K. VIJAYAN v. SAJEEV KUMAR, MOHANAVALLY and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** ## **Crl.L.P..No. 393 of 2017 ()** **----------------------------** **CRA.347/2012 of II ADDITIONAL SESSION COURT,KOLLAM CC.1144/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, KARUNAGAPPALLY** ## **PETITIONER(S): -------------** **K.VIJAYAN, PEEDIKATHARA HOUSE, VAVVAKKAVU P.O., CHANGANKULANGARA, OCHIRA, KARUNAGAPPALLY, KOLLAM DIST.** **BY ADVS.SRI.K.SIJU SRI.S.ABHILASH SMT.S.SEETHA** **RESPONDENT(S):** **--------------** ## **1. SAJEEV KUMAR,** **S/O NARAYANAN, KIRAN NIVAS, MUTTATHUKONAM P.O., ILAVUMTHITTA VILLAGE, PATHANAMTHITTA DIST.** ## **2. MOHANAVALLY,** - **W/O SAJEEV KUMAR, KIRAN NIVAS, MUTTATHUKONAM P.O., ILAVUMTHITTA VILLAGE, PATHANAMTHITTA DIST.** ## **3. STATE OF KERALA,** - **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1-R2 BY ADVS. SRI.GEORGE ABRAHAM PACHAYIL SMT.JEBI MATHER HISHAM SRI.AJEESH S.BRITE SRI.K.DILIP** **R3 BY GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 04-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** **Crl.L.P..No. 393 of 2017 ()** ## **--------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURE ----------------------ANNEXURE 1 THE COPY OF ORDER IN CRL. APPEAL NO.347/2012 DATED 21.6.2016 ON THE FILE OF II ADDITIONAL SESSIONS COURT, KOLLAM** **RESPONDENT(S)' ANNEXURE -----------------------** **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.L.P.No.393 of 2017 ----------------------------------------Dated this the 4[th] day of October, 2017 ## _**JUDGMENT**_ The petitioner seeks special leave of this Court under Section 378(4) of Code of Criminal Procedure to file Criminal Appeal so as to impugn the judgment dated 25.10.2012 rendered by the trial court concerned (Court of the Judicial First Class Magistrate, Karnagappally) whereby the first respondent herein (accused therein) has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. 2. Heard Sri.Siju Kamalasanan, learned counsel appearing for the petitioner/complainant, Sri.George Abraham Pachayil, learned counsel appearing for R1 and R2 (accused Nos.1 and 2) and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R3/State. 3. The brief of the case set up by the complainant is to the effect that the complainant and the two accused persons were closely known to each other and that on 12.7.2006, the accused persons had approached the complainant for advancing a personal loan of Rs.1,00,000/- to them. On the same day, the complainant had advanced the said amount of Rs.1,00,000/- to the accused persons and : **:2::** Crl.L.P.No.393/17 accused No.1 had issued Exhibit P1 cheque dated 12.7.2006 for Rs.1,00,000/- from the joint account of the two accused persons in discharge of the said liability. Later, when the cheque was presented for collection, the cheque was dishonoured on the ground of ‘ _insufficiency of funds_ ’ as per Exhibit-P2 and Exhibit-P3 Bank memos dated 4.8.2006 and 10.8.2006 respectively. Thereupon the complainant had issued Exhibit P4 statutory demand notice dated 31.8.2006 calling upon the accused to pay off the amounts covered by the cheque within a period of 15 days from the date of receipt of the said notice. The said notice sent by registered post was duly served on the accused as per Exhibits P5 and P6. After following the requisite procedural formalities, the complainant had initiated the present complaint which led to the conduct of the trial in the complaint. 4. During trial, the complainant has examined as PW1 and has marked Exhibits P1 to P6 documents. The defence has adduced oral evidence to DW1 (accused No.1), DW2 and DW3. The defence has also marked Exhibits D1 & D2 documents, D3 computer memory card and Exhibit D4 compact disc downloaded from the memory card, etc. 5. Immediately on getting Exhibit-P4 statutory demand notice, the accused had issued Exhibit-D1 reply notice dated 16.9.2006 : **:3::** Crl.L.P.No.393/17 intimating the complainant that the accused persons did not have any acquaintance or relationship or transactions whatsoever with the complainant and that the allegations in the demand notice are absolutely false. According to them, they have not taken any loan of Rs.1,00,000/- and they have never executed Exhibit P1 cheque in favour of the complainant and that some time in 2001, accused No.1 had taken a personal loan from one Sri.T.K.Shaji for Rs.50,000/- and Rs.20,000/-, thus totalling to Rs.70,000/- and in security thereof, he had given the instant Exhibit-P1 cheque and another cheque, both are blank signed cheques as security in that transaction and that Exhibit P1 cheque has been now misused in the present complaint. After hearing both sides and on a perusal of the materials on record, it is seen that the trial court has acquitted the accused persons in view of the following reasons: - (A) It is indisputable that though Exhibit P1 dishonoured cheque has been issued from a joint account maintained by accused Nos.1 and 2, there is only one signatory in that cheque and accused No.2 is not even a signatory to that cheque even going by the case set up by the complainant. The complainant has no case that there is any element of corporate vicarious liability as against the accused persons, as envisaged in : **:4::** Crl.L.P.No.393/17 Section 141 of the Negotiable Instruments Act. Therefore, as held by the Apex Court in the judgment in _**Aparna A.Shah v. Sheth Developers (P) Ltd. and another**_ reported in _**(2013) 8 SCC 71 = 2013 (3) KLT 190**_ and going by the decision of this Court in _**Devi v. Haridas**_ reported in _**2004 (3) KLT 355**_ , the offence under Section 138 of the Negotiable Instruments Act is not attracted as against accused No.2. Therefore, in view of these aspects, the acquittal of accused No.2 as per the impugned judgment, is fully right and proper. (B) The trial court on the basis of careful and meticulous evaluation of evidence on record has found that there are lot of suspicious circumstances in the evidence of the complainant and that the accused. The trial court has further found that it is highly doubtful whether the complainant had the financial capacity to lend Rs.1,00,000/- to the accused at the time of the borrowal transaction. The only oral assertion made by the complainant is to the effect that he was formally employed in a Gulf country and that he is now working as a salesman in a hardware shop and that he was doing door to door delivery of consumer durables during that period. Except by raising such oral assertions, the complainant has not let in any material : **:5::** Crl.L.P.No.393/17 evidence to convince the trial court that he had requisite source of funds and financial capacity to advance such a huge amount of Rs.1,00,000/- to the accused at the time of borrowal transaction on 12.7.2006. The Apex Court in the decision in _**John K.Abraham v. Simon C.Abraham and another**_ reported in _**(2014) 2 SCC 236**_ has categorically held therein that in order to draw the benefit of the statutory presumption under Section 118(a) read with Section 139 of the Negotiable Instruments Act, the burden is indeed quite heavy upon the complainant to prove that the act for advancing money to the accused at the time of the borrowal transaction in question. Similar view has been reiterated by the Apex Court in the decisions as in _**K.Subramani v.K.Damodara Naidu**_ reported in _**(2015) 1 SCC 99**_ , _**K.Prakashan v.P.K.Surenderan**_ reported in _**(2008) 1 SCC 258**_ , etc. Since the complainant has miserably failed to adduce any convincing material evidence before the trial court to prove the crucial fact that he indeed had the financial capacity and source of funds to make the borrowal transaction on 12.7.2006, the trial court is right in holding that the complainant is not entitled for the benefit of the statutory presumptions contemplated in Section 118(a) and Section 138 Crl.L.P.No.393/17 : **:6::** ## of the Negotiable Instruments Act. (C) The trial court has found that no cogent and convincing circumstances has been brought out before the court to establish the nature and proximity of the relationship between the parties which induced the complainant to part such a huge amount of Rs.1,00,000/- to the accused without insisting for any security, receipt, documentation and without charging any interest. PW1 (complainant) orally asserted during the time of deposition that he is related to the accused persons whereas the accused persons right from the issuance of Exhibit-D1 reply notice dated 16.9.2006 has taken the clear and unequivocal stand that they are not in any manner related to the complainant and that they never had any transactions whatsoever with the complainant and that the only transaction that accused No.1 was with one Sri.T.K.Shaji who happens to be none other than the brother in law of the complainant and that the amounts in that regard was already paid off by accused No.1 to Sri.T.K.Shaji and that the said person had not handed over the blank signed cheques including Exhibit-P1 cheque stating that he had misplaced the same. No convincing evidence whatsoever to be let in by the complainant to prove : **:7::** Crl.L.P.No.393/17 his oral assertion that the complainant and the accused are relatives. Therefore, the trial court was convinced that the very version projected by the complainant is not believable or credible and that his evidence lacks authenticity and believability. It has been held by this Court in the decision in _**Bhaskaran Nair v. Mohanan**_ reported in _**2009 (2) KLT 897**_ that where the material produced disclose of suspicious circumstances surrounding the transaction between the parties and if no satisfactory explanation is tendered by the holder of the instrument to that effect as to the genuineness of the transaction then no conviction is legally permissible solely on the basis of the statutory presumption. The Apex Court in the decision in _**Vijay v. Laxman**_ reported in _**(2013) 3 SCC 86 = 2013 (1) KLT 157 (SC)**_ has held that where the case set up by the holder of the cheque is dubious, then the initial presumption under Section 138 of the Negotiable Instruments Act itself will come to an end. - (D) Apart from the unilateral oral assertions made by the complainant, no independent evidence has been let in by the complainant to prove the alleged transactions as well as the alleged execution and issuance of the cheque by the accused. : **:8::** Crl.L.P.No.393/17 The trial court found that since there are heavy suspicions regarding the very case set up by the complainant, it will not be safe to convict the petitioner solely on the basis of his oral assertion and that since no other independent evidence has been let in, it will not be right and proper for the trial court to convict the accused persons in this case. A perusal of Exhibit P4 statutory demand notice dated 31.8.2006 would disclose that the details of the cheque, date of issuance, cheque number, the Bank from which it is drawn, the date of dishonour, etc. are totally omitted to be disclosed in the statutory demand notice. Therefore, it is highly doubtful that the petitioner has complied with the strict statutory and mandatory requirements of the demand notice as contemplated in proviso (b) of Section 138 of the N.I.Act. Still further it is to be noted that immediately after receiving Exhibit-P4 demand notice, the accused had issued Exhibit D1 reply notice dated 16.9.2006. Other than vaguely stating in the complaint that the contents in the reply notice are false, the complainant has omitted to produce the said reply notice along with the documents produced along with the complaint. As noted hereinabove, since the complainant has miserably failed to prove his source : **:9::** Crl.L.P.No.393/17 of funds, he is not entitled to get the benefit of statutory presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act. In such a scenario, the complainant had the heavy burden to prove the execution and issuance of the cheque on the basis of the evidence which needs the standard of proof beyond reasonable doubt. Such evidence is fully lacking in the instant case. 6. In the case _**State of Rajasthan v. Darshan Singh @ Darshan Lal**_ reported in _**2012 (4) Supreme 72 = (2012) 5 SCC 789**_ , the Apex Court has held as follows : _“24...........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 v. 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.”_ : **:10::** Crl.L.P.No.393/17 7. In the light of all these aspects, the trial court cannot be found fault with for coming to the considered conclusion that both the accused are entitled for the benefit of acquittal in the instant case. The said considered findings of fact made by the trial court cannot be said to be vitiated by gross perversity or illegality merely because another view is plausible for this Court to upturn a considered verdict of acquittal rendered by the trial court in favour of the accused. Accordingly, this Court is of the considered view that the petition seeking leave is bereft of any merit and the same is dismissed. **ALEXANDER THOMAS JUDGE** csl