Jenson Mathew v. State of Kerala & Robin S/o C.T. Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 1ST DAY OF DECEMBER 2017/10TH AGRAHAYANA, 1939** **Crl.Rev.Pet.No. 1336 of 2002 ( )** ## **---------------------------------** **CRL.A NO. 121/1998 OF ADDITIONAL SESSIONS COURT (FAST TRACK COURT-1), PALAKKAD** **ST NO.1485/1995 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI** ## **REVISION PETITIONER/RESPONDENT/COMPLAINANT:** **-----------------------------------------------------------------------------** **1. JENSON MATHEW, S/O. C.V. MATHUKUTTY,** - **CHALISSERY AMSOM DESOM, OTTAPALAM TALUK.** ## **BY ADV. SRI.BECHU KURIAN THOMAS** ## **RESPONDENT AND STATE/APPELLANT/ACCUSED:** **-----------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. ROBIN S/O. C.T.VARGHESE, PARTNER, G.B.TRADERS, 51/B 1ST FLOOR, SINDHI SOCIETY, CHEMBUR,BOMBAY.** **R1 BY PUBLIC PROSECUTOR SAIGI JACOB PALATTY R2 BY ADVS. SRI.P.MARTIN JOSE** **SRI.THOMAS P.KURUVILLA SRI.P.PRIJITH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PBS** ## **ALEXANDER THOMAS, J.** ================== Crl.R.P.No. 1336 of 2002 ================== Dated this the 1[st] day of December, 2017 **O R D E R** The revision petitioner herein is the complainant S.T.C.No. 1485/1995 on the file of the Judicial First Class Magistrate's Court, Pattambi, in which, the 2[nd] respondent herein has been arrayed as accused for offence punishable under Sec.138 of the Negotiable Instruments Act. Ext.P-1 dishonoured cheque dated 20.2.1995 is for Rs.2,70,000/-. The trial court as per the impugned judgment rendered on 31.8.1998 had convicted the accused for the abovesaid offence and has sentenced him to undergo simple imprisonment for 3 months and to pay fine of Rs. 2,70,000/-, and in default thereof, to suffer simple imprisonment for 3 months. Aggrieved by the said conviction and sentence, the accused had preferred Crl.Appeal No. 121/1998 before the appellate Sessions court concerned [Court of Addl. Sessions Judge (Fast Tract Court-I), Palakkad]. The appellate court as per the impugned judgment rendered on 30.7.2002 found that Ext.P-1 dishonoured cheque does not bear any account number and therefore had remanded the matter to the trial court for consideration of the other rival contentions raised by the parties. Aggrieved by the said appellate court judgment, which ordered the remand of the matter, the complainant has filed the instant revision petition by taking recourse to the remedy conferred under Sec.397 read with Sec.401 of the Cr.P.C., contending that Crl.R.P.1336/02 - : 2 :- the factual basis for the remand order is illegal and perverse and that the impugned judgment of conviction and sentence imposed by the trial court should be restored. 2. Though the 2[nd] respondent had earlier entered appearance through counsel in the present revision, his counsel was not present in the court at the time of final hearing of the revision petition and this Court had considered the merits of the matter after hearing the counsel for the petitioner (complainant) and had disposed of the revision petition as per the impugned order dated 5.12.2012. As per the said revisional order rendered by this Court on 5.12.2012 it was found that the abovesaid factual finding made by the appellate court that the dishonoured did not contain any account number is absolutely perverse and wrong and that the other findings made by the trial court regarding the conviction of the petitioner are also legal and proper and accordingly set aside the impugned judgment of the appellate court and had restored the order of the trial court, with certain modifications that the fine amount payable shall be disbursed to the complainant as compensation in terms of Sec.357(1)(b) of the Cr.P.C., etc. 3. The 2[nd] respondent (accused) thereafter filed Crl.M.A. No.373/ 2017 in Crl.R.P.No. 1336/2002 pointing out that he had engaged a counsel of his choice for defending in the present revision petition and that he came to know the outcome of the revision petition only when the Police authorities had taken steps to execute the sentence against him while he was in Bombay and later, his enquiries revealed that his counsel Crl.R.P.1336/02 - : 3 :- (Sri.V.G.Sankaran, Advocate) had temporarily suspended his enrolment with the Bar Council of Kerala on 15.7.2010 and that he was deprived of an opportunity to defend himself before this Court in the abovesaid revision petition and that the said impugned order dated 5.12.2012 should be recalled in the light of the legal principles laid down by the Apex Court in the decisions as in _**Vishnu Agarwal v. State of Uttar Pradesh & Anr.**_ reported in (2011) 14 SCC 813, _**State of Punjab v. Davinder Pal Singh Bhullar & Ors.**_ reported in (2011) 14 SCC 770, _**Asit Kumar Kar v. State of West Bengal & Ors.**_ reported in (2009) 2 SCC 703, etc. and that of the decision of this Court in _**Pushpangathan v. State of Kerala**_ , reported in 2015 (3) KLT 505. 4. This Court after hearing both sides passed a detailed order on 19.10.2017 on the abovesaid Crl.M.A.No.373/2017 and found that the averments of the accused that he had engaged a counsel of his choice and that the said counsel had suspended his enrolment with the Bar Council and that no communication in that regard was received by the accused and that therefore he was deprived of a reasonable opportunity to defend himself before this Court in the revisional proceedings, etc. are correct and in the light of the abovesaid rulings, this Court had recalled the impugned revisional order dated 5.12.2012 passed by this Court in the revision petition and thus restored the revision petition on the file of this Court and had ordered that the said revision petition will he beard on merits afresh, etc. It is in this background that the abovesaid revision Crl.R.P.1336/02 - : 4 :- petition has come up for hearing before this Court today. 5. Heard Sri.S.Sreedev, learned counsel appearing for the revision petitioner (complainant), Sri.P.Martin Jose, learned counsel appearing for R-2 (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 6. After hearing both sides, this Court is of the considered opinion that the finding made by the appellate court in the impugned appellate judgment dated 30.7.2002 that Ext.P-1 dishonoured cheque does not contain an account number, etc. is factually wrong. On a perusal of Ext.P-1 dishonoured cheque dated 20.2.1995 for Rs. 2,70,000/- it is seen that the cheque leaf is bearing No.464219 and it clearly contains an account number as 522. Though the cheque leaf number (No.464219) is printed in the cheque leaf, the said account No.522 is not printed, but the said account number has been affixed on the basis of a rubber seal and it bears number 522. The said cheque is seen drawn from the account of Catholic Syrian Bank Ltd., Thrissur Main Branch. As to what are the reasons for the nonprinting of the account number in Ext.P-1 cheque are not disclosed in evidence, primarily because the accused has not even put a single question either to the complainant (P.W-1) or to the bank officer of the Catholic Syrian Bank, who was examined as P.W-2, as to whether or not the said cheque contains an account number, etc. Not even a suggestion has been put froward by the accused while confronting either P.W-1 or P.W-2 that the cheque does not contain a account number, etc. Since the witnesses of Crl.R.P.1336/02 - : 5 :- the complainant were not alerted it is only to be treated that the accused did not have any substantial objection regarding the aspect that the cheque leaf contains the account number. Such a contention was never raised by the accused either before the trial court or before the appellate court. This Court is saying so, because the said contention is fully dependent on the basis of the factual position and therefore if such a factual objection is to be seriously considered by the criminal courts, then certainly the accused should have pin pointedly confronted the complainant's witnesses about that factual issue and if he had any further disputes regarding that, he could have let in independent defence evidence to buttress this contention if any, that the cheque is not drawn from an account of the Catholic Syrian Bank Ltd., etc. Since such a course of action was not taken, it was not permissible for the appellate court to have unilaterally taken up such an issue and then come to the conclusion that the cheque does not contain an account number. Whereas a mere perusal of Ext.P-1 cheque leaf would reveal that though the cheque leaf number is written therein, the account number has been affixed on the basis of a rubber seal and it bears number 522. The said number could have been only the account number pertaining to the account from which the cheque has been drawn. In the light of these aspects, it is only to be held that the abovesaid factual finding made by the appellate court is clearly wrong and perverse and, therefore, the said factual findings made by the appellate court will stand set aside. 7. Sri.P.Martin Jose, learned counsel appearing for the 2[nd] Crl.R.P.1336/02 - : 6 :- respondent accused would pin pointedly raise the following other contentions regarding the merits of the controversy between the parties: _**(A)** It is urged that the case projected in the complaint is that the transaction, which led to the liability, was between the original complainant and the accused. The complaint is said to have been filed on 18.7.1995. Later, the original complainant died on 8.1.1996 during the pendency of the complaint. Thereafter, the present revision petitioner, who is the son and legal representative of the deceased original complainant, was permitted to prosecute the complaint for and on behalf of the original complainant. That the revision petition petitioner was examined as P.W-1 (additional complainant) and no evidence has been tendered by P.W-1 that he has direct knowledge about the transactions between his deceased father and the accused, which led to the liability in question and that he has witnessed the said transactions and that he has also witnessed the alleged execution and handing over of the cheque, etc. That the only evidence tendered by P.W-1 in that regard is that the handing over of the cheque by the accused had taken place in the residence of original complainant. That since no evidence has been tendered by P.W-1 that he had such direct knowledge about the transactions, which led to the liability and also about the aspects relating to the alleged execution and issuance of the cheque, the accused is entitled to be acquitted on that sole ground alone._ _**(B)** Further it is urged that there are no averments in the complaint showing the details of the alleged transactions between the original complainant and the accused, which led to the issuance of the cheque, etc. The details as to when the alleged sale of areca nut had taken place and that when_ Crl.R.P.1336/02 - : 7 :- _the cheque was allegedly handed over by the accused to the complainant, etc. are conspicuously silent in the complaint, etc. In this regard, the accused would place reliance on the decision of this Court in_ _**K.K.Divakaran v. State of Kerala** , reported in 2016 (4) KLT 233, wherein 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 to 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 (see KLT report):_ _“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._ _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_ Crl.R.P.1336/02 - : 8 :- _him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal.”_ _On the basis of this aspects, it is urged by the learned counsel for the accused that the accused is entitled to be acquitted in view of the abovesaid suppression of materials facts in the complaint, in the light of the abovesaid legal principle laid down by this Court in_ _**K.K.Divakaran's case** supra._ _**(C)** . That though the cause-title of the complaint describes the accused as the Partner of M/s.C.B.Traders, there are no averments in the complaint that the accused was a partner of the firm in question, who was responsible for and in charge of the affairs of the business of the said partnership firm etc, as envisaged in Sec.141 of the N.I. Act. Further that P.W-1 has deposed in evidence that the cheque has been issued from an account maintained by the partnership firm and that Ext.P-1 dishonoured cheque dated 20.2.1995 itself would show that the cheque has been issued by C.B.Traders, through its partner. The name of the partner is not shown in the cheque and seal only discloses as follows:_ ## _**“For C.B.TRADERS,**_ ## _**Partner”**_ _That though the cheque has been issued from the account of the partnership firm, the partnership firm has not been arrayed as accused. Further that even according to the complainant, the statutory demand notice under Sec.138 proviso (b) was issued only to the accused and not to the partnership firm, from whose account the cheque has been allegedly issued. Accordingly, it is argued that the complaint itself is not maintainable in view of the legal principles laid down by the 3-Judge Bench of the Apex Court in_ _**Aneeta Hada v. Godfather Travels & Tours Pvt. Ltd.** reported in (2012) 5 SCC 661. Further, it has also_ Crl.R.P.1336/02 - : 9 :- _been laid down by the Apex Court in the decisions as in_ _**Kirshna Texport & Capital Markets Ltd. v. Ila A. Agrawal,** reported in (2015) 8 SCC 28, that statutory demand notice should be mandatorily issued to the partnership firm/ company, as the case may be, where the drawer the of the cheque is body corporate like partnership firm, company, etc._ _**(D)** It is also urged that since there are no averments in the complaint that the accused was a partner, who was in charge of and responsible for the affairs of the partnership firm, from whose account the cheque has been drawn, the complaint itself is not maintainable in view of the legal principles laid down by the Apex Court in_ _**S.M.S. Pharmaceuticals v. Neeta Bhalla & Anr** . reported in (2005) 8 SCC 89, etc. Further, it is urged that the accused has not signed Ext.P-1 cheque and that a bare comparison of the signature of the drawer in Ext.P-1 cheque with the admitted signatures of the accused in his Ext.D-1 series of passports, etc. would clearly reveal that the signature in the cheque has wide variance with the admitted signature of the accused, etc._ 8. Per contra, Sri.S.Sreedev, learned counsel appearing for the revision petitioner (complaint) would urge that none of these contentions, except the last one, has been raised either before the appellate court or the trial court. Further that the trial court has found that the evidence tendered by P.W-1 is credible and believable and that the accused has not disclosed a probable and believable defence version, etc. That the non-disclosure of some of the details in the complaint has not caused any prejudice to the accused, etc. It is also contended by the petitioner that all these contentions of the accused cannot be considered on merits in this revision, Crl.R.P.1336/02 - : 10 :- as it is a proceeding initiated by the complainant and not by the accused. 9. Sri.S.Sreedev, learned counsel appearing for the petitioner (complainant) would also submit that, apart from the substantive sentence, fine of Rs.2,70,000/- was directed to be paid by the accused to the complainant. Sri.P.Martin Jose, learned counsel appearing for the respondent (accused) would submit that at the time of the commission of the offence in this case, the learned Magistrate (a Judicial First Class Magistrate) did not have jurisdiction to impose a fine greater than Rs.5,000/- in view of the limitations placed in Sec.26 of the Cr.P.C. and that the limitation in that regard was later amended only prospectively from 2.2.2003, as per the amended provisions of Sec. 138 of the N.I. Act. 10. Per contra, Sri.S.Sreedev, the learned counsel appearing for the petitioner (complainant) would urge that restriction in that regard was got over only by an amended made to Sec.138 of the N.I. Act and that too, prospectively with effect from 6.2.2003, etc. Sri.S.Sreedev, learned counsel appearing for the petitioner would submit that such technical hurdles could be got over by imposing substantive sentence and then directing payment of compensation under Sec.357(3) of the Cr.P.C., etc. in case the compensation amount that is sought to be granted at the relevant time is more than Rs.5,000/-, etc. These issues need not be considered by this Court in this proceedings and the rival contentions in that regard may also be placed before the appellate court in remit for decision and this aspect needs to be considered only in case the appellate court confirms the Crl.R.P.1336/02 - : 11 :- conviction. 11. On a consideration of the rival pleas in this regard, this Court of the view that the abovesaid contentions require serious re-look at hands of the appellate court. In this view of the matter, the impugned appellate judgment dated 30.7.2002 rendered in Crl.Appeal No. 121/1998 will stand set aside. Resultantly, it is ordered that the Crl.Appeal No. 121/1998 will stand restored to the file of the appellate court concerned. 12. It will be open to the parties to raise all the respective contentions before the appellate court in aid of their case, except the abovesaid contention of the accused regarding the alleged lack of account number in the cheque, which has now been found conclusively against the accused. Both the parties will be at liberty to submit their argument notes, which shall form part of the records. Since the dishonoured cheque has been issued as early as in 1995, the appellate court will endeavour to take all reasonable measures possible under the circumstances to ensure expeditious disposal of the appeal without much delay, preferably within a period of 2 months from the date of production of a certified copy of this order. The parties will produce certified copies of this order before the appellate court for necessary information and action. 13. Sri.Martin Jose, learned counsel appearing for the 2[nd] respondent accused would point out that the accused should be given some breathing time to engage a counsel of his choice before the appellate court. The counsel for the complainant and the counsel for the accused shall Crl.R.P.1336/02 - : 12 :- appear before the appellate Sessions Court at 11 a.m. on 6.1.2018, on which day, the appellate court shall fix up a date, which is convenient to both sides and then proceed with the consideration and disposal of the appeal. 14. Further Sri.P.Martin Jose, learned counsel appearing for the respondent (accused ) submits that earlier, the respondent (accused) had deposited amount of Rs.75,000/- before the this Court in relation to this case at the time of the appellate consideration and later in compliance with the directions of this Court, an amount of Rs.2,45,000/- was also deposited by the petitioner in this case on 25.9.2017 and it is pointed out that the submission made on behalf of the accused, which is recorded in this Court's order dated 30.8.2017 that he had deposited initially only Rs. 25,000/- was factually not correct and the actual amount initially deposited in that regard is Rs. 75,000/-. The Registry will forward the LCR to the appellate court along with a copy of this order. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge Crl.R.P.1336/02 - : 13 :-