Dhanakodi Chits Pvt. Ltd. v. Sebin Fathima and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939** **Crl.L.P..No. 133 of 2017 () ----------------------------** **ST 1514/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - 1, SULTHANBATHERY.** **..........** **PETITIONER/COMPLAINANT: -----------------------** **DHANAKODI CHITS PVT. LTD., BEENACHI POST, DOTTAPPANKULAM, SULTHAN BATHERY, WAYANAD DT. REPRESENTED BY MANAGING DIRECTOR, M.M. YOHANNAN.** **BY ADVS.SRI.LINDONS C.DAVIS SMT.E.U.DHANYA** **RESPONDENTS/ACCUSED & STATE:** **----------------------------** **1. SEBIN FATHIMA, AGED 26 YEARS, W/O.ABDUL MAJEED, THURAYAN PULAKKAL(H), PERIMBALAM PO, ANAKKAYAM, MALAPPURAM.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 24-05-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ALEXANDER THOMAS, J. ----------------------------- Crl.L.P.No.133 Of 2017 --------------------------------- Dated this the 24th day of May, 2017. ## O R D E R This is an application seeking leave of this Court to institute Criminal Appeal so as to impugn the judgment dated 28.12.2016 rendered by the Judicial First Class Magistrate Court-I, Sulthan Bathery, whereby the accused therein (1st respondent herein) has been acquitted. The 1st respondent herein is the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No.1514/2015 on the file of the Judicial First Class Magistrate Court-I, Sulthan Bathery, instituted on the basis of a complaint filed by the petitioner herein. 2. The gist of the allegations in the complaint is that the complainant is a Private Limited Company registered under the Indian Companies Act and its main business is in the field of chits. That one Sri.Abdul Majeed was the subscriber to a chit for an amount of Rs.5 lakhs and the accused has stood as a guarantor to the said subscriber in the auction of that chit. Subsequently, the said subscriber Abdul Majeed ::2:: Crl.L.P.No.133 Of 2017 defaulted in repaying the chit amounts and after repeated demands, the subscriber Abdul Majeed has not turned to settle the due amount of Rs.91,534/- and when the complainant had demanded the accused to clear the amounts, the accused as the guarantor to the subscriber had executed and signed the instant cheque dated 3.6.2015 for an amount of Rs.91,534/- and the said cheque when presented was dishonoured on the ground of insufficiency of funds. After complying with requisite statutory formalities in that regard, the instant complaint has been filed before the jurisdictional Magistrate concerned. 3. PW-1 was examined and Exts.P-1 to P-11 were marked on the side of the prosecution and Exts.D-1 to D-3 were marked on the side of the defence. 4. The trial court found that PW-1, who is the recovery manager of the complainant Company, had never worked in the Manjeri Branch of the said company in which the chit transaction has taken place and accordingly held that PW-1 is not the best person, who could adduce evidence with regard to the transaction and the best evidence should come from the Manager of the Manjeri Branch of the company. The version of PW-1 was that the instant Ext.P-1 cheque was signed before him. The trial court came to the consideration conclusion ::3:: Crl.L.P.No.133 Of 2017 that the said version projected by PW-1 is bereft of any credibility and believability inasmuch as PW-1 himself has admitted that he has never worked in the Manjeri Branch of the company and that it does not stand to common sense that the accused would have gone to the Head Office of the complainant company so as to execute and sign the cheque in the presence of PW-1, etc. Therefore, the trial court for these valid reasons has found that the very version regarding the execution of the cheque is bereft of any credibility and has accordingly disbelieved PW-1 in that crucial aspect. In order to justify the divergence in the handwriting in the cheque, PW-1 has deposed that the written entries in Ext.P-1 cheque was filed by the staff of the Head Office after getting the consent of the accused. The trial court found that the said version given by PW-1 is not believable since PW-1 has no case that the accused is an illiterate lady. Therefore, the trial court has also disbelieved the version of PW-1 on that crucial aspect as well. 5. As far as the authenticity of Ext.P-11 agreement dated 21.10.2011, the stamp paper on which the said agreement was executed, is seen issued on 7.3.2011 and as the agreement has been executed subsequently, on 21.10.2011, there is strong probability in the suggestion of the defence that blank signed paper of the accused has ::4:: Crl.L.P.No.133 Of 2017 been misused by the complainant company and that Ext.P-11 is thus bereft of any reliability. The trial court found that right from Ext.P-7 reply notice, the accused has been taking a consistent stand that the blank signed cheque and the blank signed stamp paper given by the petitioner at the time of initial transaction have been misused by the complainant company, etc. More crucially, the trial court has also found that Ext.P-4 statutory demand notice does not disclose about the nature of the transaction, date of the transaction, rate of interest, etc., and that Ext.P-4 simply states that the cheque was issued for discharging the liability of Mr.Abdul Majeed and the said cheque was dishonoured, etc. The complaint is also silent about the date of transaction and the date on which the cheque was issued by the accused. The trial court held that the suppression of material facts both in notice and in the complaint proves much fatal to the case of the prosecution and that the suppression of the material facts in the complaint itself is sufficient to order the acquittal of the accused. The trial court has placed reliance on the decision of this Court in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233 wherein this Court has held in paras 18 to 20 as follows: ::5:: Crl.L.P.No.133 Of 2017 “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. 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.1½ 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.” On an overall assessment of the factual circumstances and the reasonings adopted by the trial court, this Court is of the considered ::6:: Crl.L.P.No.133 Of 2017 view that the view rendered by the trial court is a reasonable one. At any rate, the said view cannot be branded as grossly perverse and unreasonable. Merely because another view is possible, it is not a ground to interfere with the findings of acquital. Reliance placed by the trial court on the basis of the legal principles laid down by this Court in the judgment in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233 = 2016 (4) KHC 901 is fully correct and proper. 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”. In the light of the legal principles laid down ::7:: Crl.L.P.No.133 Of 2017 by the Apex Court, this Court is of the view that even if the the appeal is entertained there is not much scope to overturn the judgment of acquittal rendered by the trial court. Accordingly, this Court is constrained to dismiss the leave petition and it is so ordered. ALEXANDER THOMAS, Judge. bkn/-