Dakshayani A.C. v. Jubairiya A.K. & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939** ## **Crl.L.P..No. 334 of 2017 ()** **---------------------------ST. NO.1017/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR. ........** **PETITIONER/COMPLAINANT: -------------------------------------------** **DAKSHAYANI A.C., D/O RAGHAVAN, AGED 65 YEARS, KODAKKANDI HOUSE, MUTTANNUR, PATTANNUR P.O.** ## **BY ADV. SRI.PHIJO PRADEESH PHILIP.** ## **RESPONDENTS/ACCUSED & STATE:** **-------------------------------------------------------** **1. JUBAIRIYA A.K., W/O VAHID, AGED 35 YEARS, A.K. HOUSEL, AIKKULAM, KAVUMTHAZHE, KOODALI P.O., PIN- 670 592.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 15-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## ALEXANDER THOMAS, J. ================== Crl.L.P.No.334 of 2017 ================== Dated this the 15[th] day of September, 2017. ## J U D G M E N T The petitioner is seeking Special Leave of this Court under Section 378(4) of the Cr.P.C. for filing Crl.Appeal so as to impugn the judgment rendered on 27.07.2017 by the trial court concerned (Judicial First Class Magistrate Court, Mattanur), whereby, the accused in S.T.C.No.1017/2013 has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. The petitioner herein is the complainant and the first respondent herein is the accused in the above said S.T.C.No.1017/2013. 2. Heard Sri.Phijo Pradeesh Philip, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. Ext.P1 dishonoured cheque dated 01.12.2012 is for Rs.5 lakhs. The trial court, by the impugned judgment, has conclusively held that the accused is entitled for the benefit of acquittal in view of the following reasons: Crl.L.P.No.334 of 2017 - : 2 :- (A) The complainant has taken the specific contention that she had sufficient source of income at the time of lending of the amount of Rs.5 lakhs to the accused in as much as Rs.3,60,000/- was obtained by her as a claim in a motor accident case relating to the death of her brother and that an additional amount of Rs.1,40,000/- was in her possession. But, the court below has found that except making these oral assertions, the complainant has not produced any convincing materials whatsoever to prove her case that she had received compensation amount of Rs.3,60,000/- on account of her brother's death in a motor vehicle accident and further that she had Rs.1,40,000/- in her possession at the relevant time for the borrowal transaction. If as a matter of fact, the complainant had received Rs.3,60,000/as compensation in the motor accident claim, certainly, there would have been documents to prove that aspect that she had excess of funds. So also, the documents like bank records and other related aspects could have easily proved if in fact, she had surplus funds of Rs.1,40,000/- at the time of the borrowal transaction. The trial court found that the complainant is working as a post woman in the Koodali Post Office and her monthly salary is hardly about Rs.10,300/- and that in the ordinary state of affairs, it will be very difficult for her to raise Crl.L.P.No.334 of 2017 - : 3 :- such a huge amount of Rs.5 lakhs as personal loan to the accused and that she has not discharged her burden to prove her source of funds etc. Since none of these material aspects were proved, the trial court has taken a view that the complainant has miserably failed to prove her case that the source of funds at the relevant time to advance such a huge amount of Rs.5 lakhs to the accused at the relevant time. The Apex Court in the judgment in John K.Abraham v. Simon C. Abraham reported in (2014) 2 SCC 236 has categorically held that in order to draw the benefit of the statutory presumption under Sec.118(a) and Sec.139 of the Negotiable Instruments Act, the burden is quite heavy upon the complainant to prove that he had access of funds for having advanced the money to the accused at the relevant time of the borrowal transaction in question. The said view of the Apex Court has been followed in decisions as in K.Subramani v. K.Damodara Naidu reported in (2015) 1 SCC 99, K.Prakashan Vs. P.K. Surenderan reported in (2008) 1 SCC 258, etc. In the light of these aspects, the trial court cannot be found fault for having taken the considered view that the complainant in the instant case is not entitled to draw the benefit of the statutory presumption under Sec. 118(a) and Sec.139 of the Negotiable Instruments Act. Crl.L.P.No.334 of 2017 - : 4 :- (B) The trial court has found that except by badly stating in the complaint and demand notice and the proof affidavit that the accused owed an amount of Rs.5 lakhs to the complainant and in discharge of which, the accused had issued Ext.P1 cheque for Rs.5 lakhs etc., none of the crucial and relevant aspects relating to the transactions which led to the liability and the aspects relating to the execution and issuance of cheque have been stated in the complaint or in the statutory demand notice and even in the proof affidavit. This Court in the decision in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233, has held that in a criminal case the accused should be informed before the trial not only of the nature of the offence but also the regarding the material particulars of the transaction which are necessary for him to effectively meet the case against him and that very often, unscrupulous complainants refuse to do so with the ulterior objective of denying the accused a fair trial which is guaranteed under Article 21 of the Constitution of India. An accused even in a complaint filed under Section 142 of the N.I. Act is also legally entitled to know before the trial the particulars of the accusation and allegations against him and suppression of such crucial material particulars in the complaint alone is sufficient to order acquittal. It is slightly profitable to refer to Crl.L.P.No.334 of 2017 - : 5 :- ## paras 18 and 20 of the above said decision of this Court in ## K.K.Divakaran's case (supra) which reads as follows: “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 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. ## xxxx xxxx xxxx 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.” In the light of these aspects, the trial court has taken into the considered view that the suppression of these material particulars in the complaint is sufficient for the acquittal of the accused and the trial court cannot be found fault with for having taken such a view in the light of the above such factual aspects. (C) The complainant has taken the definite case that the advancement of the money by the complainant to the accused was witnessed by her daughter as well as by one Sri.Ujith who is Crl.L.P.No.334 of 2017 - : 6 :- stated to be a friend of the complainant's son. However, the complainant has not taken any steps to examine any of these persons for allegedly witness the borrowal transaction. (D) The complainant has taken up a definite case that the moneys in question were advanced by the complainant to the accused in the house of the complainant and that the husband of the accused was also present at that time. The accused has marked Ext.D2 document which is the Exit or Entry Certificate issued by the Ministry of Interior Naturalization and Residency Administration of Dubai Government, which shows that the husband of the accused was not present in India at that time. Faced with that situation, the complainant at the time of cross examination, resiled from the earlier stand and finally admitted that the husband of the accused was not present at the borrowal transaction and that her earlier deposition in that regard is a mistake etc. (E) Apart from the suppression of material particulars regarding the nature of the transaction and the date of the transaction and date of issuance of the cheque etc., it is to be noted that accused had sent a reply notice to the statutory demand notice sent by the complainant and at the time of filing of the complaint, the complainant was well aware about the Crl.L.P.No.334 of 2017 - : 7 :- defence put forth by the accused in the reply notice. However, the trial court was found that the complainant has suppressed about the issuance of the reply notice by the accused and the complainant does not disclose any of the material particulars pertaining to the transaction to show as to how the defence version set forth by the accused in the reply notice is not correct etc. The said suppression has also been seriously taken note of by the trial court. 4. It is in the light of all these aspects, the trial court has found that the version of the complainant does not disclose any strong element of credibility or believability and that it will be extremely unsafe to convict the accused on the basis of such feeble and weak evidence adduced by the complainant. Accordingly, the trial court has found that the accused is entitled for the benefit of acquittal. The said factual findings made by the trial court cannot be said to be vitiated by perversity or illegality. Merely because another view is plausible, it is not a ground to interfere with the findings of acquittal. 5. 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 Crl.L.P.No.334 of 2017 - : 8 :- 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”. In the light of these aspects, this Court is of the considered view 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. Sd/- ## ALEXANDER THOMAS, JUDGE Bb/19/9/2017 _[True copy]_ _P.A to Judge_