K.M. Thomas v. C.A. Nazar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **Crl.L.P..No. 154 of 2017 -------------------------** **JUDGMENT DATED 09-03-2017 IN ST 6650/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ERNAKULAM** **.....** **PETITIONER(S)/COMPLAINANT.:** **--------------------------** **K.M. THOMAS, S/O. MATHEW, AGED 60 YEARS, C.C NO.36/69A, KODUVELIPARAMBU HOUSE, LISSIE PULLEPADY CROSS ROAD, ERNAKULAM.** ## **BY ADV. SRI.BIJU ABRAHAM** **RESPONDENT(S)/ACCUSED & STATE :** **-------------------------------** **1. C.A. NAZAR,** **AGED 50 YEARS, S/O ABU, NO.2/855, C.P.C ROAD, FORT KOCHI-682 001.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 31.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 30-05-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **msv/** ## ALEXANDER THOMAS, J. ================== Crl.L.P.No. 154 of 2017 ================== Dated this the 30[th] day of May, 2017 ## O R D E R This is an application filed by the applicant/complainant seeking special leave of this Court so as to institute a criminal appeal impugning the judgment dated 9.3.2017 rendered by the Judicial First Class Magistrate's Court-III, Ernakulam, whereby the 1[st] respondent herein (accused) has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. 2. Heard Sri.Biju Abraham, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the R-2 State. 3. The gist of the version given by the complainant is that the complainant had advanced an amount of Rs. 8.5 lakhs to the accused and that on the basis of the mediation agreement, the accused had given the instant Ext.P-1 cheque dated 21.2.2015 for an amount of Rs.10 lakhs drawn from his account in favour of the complainant, which when presented was dishonoured. That after following the due statutory formalities, including statutory demand notice, etc. the instant complaint has been filed. Crl.L.P.154/17 - : 2 :- 4. During the trial, the complainant has examined himself as P.W-1 and the prosecution has marked Exts.P-1 to P-6 documents. The defence has not adduced any oral or documentary evidence. 5. During the trial, P.W-1 has deposed that there was an agreement for sale entered into by the complainant and the accused on 17.3.2009, whereby the accused had agreed to convey 10 cents of land to the complainant, for which purpose the complainant had given Rs. 8.5 lakhs to the accused and that since the accused had not honoured the sale of the property, an amicable settlement was arrived at between the parties, whereby the accused has issued Ext.P-1 cheque dated 21.2.2015 for an amount of Rs.10 lakhs, which when presented was dishonoured, etc. During the cross examination of P.W-1, the definite challenge made by the defence was that there was no such sale agreement and that the complainant had never given Rs.8.5 lakhs to the accused in 2009 pursuant to any such agreement for sale of immovable property and that as a matter of fact, when the accused was in deep financial trouble, he had borrowed an amount coming to Rs.5 lakhs from the complainant along with interest thereon @ 10% p.a. and at the time of borrowal of the said money, the accused had entrusted five blank singed cheques to the complainant and that the accused was regularly repaying the interest amount to the complainant for 2 months and thereafter he was unable to pay the interest amount and due to the insistence of the complainant, the Crl.L.P.154/17 - : 3 :- accused was forced to transfer one of his flats to the complainant and that the complainant has availed a loan from IDBI bank by pledging the said flat and that the entire financial transactions between the parties were closed and that the instant Ext.P-1 was one of the five signed blank cheques, which was given to the complainant at the time of borrowal of the abovesaid Rs. 5 lakhs and that the said blank signed cheque has been misused by the petitioner, etc. It is not in dispute that the complainant has never produced the said agreement for sale dated 17.3.2009 said to have been executed between the parties for the alleged sale of the said immovable property. P.W-1 has orally asserted about the existence of the said sale agreement, whereas the defence has strongly challenged the very existence of the said sale agreement. As regards the suggestion of the defence regarding the transfer of one of his flats to the complainant to clear off the entire liability of Rs. 5 lakhs along with interest thereon by pledging it before the IDBI Bank, P.W-1 has clearly admitted about the purchasing of a flat belonging to the accused from one Dennis. P.W-1 has also admitted that he had availed a loan by pledging the said flat. But P.W-1 would assert that he had availed a loan in order to purchase the said flat. Though it was suggested by the defence in the cross examination of P.W-1 that he had transferred the loan amount to the account of Dennis and who in turn had re-transferred Rs. 8.5 lakhs to his account under the instructions of Dennis, P.W.1 has deposed that he does Crl.L.P.154/17 - : 4 :- not remember the same. The trial court held that in view of the allegations and counter allegations of rival parties, the entire fulcrum of the case revolves around the existence or otherwise of the agreement for sale said to have been executed by the complainant with the accused on 17.3.2009 for the alleged sale of the immovable property said to be owed by the accused. For that, the best evidence with the complainant was the production of the said agreement for sale. The non-production of the said agreement for sale has been held by the trial court to be fatal so as to affect the very root of the prosecution case. 6. True that the signature of the cheque is admittedly that of the accused and the dishonoured cheque has been issued from an account maintained by the accused. Therefore, going by the legal principles laid down by the Apex Court in many decisions as in Vasanthakumari v. Vijayakumar, reported in (2015) 8 SCC 378, of course the complainant is entitled to initially draw the benefit of the statutory presumption arising out of Sec.139 of the Negotiable Instruments Act. But the said presumption is undoubtedly a rebutable one. The accused, on the basis of the factual circumstances available even from the evidence of the complainant especially during the cross examination of the complainant or through other pleadings and circumstances that could be brought before the trial court, can attempt to rebut such presumption. For that, it cannot be insisted that the accused should necessarily lead Crl.L.P.154/17 - : 5 :- independent defence evidence. The accused is certainly at liberty to plan his defence strategy and if he is able to rebut statutory prosecution even from the clinching facts and circumstances that may be available from the evidence tendered by the witnesses of the complainant, then he need not be burdened with the cumbersome liability to adduce independent legal evidence. The accused is no doubt vested with the constitutional right to remain silent and if he is confident that he can demolish the statutory presumption even without independent defence evidence, the courts cannot insist that he should necessarily adduce defence evidence for that purpose. In the instant case, the abovesaid crucial aspect relating to the withholding of the best evidence due to the non-production of the agreement for sale said to have been executed on 17.3.2009 will lead to a situation that the complainant has not been able to prove his case relating to the very transaction said to have been executed between the parties. Therefore, in the facts and circumstances of this case, the trial court is fully justified in coming to the considered conclusion that the statutory presumption has been effectively rebutted by the accused. Such a rebuttal of the statutory presumption cannot be said to be the end of the role of the complainant and in such cases, on rebuttal of the statutory presumption, it is the obligation of the complainant to prove his case by leading necessary evidence in that regard. Unfortunately, no such evidence has been forthcoming on the part of the complainant. Crl.L.P.154/17 - : 6 :- 7. Moreover, the trial court has also noted that in the light of the facts and circumstances of this case, the nature of the transaction, the date of the sale transaction or the subsequent date regarding the tendering of the cheque and the subsequent crucial aspects should have been disclosed in the complaint and that non-disclosure of such crucial and relevant aspects in the complaint should lead to throwing out of the complaint in the light of the legal principles laid down by the judgment of this Court in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233. In the said judgment this Court has held in paras 18 to 20 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. 19. In the complaint also neither the nature, nor the date of the transaction between the parties is mentioned. The only addition made in the complaint is that the date of issuance of cheque is 14.9.1998. For the first time it was in her evidence the 2nd respondent (PW1) disclosed that the transaction between the parties was a loan of Rs.1,95,000/-. In answer to a leading question put in the examination in chief she stated that the transaction was after the marriage between her daughter Sulatha and the revision petitioner's son Pradeep, which was solemnised on 23.1.1998. She testified that the revision petitioner requested for a loan of Rs.3 lakh one week after the marriage of Sulatha and Pradeep and she paid him Rs.1½ lakh on 9.4.1998 and Rs.45,000/- on 8.5.1998. The amount mentioned in the cheque is Rs.2,55,000/- though the loan amount was only Rs.1,95,000/- Rs.60,000/- is said to be interest. How the interest was calculated will be considered later. Her story is that in Crl.L.P.154/17 - : 7 :- August 1998 she made a demand for repayment of the amount and then the revision petitioner undertook to pay the amount in January 1999; the 2nd respondent insisted on getting a cheque and a document from the revision petitioner; on 14.9.1998 at her residence at Pampadi the revision petitioner executed Ext.P1 cheque and Ext.P8 undertaking. 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.” 8. Going by the facts and circumstances of this case, the trial court cannot be faulted for having held that non disclosure of the abovesaid crucial aspect would amount to suppression of fact and would lead to throwing out of the complaint and the acquittal of the accused. In the light of these aspects, the trial court cannot be faulted for arriving at the considered conclusion that the accused is entitled for acquittal in this case. The said view rendered by the trial court cannot said to be branded as unreasonable or grossly perverse. Merely because another view is possible, is no ground to interfere with the considered verdict of acquittal. 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.” Crl.L.P.154/17 - : 8 :- 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_ ”. 10. On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion that even if appeal is entertained, there is very little scope of any interference with the conclusive findings of the court below, which led to the acquittal in the impugned judgment. Accordingly, this Court is constrained to hold that the Leave Petition is bereft of any merit and accordingly, the same is dismissed. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge