High Court of KeralaSingle Judge2017-10-13Leave petition dismissed; acquittal stands

K.K. Subair v. K.P. Lakshmanan and Society for Information Technology Development and State of Kerala

Case / Petition Number:Crl.L.P.No.407 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
Judgment Date: 2017-10-13
Court Decision / Holding: Leave petition is dismissed; the order of acquittal by the trial Court stands
Final Disposition: Leave petition dismissed; acquittal stands

Parties to the Case

Appellants / Petitioners

K.K. Subair

Respondents

K.P. Lakshmanan
Society for Information Technology Development
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Abdul Raoof Pallipath
• Sri K.R. Avinash (Kunnath)

Counsels for Respondents

• Sri Saigi Jacob Palatty

Case Synopsis & Summary

Subair, the complainant in S.T.C. No.97/2017 before the Judicial First Class Magistrate, Kannur, seeks leave of this Court to file a criminal appeal under Section 374(2) CrPC against an acquittal in a cheque-bounce case under Section 138 of the Negotiable Instruments Act. The trial court recorded an acquittal largely on the ground of suppression and absence of essential particulars in the complaint, noting that the complaint/pleading did not disclose material facts such as the nature of the loan, the exact date of borrowal, or the date on which the cheque was handed over, and that the proof affidavit introduced a fresh version alleging that the first accused borrowed Rs.4 lakh for and on behalf of the second accused society, with Ext.P-1 cheque drawn on the society’s account. The trial court also highlighted lack of receipts, documentation, security, or interest, undermining credibility and the presumption under Sections 118(a) and 139 of the NI Act. It relied on K.K. Divakaran v. State of Kerala to stress the need to disclose transaction particulars prior to trial, and on other precedents about evidentiary burden. This High Court, while acknowledging these principles, held that appellate interference with acquittals should be confined to exceptional cases where the judgment is perverse and compelling circumstances exist, and ultimately dismissed the leave petition, sustaining the trial court’s acquittal.

Provisions of Law Cited

Sec. 138 of the Negotiable Instruments ActSec. 142 of the Negotiable Instruments ActSec. 118(a) of the NI ActSec. 139 of the NI Act

Legal Doctrines & Maxims

Presumption of innocence
Burden of proof on the complainant under NI Act (Secs. 118(a) and 139)
No conviction solely on statutory presumptions; need to examine genuineness of transaction

Submissions & Arguments

Contentions of Appellants / Petitioners

Subair contends that the trial court’s acquittal is vitiated by suppression of crucial facts and material omissions in the complaint, depriving him of fair notice and an effective opportunity to meet the defence. The complaint, and the evidence, allegedly fail to disclose essential particulars of the borrowal transaction (nature of debt, dates, date of cheque handover), while the proof affidavit later frames a different case that the first accused borrowed Rs.4 lakh for and on behalf of the society. Relying on K.K. Divakaran v. State of Kerala and other precedents, counsel argues that the complainant must disclose material particulars before trial; suppression warrants acquittal and violates Article 21; the burden to prove funds and the transaction lies with the complainant under Sections 118(a) and 139 NI Act. Therefore, leave should be granted and the matter remitted for merits.

Contentions of Respondents

The respondents contend that the trial court’s acquittal was properly grounded in the suppression of material facts and lack of credible evidence, justifying acquittal. They rely on the established principle that appellate courts interfere with acquittals only in exceptional cases where the judgment is perverse and compelling circumstances exist, citing State of Rajasthan v. Darshan Singh (Darshan Lal), Pudhu Raja v. State, and other precedents. They emphasize the heavy burden on the complainant to prove the transaction and money-lending facts and argue that the evidence did not establish a genuine loan; the absence of receipts, documents, security, or interest further undermines reliability. The court’s role is to ensure not to convict merely on statutory presumptions, and no perverse reasoning is shown to warrant interference with a sound acquittal.

Cited Precedents (8)

Case Name	Citation	Treatment	Explanation
K.K. Divakaran v. State of Kerala	2016 (4) KLT 233	Positive	Cited for the principle that the accused must be informed of the nature and particulars of the transaction prior to trial; suppression of material facts cited as ground to acquittal.
Vijay v. Laxman & anr.	(2013) 3 SCC 86	Positive	Cited to illustrate that the case itself can be dubious and that presumptions under Secs. 118(a) and 139 NI Act can be negated by lack of credible facts.
Bhaskaran Nair v. Mohanan	2009 (2) KLT 897	Positive	Cited for the proposition that suspicious circumstances require more than presumptions to convict.
John K. Abraham v. Simon C. Abraham	(2014) 2 SCC 236	Positive	Cited to emphasize the heavy burden on the complainant to prove funds under NI Act presumptions.
K. Subramani v. K. Damodara Naidu	(2015) 1 SCC 99	Positive	Cited regarding burden of proof and requirement to show money was available at the relevant time.
K. Prakashan v. P.K. Surenderan	(2008) 1 SCC 258	Positive	Cited for the heavy burden on the complainant to invoke presumption under NI Act.
State of Rajasthan v. Darshan Singh (Darshan Lal)	(2012) 5 SCC 789	Positive	Cited to support that appellate interference with acquittal is permissible in exceptional perverse cases.
Pudhu Raja and another v. State	(2012) 11 SCC 196 = (2013) 1 SCC (Cri) 430	Positive	Cited to reinforce the exceptional-circumstances standard for appellate interference with acquittals.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939** **Crl.L.P..No. 407 of 2017 ()** **---------------------------STC 97/17 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KANNUR ------------** **PETITIONER(S)/COMPLAINANT: -------------------------** **K.K. SUBAIR,** **AGED 57 YEARS, S/O.C.A.C.ABDUL RAHIMAN HAJI, "FATHIMAS", URUVACHAL, P.O.CHOVVA, KANNUR DISTRICT.** **BY ADVS.SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH)** ## **RESPONDENT(S)/ACCUSED:** **----------------------** **1. K.P. LAKSHMANAN, PRESIDENT, SOCIETY FOR INFORMATION TECHNOLOGY DEVELOPMENT, 4TH FLOOR, KVR TOWER, NEAR MAHATMA MANDIR, KANNUR-670002. 2. SOCIETY FOR INFORMATION TECHNOLOGY DEVELOPMENT, 4TH FLOOR, KVR TOWER, NEAR MAHATMA MANDIR, KANNUR-670002, REPRESENTED BY ITS PRESIDENT.** **3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R3 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 13-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ALEXANDER THOMAS, J. ----------------------------- Crl.L.P.No.407 Of 2017 --------------------------------- Dated this the 13[th] day of October, 2017. ## J U D G M E N T The petitioner, who is the complainant, seeks leave of this Court for filing Criminal Appeal to challenge the impugned judgment of acquittal rendered by the trial court in this case. The petitioner is the complainant and the 1st respondent is the accused in S.T.C.No.97/2017 on the file of the Judicial First Class Magistrate Court-IV, Kannur, for the offence alleged under Sec.138 of the Negotiable Instruments Act. 2. Heard Sri.K.R.Avinash, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jaob Palatty, learned Prosecutor appearing for R-3 State. 3. The gist of the complaint is that the complainant and the accused are known to each other and that the 1st accused is the President of the Society for Information Technology and 2nd accused is the said Society, which is represented by its President and that in order to discharge the liability, the accused had issued Ext.P-1 cheque dated 1.7.2013 for Rs.4 lakhs, which when presented resulted in dishonour, etc. After issuing statutory demand notice, etc., the complainant has filed the instant complaint which led to the conduct of the trial. During the trial, the complainant was examined as PW-1 and marked Exts.P-1 ::2:: Crl.L.P.No.407 Of 2017 to P-7 documents. The accused has not adduced any oral or documentary evidence. The trial court had found that the accused is entitled to acquittal in view of the following reasons: (A) The complaint is silent about the minimum material particular facts like the nature of the transaction, date of borrowal, date of handing over of the cheque and that on the other hand in the proof affidavit, entirely a new case has been introduced by the complainant alleging that accused No.1 had borrowed for and on behalf of accused No.2 society, an amount of Rs.4 lakhs from the complainant on the promise that he would repay the same within 6 months and that later on demand, the accused No.2 has issued Ext.P-1 cheque drawn from the account of the accused and payable in favour of the complainant, etc. The trial court has held that in view of material suppression of crucial and relevant facts regarding the nature of transaction, date of transaction, date of handing over of the cheque, the accused is entitled for the benefit of acquittal. This Court in the decision in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, has held that in a criminal trial 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. ::3:: Crl.L.P.No.407 Of 2017 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. It will be profitable to refer to paras 18 & 20 of the above said decision which read 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. ## 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 him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal.” ::4:: Crl.L.P.No.407 Of 2017 Therefore, in the light of the above said legal principles, the trial court cannot be found fault with for having acquitted the accused on the ground of suppression of crucial and material factual aspects in the complaint. (B) The trial court has noted that the nature, proximity and relationship between the parties are not even adverted to in the evidence in order to convince the court as to the circumstances and reasons which induced the complainant to part with such huge amount of Rs.4 lakhs without any receipt, documentation, security and without charging any interest, etc. The trial court has noted that the crossexamination of PW-1 would show that the complainant is not even aware about the address of the accused. That ordinarily, if a complainant had lent a huge amount of Rs.4 lakhs, certainly he is expected to keep receipt for it and should know about the particulars of the accused. That absence of any documentation, receipt, security and not charging any interest, etc., are circumstances, which would create serious doubt about the very credibility and believability of the version projected by the complainant. The Apex Court in Vijay v. Laxman & anr., reported in (2013) 3 SCC 86, has held that the very case set up by the holder of a cheque itself is dubious and the initial presumption under ::5:: Crl.L.P.No.407 Of 2017 Sec.118(a) and 139 of the Negotiable Instruments Act itself comes to an end. This Court in Bhaskaran Nair v. Mohanan, reported in 2009 (2) KLT 897, has held that where the materials produced disclose of suspicious circumstances surrounding the transaction and if no satisfactory explanation is tendered by the complainant to explain such circumstances, no conviction is legally permissible solely banking upon the statutory presumptions and the court is expected to examine whether the transaction covered by the cheque is genuine, etc. In the light of these well settled legal principles, the trial court cannot be found fault with for having taken the view that the very version projected by the complainant cannot be the safe basis for convicting the accused. (C) Further the trial court has noted that the complainant has not produced any reliable materials to prove the crucial fact that he was financially capable of raising Rs.4 lakhs to pay to the accused at the relevant time of borrowal transaction in question. The Apex Court has held as in John K.Abraham v. Simon C.Abraham, reported in (2014) 2 SCC 236, K.Subramani v. K.Damodara Naidu, reported in (2015) 1 SCC 99 and K.Prakashan v. P.K.Surenderan, reported in (2008) 1 SCC 258, that in order to draw presumption under Sec.118(a) and 139 of the N.I. Act, ::6:: Crl.L.P.No.407 Of 2017 the burden is quite heavy upon the complainant to prove that he had requisite money to advance the adduced at the relevant time of the transaction in question. Therefore, the said view taken by the trial court cannot be said to be justifiable or perverse. 3. It is in the light of such factual aspects, based on the appreciation of evidence on record that the trial court has come to the considered conclusion that the accused is entitled for acquittal. 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. 4. 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. ::7:: Crl.L.P.No.407 Of 2017 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 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. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // true copy // P.A to Judge.