Dhanesh P. v. Mehroob N. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 6TH DAY OF OCTOBER 2017/14TH ASWINA, 1939** **Crl.L.P..No. 394 of 2017 () ----------------------------** **STC 1513/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MATTANNUR.** **.........** **PETITIONER/COMPLAINANT: -----------------------** **DHANESH P., S/O.NARAYANAN, 29 YEARS, THAIKANDI HOUSE, KEEZHURKUNNU, KEEZHUR, P.O.IRITTY.** ## **BY ADV. SRI.CIBI THOMAS** ## **RESPONDENTS/ACCUSED AND STATE:** **------------------------------** **1. MEHROOB. N., S/O.ABU, AGED 45 YEARS, NAKARAPETTI HOUSE, VAYATHUR AMSOM DESOM, ULLIKKAL P.O., KANNUR DISTRICT-670705.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 06-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **ALEXANDER THOMAS, J.** ## **----------------------------** ## **Crl.L.P.No. 394 of 2017** **----------------------------** Dated this the 6[th] day of October, 2017 ## **ORDER** The petitioner seeks special leave of this Court under Section 378(4) of the Code of Criminal Procedure Code, 1973 to file Criminal Appeal so as to impugne the judgment dated 27.07.2017 rendered by the trial court concerned. (Judicial First Class Magistrate Court, Mattanur), whereby the accused in S.T.C.No.1513 of 2013 has been acquitted for the offence punishable under Section 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.1513 of 2013. 2. Heard Sri.Cibi Thomas, learned counsel appearing for the petitioner (complainant) and Sri.Jestin Mathew, learned Public Prosecutor appearing for R2, State. 3. The brief of the case of the complaint is to the effect that for discharging a liability of Rs.95,000/- owed by the accused to the complainant, the revision petitioner (accused) had executed Ext.P1 cheque dated 5.2.2013 for Rs.95,000/- drawn from his account and payable in favour of the complainant. The cheque when presented Crl.L.P.No. 394 of 2017 2 resulted in dishonour as per Ext.P2 bank memo dated 9.04.2013 and consequent to which the complainant had issued Ext.P3 statutory demand notice dated 15.04.2013 calling upon the accused to pay off the amount covered by the said cheque within a period of 15 days from the date of receipt of the said notice. Though the said notice has been duly served on the accused as per Exts P4 and P5, he had not responded to the said notice by issuing any reply thereto. Thereupon the complainant, after following the requisite formalities, has issued the above complaint which resulted in the trial. During the trial the complainant was examined as PW1 and has marked Exts. P1 to P5 documents. The accused has not adduced any oral or documentary evidence. The basic defence set up by the accused during the cross examination of PW1 is to the effect that a blank signed cheque given by the accused to the complainant in some other transaction has been misused in the present complaint etc. 4. The trial court found that there is serious suppression of material facts in the complaint and therefore the accused is entitled for the benefit of acquittal. In the light of the legal principle laid down by this Court in **K.K.Divakaran v. State of Kerala** reported in **2016(4) KLT 233,** a mere perusal of the complaint would Crl.L.P.No. 394 of 2017 3 reveal that the complainant has not given any details of the transactions which led to the liability and as to the date on which the cheque was handed over to the complainant etc. Whereas in evidence that the complainant would have a case that a vehicle belonging to the accused was given temporarily to the complainant for his use and for security in that transaction, the complainant had given Rs.95,000/- to the accused and later when the complainant had returned the car to the accused the accused had not refunded the above said security amount of Rs.95,000/-. Later on demand, the accused in discharge of the said liability has issued the instant cheque etc. The said case has never been even remotely projected in the complaint. This Court in the decision in **K.K.Divakaran's** case (supra) has held that in a criminal case, the accused should be informed and appraised before the trial not only of the nature of the offence but also the material particulars of the transaction which are necessary for him to effectively meet and rebut the case against him. That very often unscrupulous complainants refuse to do so with the ulterior objective of denying the accused an opportunity of fair trial, which is a constitutional fundamental right guaranteed under Article 21 of the Constitution of India. An accused in a complaint filed under Section 142 of the NI Act is also entitled to Crl.L.P.No. 394 of 2017 4 know before the trial the material particulars of the accusations and allegations raised against him. Suppression of these material particulars in the complaint alone is sufficient to order his acquittal. It is profitable to refer to paras 18 and 20 of the above said decision of this Court reported 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._ _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 the above said aspects, the trial court cannot be found fault with for having taken the view of that the accused is entitled for the benefit of acquittal in view of the serious suppression of material particulars in the complaint. Crl.L.P.No. 394 of 2017 5 5. Further the trial court found that the complainant has admitted during the cross examination that he owes a total liability of Rs.7 lakhs to various persons and litigations in that regard are pending against him. To a specific question during cross examination for the reason for not presenting the cheque immediately, PW1(complainant) has answered that he was not in need of money at that time. The trial court has found that the said explanation of the complainant for not presenting the cheque immediately, is nor a believable version as the complainant is having a liability of Rs.7 lakhs. Therefore the trial court cannot be blamed for having taken a view that the very version given by the complainant is not believable and credible. 6. Still further, the trial court has also found that when the complainant was owing liability of more than Rs.7 lakhs to various persons he was bound to prove the source of funds for making the payment of Rs.95,000/- to the accused during the relevant time of the transaction in question. No credible and material evidence has been adduced by the complainant to show that he had requisite source of funds at the relevant time for making a payment of Rs.95,000/- to the accused etc. The Apex Court in the decision in **John K Abraham v. Simon C.Abraham** reported in ( **2014) 2** Crl.L.P.No. 394 of 2017 6 **SCC 236** has held that in order to draw the benefit of the statutory presumption under Section 118(a) and Sec.139 of the Negotiable Instruments Act, the burden is quite heavy upon the complainant to prove that he had the requisite funds for advancing the money to the accused at the time of the borrowal transaction in question. The said view of the Apex Court has been reiterated by the Apex Court in the decisions as in **K.Subrahmanian v. K.Damodara Naidu** reported in **(2015) 1 SCC 99, K.Prakasan v. T.K.Surendran** reported in **(2008) 1 SCC 258** . In the light of these aspects, the trial court cannot be found fault with for having taken the view that the complainant is not entitled to draw the benefit of the statutory presumptions under Sec.118(a) and Sec.139 of the Negotiable Instruments Act, as he had miserably failed to prove the source of funds at the relevant time. 7. Still further, the trial court has found that the complainant during evidence has developed a new case that the accused has filled up and signed the cheque in his presence at his shop and that the said transaction was witnessed by his staff named one Smt.Silvy Jose etc. Moreover the complainant has not examined the said person as a witness to prove the execution. 8. In the light of all these aspects the trial court found that ## Crl.L.P.No. 394 of 2017 7 the evidence adduced by the complainant in the instant case cannot be a safe and reliable basis for convicting the accused. Therefore the accused is entitled for the benefit of acquittal. The said findings and facts made by the trial court cannot be said to be vitiated by gross perversity or illegality. Merely because another view is plausible is not a ground for this Court to upturn the considered verdict of acquittal rendered by the trial court. 9. 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.No. 394 of 2017 8 In the facts and circumstances of the case, this Court is of the opinion that even if the appeal is entertained, there is not much scope to reverse the judgment of acquittal rendered by the trial court. Accordingly, it is ordered that as the petition is devoid of merit, the same is accordingly dismissed. Sd/- **ALEXANDER THOMAS JUDGE** //True Copy\\ P.A to Judge IAP