K. Abdul Rahiman v. C.K. Alavi and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942** ## **CRL.A.No.676 OF 2005** **AGAINST THE JUDGMENT IN CRA 291/2003 DATED 22-01-2005 OF ADDITIONAL SESSIONS COURT (ADHOC)III, MANJERI** **AGAINST THE UDGMENT IN ST 105/2000 DATED 11-08-2003 OF THE CHIEF JUDICIAL MAGISTRATE,MANJERI** ## **APPELLANT/RESPONDENT/COMPLAINANT:** ## **K.ABDU RAHIMAN** **S/O ALAVIKUTTY HAJI,R/O.HASNA MANZIL, KAVANOOR POST, AREACODE VIA, MALAPPURAM DISTRICT, KERALA STATE.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON** ## **RESPONDENTS/APPELLANT/ACCUSED AND STATE:** **1 C.K.ALAVI S/O HYDU,MULLAMPARA AMSOM, VAKKETHODI DESOM, P.O. MANJERI, MANJERI 676 121,, MALAPPURAM DISTRICT, KERALA STATE.** **2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, HIGHCOURT BUILDINGS, HIGH COURT ROAD,, ERNAKULAM, KOCHI 31.** **R1 BY ADV. SRI.M.V.THAMBAN** **R2 BY SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.APPEAL NO.676 OF 2005 2 ## **J U D G M E N T** ## **Dated this the 3rd day of June, 2020** **...** **This appeal is filed against the order dated 22.01.2005 in Crl.Appeal No.291 of 2003 on the file of the Additional Sessions Judge, Manjeri (Adhoc Fast Track Court-III by which the Sessions Judge set aside the judgment dated 11-08-2003 in S.T. No.105 of 2000 on the file of the Chief Judicial Magistrate Court, Manjeri. The above S.T. No.105 of 2000 is filed by the appellant herein to prosecute the first respondent herein for the offence punishable under Section 138 of the Negotiable Instrument Act. The trial court convicted the first respondent and the Appellate Court reversed the judgment of the trial court and** **hence this appeal is filed by the appellant/complainant (hereinafter, the parties are mentioned in accordance with their rank in the trial court).** CRL.APPEAL NO.676 OF 2005 3 **2. The complainant's case, in brief, is as follows:** **The accused issued cheque dated 18.10.1999 for Rs.2,30,000/- drawn on South Indian Bank, Manjeri Branch in favour of the complainant for discharging a legally enforceable debt to him. The complainant presented the cheque for collection in the Kavanur branch of South Malabar Gramin Bank. On 09.02.2000, the cheque was returned unpaid for the reason that the account was closed. The complainant received the cheque on 10.02.2000. He sent lawyer notice to the accused on 16.02.2000 demanding payment of the cheque amount. The accused received the notice on 19.02.2000. The accused failed to pay the amount. Hence, the complaint was filed.** **3. To substantiate the case, the complainant himself was examined as PW1. Exhibits P1 to P6 are his exhibits. DW1 and DW2 are the witnesses examined on the defence side. Exhibits D1 to D7 are the exhibits marked on the side of defence. On going through the evidences and documents,the trial** CRL.APPEAL NO.676 OF 2005 4 **court found that the accused had committed the offence under Section 138 of the Negotiable Instrument Act. The accused is sentenced to undergo simple imprisonment for six months and he is directed to pay a sum of Rs.2,30,000/- by way of compensation under Section 357(3) of the Code of Criminal Procedure (hereinafter Cr.PC) and in default of payment of compensation, he is further directed to undergo simple imprisonment for three months.** **4. Aggrieved by the conviction and sentence, the accused filed an appeal (Crl.Appeal No.291 of 2003) before the Sessions Court, Manjeri. The Additional Sessions Judge, Manjeri(Adhoc Fast Track Court-III) considered the appeal. The appellate court, after considering the evidences and documents, allowed the appeal and acquitted the accused under Section 255(1) Cr.PC. Aggrieved by the acquittal order of the appellate court, this Crl.Appeal is filed by the complainant.** **5. Heard the learned counsel for the** CRL.APPEAL NO.676 OF 2005 5 **appellant, the learned counsel for the first respondent and the learned Public Prosecutor.** **6. The learned counsel for the appellant submitted that, here is a case where the trial court after considering the entire evidence found that, the accused issued a cheque for a legally enforceable debt and the same was returned dishonoured and even after the statutory notice, the accused refused to pay the amount. Hence, the complainant contended that, there is nothing to interfere with the findings of the trial court. The counsel for the appellant submitted that, the findings of the appellate court are perverse.** **7. The learned counsel for the first respondent supported the judgment of the appellate court. He submitted that, after re-appreciating the entire evidence, the appellate court allowed the appeal and there is nothing to interfere with the judgment of the appellate court.** **8. After hearing both sides, the point to be decided is whether the acquittal order dated** CRL.APPEAL NO.676 OF 2005 6 **22.01.2005 of the learned Additional Sessions Judge, Manjeri(Adhoc Fast Track Court-III) is liable to be interfered with and whether there is any illegality or irregularity to upset the said judgment invoking the power under Section 378 of the Code of Criminal Procedure (hereinafter Cr.PC).** **9. The case of the complainant is that the accused issued a cheque dated 18.10.1999 to the complainant for Rs.2,30,000/-. The cheque was presented and the same was returned unpaid on the ground ‘Account closed’. Even after the statutory notice, the amount is not paid. According to the complainant, the accused issued the cheque to discharge the liability of Rs.2,30,000/-. PW1 has given evidence to that effect. According to him, an amount of Rs.2,30,000/- was borrowed by the accused on 10.01.1999 and he undertook to return back the amount within a period of one week. On 18.10.1999, the accused handed over Ext.P1 cheque to the complainant. Thereafter, the cheque was dishonured, when it is presented. The defence case is that on** CRL.APPEAL NO.676 OF 2005 7 **23.09.1998, the accused borrowed an amount of Rs.1,00,000/- from one Aboobacker and gave two cheques and two signed stamp paper and four white paper having his signature. Subsequently, on 29.10.1998, he paid Rs.1,10,300/- and closed the transaction with this Aboobacker and requested him to give back the signed documents given by him. But, even after the repeated requests, he has not furnished the documents which forced him to send Ext.D3 lawyer notice dated 08.01.1999. In Ext.D3, the accused requested the above mentioned Aboobacker to return the cheque which was given to him. The case of the complainant is that, the accused, issued the cheque on 18.10.1999. According to the counsel for the accused the same cannot be accepted. According to the counsel, the accused paid the entire amount due to Aboobacker and thereafter, Aboobacker misused the cheque.** **10. According to the complainant, the transaction was witnessed by the power of attorney holder of the complainant who is one Habeeb, S/o.** CRL.APPEAL NO.676 OF 2005 8 **Alavi. When the issuance of cheque itself is disputed, it is the duty of the prosecution to examine the alleged witness to the transaction Therefore, the non examination of Mr.Habeeb was taken as one of the ground by the appellate court to acquit the accused.** **11. The appellate court also doubted the transaction because the complainant deposed that, no records is obtained by him at the time of paying the amount of Rs.2,30,000/- to the accused. The appellate court observed that, in the normal circumstances, nobody will give such a huge amount without getting sufficient security.** **12. The accused also challenged the source of the complainant to lend such a huge amount. According to the appellate court, the complainant was not able to prove his source to lend such a huge amount. The appellate court observed that, since Ext.P1 is covering an amount of Rs.2,30,000/and PW1 not in a position to substantiate that, he was in possession of that much amount as on the** CRL.APPEAL NO.676 OF 2005 9 **date of transaction, it cannot come to a conclusion that PW1 advanced an amount of Rs.2,30,000/- to the accused. This Court in Divakaran v. State of Kerala [2016 (4) KLT 233] and the Apex Court in APS Forex Services Pvt.Ltd. v. Shakti International Fashion Linkers [2020 (2) KLT 21 (SC)] clearly stated that when the accused challenged the source of the complainant to lend money, there is a reverse burden to the complainant to prove that, he has got sufficient source to lend that much amount. Therefore the findings of the appellate court on this point cannot be interfered with by this Court. The appellate court observed that on a careful scrutiny of Ext.P2, it is seen that the date put in Ext.P1 and the signature as found in Ext.P1 are not done by the one and the same person. I also perused Ext.P1 and I am also on the same view that the person who put the signature is not the person who wrote the other endorsements and even the pen and ink used for writing the signature and other endorsements are different. On this ground also the** CRL.APPEAL NO.676 OF 2005 10 **appellate court gave benefit of doubt to the accused. On this point also, I agree with the appellate court.** **13. In addition to that a reading of the complaint, it is clear that no details about the transaction are mentioned by the complainant. In the complaint, it is only stated that “the accused issued at Kavanoor a cheque No.039546 dated 18.10.1999 for Rs.2,30,000/- drawn on the south Indian Bank, Manjeri Branch in favour of the complainant in discharging of a legally enforceable debt”. The nature or the date of the transaction between the parties etc. are not mentioned in the complaint. How and in what manner the accused incurred any debt or liability to the complainant is also not mentioned in the complaint. This Court in Joshy P.G. v. Jose Varghese and Anr. [2019 (4) KHC 753] held as follows:** _**“Complaint and the statutory notice do not disclose how or in what manner, the accused incurred any debt or liability to the complainant. There is no averment in the**_ CRL.APPEAL NO.676 OF 2005 11 _**complaint as to the transaction between the complainant and the accused or the nature of the debt or liability incurred by the accused. It is only stated in the complaint that the accused issued the cheque in discharge of a legally enforceable debt. Of course, absence of averments in the complaint or the notice regarding the nature of the debt or liability of the accused, does not affect the maintainability of the complaint or the validity of the notice. But, absence of averments in the complaint as to the details of the transaction between the complainant and the accused, in which the accused incurred the debt or liability, or the nature of the debt or liability of the accused, affects the credibility of the evidence subsequently adduced by the complainant regarding any such transaction. It affects the credibility of the case set up by the complainant against the accused.”**_ ## **In Divakaran v. State of Kerala [2016 (4) KLT 233],** ## **this Court held like this:** _**“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**_ CRL.APPEAL NO.676 OF 2005 12 _**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.”**_ **14. In the light of the above judgments itself, the accused is entitled the benefit of doubt. Moreover, there is nothing to interfere with the judgment of the lower appellate court, which considered all the facts and allowed the appeal. There is nothing to interfere with the same in an appeal against acquittal.** **Hence, this appeal is dismissed confirming the judgment dated 22.01.2005 in Crl.Appeal No.291 of 2003 on the file of the Additional Sessions Judge, Manjeri (Adhoc Fast Track Court-III).** ## **Sd/-** ## **P.V.KUNHIKRISHNAN** **pkk** **JUDGE** CRL.APPEAL NO.676 OF 2005 13