. The counsel for the first respondent/accused supported the impugned judgment. But he submitted that, if the findings of the trial court in the impugned judgment is not acceptable to this court, the counsel submitted that there is absolutely no details of the transaction **CRL.A.No.1846 OF 2006** 5 is mentioned either in the statutory notice which is produced as Ext.P4 or in the complaint filed before the lower court. The counsel submitted that in the complaint, it is only stated that “the accused owes an amount of Rs.80,000/- to the complainant and in discharge of that debt, the accused issued a cheque …..”. The counsel submitted that this is not a description of a transaction. The counsel relied on the judgment of this Court in **Divakaran Vs. State of Kerala (2016 (4) KLT 234).** 7. The point for consideration in this case is whether the accused committed the offence under Section 138 of the Negotiable Instruments Act. 8. I considered the contentions raised by the appellant and the first respondent. It is true that the findings of the trial court on which the accused is acquitted in this case is not satisfactory. The trial court relied on a stray sentence in the evidence of PW1 to the effect that the accused was introduced to him by Gopan, and thereafter the entire defence evidence is accepted and the accused is acquitted. I cannot agree with such a finding of the trial court. 9. But it is an appeal against acquittal. One of the point raised by the accused is that the transaction between the complainant and the accused is not correctly averred either in the complaint or in the **CRL.A.No.1846 OF 2006** 6 ## statutory notice. I perused Ext.P3 statutory notice. The relevant portion is extracted hereunder. _“You owe an amount of Rs.80,000/- (Rupees Eighty thousand only) to my client and in discharge of that debt you have issued a cheque No.031712 dated 06/12/01 for Rs.80,000/- drawn on the Indian Overseas Bank, Kuravankonam, Trivandrum. My client presented the said cheque for encashment through his Bank, the STATE BANK OF TRAVANCORE, Peroorkada Branch, Thiruvananthapuram, and your Bank returned the cheque unpaid with an endorsement 'Insufficient Funds'. The fact of dishonour was intimated to my client on 26.12.2001.”_ ## 10. I also perused the relevant portion of the complaint filed by the ## complainant and about the transaction. The relevant portion of the complaint is extracted hereunder. “The accused owes an amount of Rs.80,000/- (Rupees Eighty Thousand only to the complainant and in discharge of that debt, the accused issued a cheque No.031712 dated 6.12.2001 for Rs.80,000/- (Rupees Eighty thousand only) drawn on the Indian Overseas Bank, Kuravankonam Branch, Thiruvananthapuram. 2. The complainant presented the cheque for encashment through his bank 'The State Bank of Travancore' Peroorkada Branch, Thiruvananthapuram on 21.12.2002. The cheque was dishonoured and returned with an endorsement “insufficient funds” on 26.12.2001. The fact of dishonour was intimated to the accused by Advocate's Notice dated 31.12.2001 and the notice was accepted by the accused on 7.1.2002.” 11. This Court in **Divakaran Vs.State of Kerala (2016 (4) KLT** ## **233** ) observed like this. _“18. Before she filed the complaint the second respondent sent Ext 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_ **CRL.A.No.1846 OF 2006** 7 _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. In the complaint also neither the nature, nor the date of the transaction between the parties is mentioned. The only addition made in the complaint is that the date of issuance of cheque is 14.9.1998. For the first time it was in her evidence the 2nd respondent (PW1) disclosed that the transaction between the parties was a loan of Rs. 1,95,000/-. In answer to a leading question put in the examination in chief she stated that the transaction was after the marriage between her daughter Sulatha and the revision petitioner's son Pradeep, which was solemnised on 23.1.1998. She testified that the revision petitioner requested for a loan of Rs. 3 lakh one week after the marriage of Sulatha and Pradeep and she paid him Rs. 1-1/2 lakh on 9.4.1998 and Rs. 45,000/- on 8.5.1998. The amount mentioned in the cheque is Rs. 2,55,000/- though the loan amount was only Rs. 1,95,000/- Rs. 60,000/- is said to be interest. How the interest was calculated will be considered later. Her story is that in August 1998 she made a demand for repayment of the amount and then the revision petitioner undertook to pay the amount in January 1999; the 2nd respondent insisted on getting a cheque and a document from the revision petitioner; on 14.9.1998 at her residence at Pampadi the revision petitioner executed Ext P1 cheque and Ext P8 undertaking._ _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._ _21. A similar case came up for consideration before the Supreme Court in Vijay v. Laxman and another (2013 (3) SC 86). The_ **CRL.A.No.1846 OF 2006** 8 _allegation of the complainant in that case was the liability of the accused which arose from a loan transaction. But the former did not produce many materials to prove the transaction; he did not even mention in the complaint the date on which the loan was advanced. The Supreme Court observed:_ _"The High Court has rightly accepted the version given by the respondent-accused herein. We say so for reasons more than one. In the first place the story of the complainant that he advanced a loan to the respondent-accused is unsupported by any material leave alone any documentary evidence that any such loan transaction had ever taken place. So much so, the complaint does not even indicate the date on which the loan was demanded and advanced. It is blissfully silent about these aspects thereby making the entire story suspect. We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Sections 118 and 139 of the Negotiable Instruments Act make that abundantly clear. That presumption is, however, rebuttable in nature. What is most important is that the standard of proof required for rebutting any such presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. It is trite that the courts can take into consideration the circumstances appearing in the evidence to determine whether the presumptions should be held to be sufficiently rebutted. The legal position regarding the standard of proof required for rebutting a presumption is fairly well settled by a long line of decisions of this Court."_ _The court further observed: "..........................the absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance." It held that the High Court was perfectly justified in its conclusion that the prosecution failed to make out the case against the accused and in acquitting him of the charge”._ 12. In the light of the above judgment, it is clear that neither the nature nor the date of the transaction between the parties is mentioned either in the statutory notice or in the complaint. This Court **CRL.A.No.1846 OF 2006** 9 observed that in a criminal case, the accused should be informed before the trial not only the nature of the offence but also the particulars of the transaction which are necessary to effectively defend the case. This Court also observed that unscrupulous complainants refused to do so with the object of denying the accused a fair trial which is a right guaranteed under Article 21 of the Constitution. This Court also observed that the accused in a case filed under Section 142 of the Negotiable Instruments 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. 13. In the light of the above principle laid down by this Court in **Divarakaran's** case (supra), I think the accused is entitled the benefit of doubt. I see no reason to interfere with the acquittal order passed by the lower court. Therefore this Crl.Appeal is dismissed confirming the acquittal order passed by the trial court for the reasons stated in this judgment. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** **Al/-+**