Kottayam Vyapari Vyavasayi Co-operative Society Ltd. v. Binu Velayudhan and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** **Crl.L.P.No.423 of 2017** **----------------------** **AGAINST THE JUDGMENT IN ST 89/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOTTAYAM DATED 05.07.2017.** ## **PETITIONER/COMPLAINANT :** **----------------------** **KOTTAYAM VYAPARI VYAVASAYI CO-OPERATIVE SOCIETY LTD.NO.K 1027, M.L. ROAD, KOTTAYAM, REPRESENTED BY ITS SECRETARY ABY JAMES, S/O. JAMES, AGED 30 YEARS, KIZHAKKAYIL HOUSE, PALA P.O., LALAM VILLAGE, MEENACHIL TALUK, PIN-686 021.** **BY ADVS.SRI.S.VISHNU (ARIKKATTIL) SRI.M.JAYAKRISHNAN** ## **RESPONDENTS/ACCUSED & STATE :** **---------------------------** **1. BINU VELAYUDHAN, S/O.KUTTAN VELAYUDHAN, AGED 30 YEARS, CHENGAKATHU KIZHEKETHIL, CHENGALAM EAST P.O., ELIKULAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM, PIN-686 585.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR : SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bpr** ## **ALEXANDER THOMAS, J.** ## **------------------------------------------------** ## **CRL.L.P. No.423 of 2017** ## **-----------------------------------------------** **Dated this the 24[th] day of October, 2017** ## **O R D E R** Petitioner seeks special leave of this Court under Section 378(4) of the Code of Criminal Procedure, 1973 to institute criminal appeal so as to impugn the judgment dated 05.07.2017 rendered by the trial court concerned (Court of Judicial First Class MagistrateIV, Kottayam) whereby the accused in S.T.No.89/2016 has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner herein is the complainant and the first respondent herein is the accused in the above said S.T.No.89/2016. 2. Heard Sri. S. Vishnu (Arikkattil), learned counsel appearing for the petitioner (complainant) and Sri. Saigi Jacob, Palatty, learned Prosecutor appearing for the second respondent (State). CRL.L.P. No.423 of 2017 -2- 3. The brief of the case of the complainant is to the effect that in discharge of a debt of `94,322/- owned by the accused to the complainant. The first respondent accused had issued Ext.P7 cheque dated 19.12.2012 for `94,322/- brought from his account in favour of the complainant when it was presented and the same was dishonoured as per Ext.P8 bank memo and and Ext.P9 intimation. The complainant, thereupon, had issued Ext.P10 statutory demand notice dated 29.12.2012 under Section 138(b) of the Negotiable Instruments Act calling upon the accused to pay off the amount covered by the said cheque within a period of fifteen days from the date of receipt of the said notice. The said notice under registered post was duly served on the accused as per Exts.P11 and P12. That the accused had not responded to the said notice and the amount was not paid, the complainant after hearing the requisite formalities, has initiated the present complaint which has led to be filed. During the trial, the complainant has examined itself as PW1 and has marked Exts.P1 to P12 documents. Defence has marked Ext.P1 document. Defence has not adduced any oral evidence. 4. The trial court has found that the accused is entitled CRL.L.P. No.423 of 2017 -3- to the benefit of acquittal in view of the following reasons: A) That the complainant is conspicuously silent about the nature of the transactions and the details of the transactions in question is led to the liability. It is a lean evidence that the complainant has stated for the first time that the accused had executed Ext.P7 cheque dated 19.12.2012 in order to discharge the liability covered by Ext.P5 award passed by the Arbitrator constituted under the Kerala Co-operative Societies Act and the Rules framed thereunder. The trial court has found that the suppression of such crucial material particulars in the complaint has caused serious prejudice to the complainant. This Court in the decision **K.K. Divakaran v. State of Kerala** reported in **2016 (4) KLT 233** has held that the accused in a criminal crime should be appraised of not only of the nature of the offence but also the material particular facts regarding the transaction is led to the liability and the transaction is led to be the execution of the cheque in question which are necessary to the accused to effectively meet and rebut the case against him. But that unscrupulous complainant refuse to do so with the ulterior objective of denying the accused an opportunity of fair trial, which is a fundamental constitutional right CRL.L.P. No.423 of 2017 -4- guaranteed under Article 21 of the Constitution of India and that an accused in a complaint filed under Section 142 of the N.I. Act is also entitled to know before the trial the very material particulars of the accusations and allegations raised against him. Suppression of such crucial material particulars in the complaint alone is sufficient to order his acquittal. It is profitable to refer paras 18 and 20 of the above said decision of this Court in K.K. Divakaran's case (supra) which reads 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._ _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.”_ B) The basic defence set up by the accused during the cross-examination of PW1 to the effect that Ext.P1 was obtained as a CRL.L.P. No.423 of 2017 -5- blank signed cheque to the complainant at the time of disbursement of the loan amount and that the same has been misutilised by filling up the written entries. The pertinent question was caused to Pw1 during his cross-examination as to who exactly is the author of the handwritings in Ext.P7 cheque. The question and answer thereof are as follows: “P7 æÜ handwriting dÉÄßÏáæ¿ÄÞæÃKÞçÃÞ? §ÄßW ²MÞÃí dÉÄßÏáç¿Äí. ®ÝáÄß ²MßGí ®æa ÎáXÉßW æÕºîáÄKÄÞÏß ºàËßW ÉùEßøßAáKÄí æÄxÞçÃÞ? æÄxÞÃí.” Later to clarify this aspect, an effort was made during re-examination of PW1, which the trial court found to be more destructive than the version given in the cross-examination wherein Pw1 has stated during cross-examination that the cheque was handed over by the accused to his friend who accompanied him and that the accused only signed the cheque and entered the date. When the accused was enquired as to why the cheque has been handed over to his friend. He had replied that his handwriting was so poor and he could not write English and that he was the friend of the accused who filled up the entries in the cheque. The trial court found that the said new story developed for the first time during cross-examination, was never adverted to either in the complaint or -6- CRL.L.P. No.423 of 2017 in the chief examination or in the cross-examination. The specific case of PW1 was to the effect that all the entries in the cheque including the handwritten entries therein, were written by the accused. This was fully refracted to in cross-examination and later, a futile explanation was sought to be made by PW1 during his crossexamination. The trial court has found that the above said explanation given by PW1 during re-examination is not a believable and particular version and that the said version of PW1 regarding the execution of issuance of the cheque is not acceptable and that the complainant Co-operative Society has not been able to prove the basic fact regarding the execution of issuance of the cheque in question. C) Ext.P7 cheque dated 19.12.2012 is for `94,322/-. The case set up by PW1 in the complaint is totally silent as to the transactions which led to the liability. For the first time, it is stated in the chief examination by PW1 that the cheque amount represents the discharge of liability owned by the accused to the complainant Co-operative Society by virtue of Ext.P5 award passed by the Arbitrator constituted under the Kerala Co-operative Societies Act and the Rules framed thereunder. And that as per Ext.P5 award, CRL.L.P. No.423 of 2017 -7- the accused had to remit the principal amount of `82,070/- from 25.09.2012 till the date of realisation (19.12.2012) and the interest portion thereon for the period which is less than three months hardly comes to `3,283/- and the total sum of the principal and interest come to `85,353/- whereas the cheque amount is for `94,322/-. The trial court found as to how the complainant has arrived at the total liability of `94,322/- covered by Ext.P7 cheque, has not, in any manner, been explained either in the complaint or in the evidence of PW1. PW1 has candidly admitted that the relevant records to show that the calculations are not available and that he has also admitted that there was difference between the award amount and the amount covered by Ext.P7 cheque (See page No.4 of the cross-examination). PW1 has also testified that Ext.P7 cheque amount is increasing of `6,233/- which is reflected in Ext.P4 loan ledger as the outstanding due on 31.03.2013. But it is to be noted that Ext.P7 cheque dated 19.12.2012, which is almost three months prior to 31.03.2013 which is the date of Ext.P4 loan ledger. In these circumstances, the trial court has found that the complainant has miserably came even to establish convincingly CRL.L.P. No.423 of 2017 -8- before the trial court as to how the total liability figure has been arrived at so as to explain the amount covered by the cheque. 5. In the light of these aspects, the trial court has come to the considered conclusion that the accused is entitled for the benefit of acquittal. The said considered findings and facts made by the trial court cannot be said to be, in any manner, perverse or illegal. Merely, because another view is plausible is not a ground for this Court to upturn the considered verdict of acquittal rendered by the trial court in favour of the accused. ## 6. 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. The Appellate court_ CRL.L.P. No.423 of 2017 -9- _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 facts and circumstances of the case, this Court is of the opinion that even if the appeal is entertained, there is not much scope to reverse the judgment of acquittal rendered by the trial court. Accordingly, it is ordered that the said petition is devoid of merit and the same is accordingly dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** bpr //TRUE COPY// P.A. TO JUDGE