Balakrishnan v. Sankaranarayanan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 31ST DAY OF JULY 2017/9TH SRAVANA, 1939** **Crl.L.P..No. 282 of 2017 () ----------------------------** **ST 147/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, TIRUR.** **.......** ## **PETITIONER/COMPLAINANT:** **-----------------------** **BALAKRISHNAN, S/O.NARAYANAN NAIR, PARAYATH VALAPPIL HOUSE, THRIKKANAPURAM AMSAM, KALOOR DESAM, PONANI, AYINKALAM, KUTIPPURAM.** **BY ADV. SRI.A.KRISHNAN** ## **RESPONDENTS/ACCUSED:** - **--------------------** **1. SANKARANARAYANAN, S/O.MADHAVI AMMA, VALIYAKUNNU AMSAM DESAM, TIRUR TALUK-676552.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 31-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** **Crl.L.P..No. 282 of 2017 () ---------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A : TRUE COPY OF THE ORDER OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, TIRUR, IN S.T.NO.147/15 DATED 7.5.2016.** **RESPONDENTS' ANNEXURES:** **NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## ALEXANDER THOMAS, J. ================== Crl.L.P.No. 282 of 2017 ================== Dated this the 31[st] day of July, 2017 J U D G M E N T This is an application seeking special leave of this Court under Sec. 378(4) of the Cr.P.C. for filing criminal appeal to challenge the impugned the judgment dated 7.5.2016 rendered by the trial court concerned (Court of Judicial First Class Magistrate-II, Tirur), whereby the accused (R-1 herein) in S.T.No.147/2015 has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. The petitioner herein is the complainant in S.T.No.147/2016 and the 1[st] respondent herein is the accused. 2. Heard Sri.A.Krishnan, learned counsel appearing for the revision petitioner (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-2 State. In the nature of the order that is proposed to be passed in this petition, notice to R-1 (accused) will stand dispensed with. 3. The gist of the allegations in the complaint is that for discharging a debt of Rs.4 lakhs, the accused had issued Ext.P-1 cheque dated 6.1.2015 for Rs. 4 lakhs drawn from his account and payable in favour of the complainant, which when presented resulted in dishonour as per Exts.P-2 and P-3 memos. That the petitioner after following the Crl.L.P.282/17 - : 2 :- requisite formalities including registered demand notice, etc. has instituted the present complaint. 4. During the trial the complainant has examined himself as P.W-1 and has marked Exts.P-1 to P7 document. The defence has adduced documentary evidence as per Ext.D-1 to D-3. No oral evidence was let in by the accused. 5. The basic defence case set up by the accused is that he had previously borrowed an amount of Rs.1 lakh from the complainant sometime in 2012-13 and that at that point of time, he was forced to give a blank signed cheque as security to the complainant and that later despite paying off the entire amounts due in that regard, the complainant had not returned the cheque, which has been misused for the purpose of instituting the present complaint, etc. Therefore, going by the nature of the defence case set up by the accused, there is no serious dispute that the signature in the dishonoured cheque belongs to the accused and that the cheque has been drawn from his account. Hence the as per legal principles laid down by the Apex Court and by various High Courts as in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441, Vasanthakumari v. Vijayakumar, reported in (2015) 8 SCC 378, etc. the benefit of the statutory presumption under Sec.139 of the N.I. Act, could be claimed by the complainant in the facts and circumstances of this case. However, from a perusal of the impugned judgment, it can be seen that the trial Crl.L.P.282/17 - : 3 :- court has taken the firm view that the accused could successfully rebut the statutory presumption. The reasonings on the basis of which the trial court has come to this considered conclusion are as follows: (A) The statutory demand notice, complaint and the proof evidence are conspicuously silent about the nature of the transactions entered into between the complainant and the accused, which led to the alleged liability, the date on which the alleged borrowal was taken place, the date on which Ext.P-1 cheque has been handed over by the accused to the complainant. In K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, it has been held by this Court 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 transactions which are necessary for him effectively meet the case against him. But that unscrupulous complainants refuse to do so with the ulterrior object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution of India. An accused in a complaint case filed under Sec. 142 of the Act also is entitled to know before the trial the particulars of the accusations against him and that suppression of these particulars in the complaint alone is sufficient to order his acquittal. It will be profitable to refer to paras 18 and 20 of the abovesaid decision in K.K.Divakaran's case supra, which read as follows: “18. Before she filed the complaint the second respondent sent Ext.P4 statutory notice to the revision petitioner informing him about the Crl.L.P.282/17 - : 4 :- 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. xxx xxx xxx 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.” Therefore, going by the legal principles laid down by this Court in K.K.Divakaran's case supra, the trial court cannot be said to have committed any illegality or impropriety in having reached the considered conclusion that non-disclosure of such crucial and relevant aspects relating to the material particulars regarding the transactions, which led to the liability and about the aspects relating to the handing over of the cheque, etc. would amount to suppression of the crucial and relevant aspects and that the case of such a complainant is liable to be thrown out and that the accused is entitled for the benefit of acquittal. The complainant has not given any reason as to why he has not disclosed these crucial and vital aspects in the complaint and in the proof affidavit. (B) The trial court found that the complainant (P.W-1) is residing Crl.L.P.282/17 - : 5 :- at Thavanoor in Ponnani Taluk, whereas the accused is hailing at Irumbanam, in Tirur Taluk. Further that P.W-1 has deposed that the accused is not his relative. The trial court found that the accused and the complainant are not related, and they are residing at different places. Therefore, the trial court also found that in such cases, the complainant has to adduce necessary evidence to convince the court as to the circumstances, which induced him to part with such a huge amount of Rs.4 lakhs to the accused without any security and without any documentation or receipts. The trial court found that any ordinary prudent person standing in the shoe of the complainant would not have advanced such a huge amount to a person, who is not personally related to him and who is residing in a far away place, without any security, documentation, receipts, etc. Therefore, the trial court held that the versions of the complainant regarding the transactions are not above suspicion and that the complainant has not been able to establish a case, which is believable and credible and that in such a case, it will not be safe to rest conviction on the basis of such suspicions, which are lying unanswered in the mind of the court. (C) The case projected by the complainant in his complaint is that the accused had issued Exts.P-1 cheque dated 6.1.2015 for discharge of the liability. He has no case in the complaint or in the chief affidavit that the accused had issued a post-dated cheque. It was only Crl.L.P.282/17 - : 6 :- during the cross examination that P.W-1 would venture to suggest that the cheque was issued to him as a post dated one. These aspects also created suspicions in the mind of the trial court about the believability and credibility of the very case set up by the complainant. (D) The defence has produced Exts.D-1 to D-3 as defence documents and it was marked through P.W-1. Exts.D-1, D-2 and D-3 are the FIR, final report in respect of the said crime registered at Kuttipuram Police Station, wherein the complainant is the accused therein and the complaint has been lodged at the instance of the wife of the accused. The allegations therein are that the complainant is charging exorbitant interest and therefore he has been arrayed as accused for offence punishable under the Kerala Money Lenders Act and the Prohibition of Charging of Exorbitant Interest Act, 2012. True that these defence documents are bearing the dates after the institution of the complaint. But the transactions between the parties appear to be the same. At any rate, since the complainant herein has been indicted for such offences in a Police charge sheeted case, the trial court cannot be found fault with for taking the view that this probabilises the case of the accused that the complainant would have taken a blank signed cheque as security from him, which has been misused. Further that at any rate, the facts in the transactions between the parties would not have happened in the manner as alleged by the complainant, etc. Crl.L.P.282/17 - : 7 :- (E) The trial court also found that the ink used in the handwritten entries in the cheque is different and distinct from the ink used for appending the signature in the dishonoured cheque. This also constrained the trial court to take the view that based on preponderance of probability, the suggested defence case may be more probable than the version projected by the complainant. It is in the light of all these considered the factual findings that the trial court has found that the accused is entitled for the benefit of acquittal. Merely because another view is plausible, is no ground to interfere with the considered verdict of acquittal. 6. In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in (2012) 5 SCC 789 = 2012(4) Supreme 72, the Apex Court has held as follows:- “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.” Further, in the case Pudhu Raja and another Vs. State reported in (2012) 11 SCC 196 = (2013) 1 SCC (Cri) 430 , the Apex Court has held that, “ _The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence_ ”. Crl.L.P.282/17 - : 8 :- 7. On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion that even if appeal is entertained, there is very little scope of any interference with the conclusive findings of the court below, which led to the acquittal in the impugned judgment. Accordingly, this Court is constrained to hold that the Leave Petition is bereft of any merit and accordingly, the same is dismissed. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge