M. Veerankutty v. M. Abdul Basheer and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939** ## **Crl.L.P..No. 382 of 2017 ()** **---------------------------CC.NO.39/2017 (ST.NO.192/2016) OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, MANJERI --------------** ## **PETITIONER/COMPLAINANT:** **-------------------------------------------** **M. VEERANKUTTY, 52 YEARS, SON OF KUNHAHAMMAD, MADASSERI (HOUSE), KANDALAPATTA, KARAKUNNU P.O, KARAKUNNU VILLAGE, ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 676 123. (EDAVANNA POLICE STATION).** ## **BY ADV. SRI.M.P.MOHAMMED ASLAM** **RESPONDENT(S)/ACCUSED: -------------------------------------------** ## **1. M. ABDUL BASHEER, 42 YEARS,** **MANJAPPULLIYILKUPPATTU ABOOBACKER, VETTEKKODU, PULLANJERI (POST) VIA. MANJERI, COLLEGE (POST), ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 676 122 (MANJERI POLICE STATION).** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 27-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J.** ## **----------------------------** ## **Crl.L.P.No. 382 of 2017** **----------------------------** Dated this the 27[th] day of September, 2017 ## **ORDER** The petitioner seeks special leave of this Court under Section 378(4) of the Code of Criminal Procedure Code, 1973 to file Criminal Appeal so as to impugne the judgment dated 19.06.2017 rendered by the trial court concerned. (Judicial First Class Magistrate Court-III, Manjeri), whereby the accused in C.C.No.39 of 2017 has been acquitted for the offence 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 stated C.C.No.39 of 2017. 2. Heard Sri.M.P.Mohammed Aslam, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Paletty, learned Public Prosecutor appearing for R2, State. 3. The brief of the case of the complainant is to the effect that the accused and the complainant were friends and that on 1.2.2016 the accused had borrowed an amount of Rs.4,50,000/from the complainant at the latter’s residence and on the same day for discharging the said liability the accused had executed Ext.P1 Crl.L.P.No. 382 of 2017 2 cheque dated 1.03.2016 for Rs.4,50,000/- drawn from his account and payable in favour of the complainant. The cheque when presented resulted in dishonour as per Ext.P2 memo dated 2.03.2016 pursuant to which the complainant had issued Ext.P3 statutory demand notice under Sec.138 proviso (b) of the NI Act calling upon the accused to pay off the amount covered by the said cheque within a period of 15 days from the date of receipt of the said notice. The notice sent by registered post was duly received by the accused as per Exts.P4 and P5 and the accused had not responded to the same by issuing any reply. Thereafter the complainant, on fulfilling necessary statutory formalities has instituted the present complaint which has resulted in the trial in question. During the trial the complainant was examined as PW1 and has marked Exts.P1 to P5 documents. The accused has not adduced any oral or documentary evidence. The basic defence set up by the accused during the cross examination of PW1 was to the effect that there is no borrowal transaction between the accused and the complainant as alleged in the complaint and that the accused had given the instant cheque as a blank signed one to another person in a transaction between those parties. The said cheque has been misused in the instant complaint etc. The trial court as per the impugned judgment has found that the accused is Crl.L.P.No. 382 of 2017 3 entitled for the benefit of acquittal in view of the following reasons. A. The trial court has found that the accused has seriously questioned the financial capacity of the complainant to advance such a huge amount of Rs.4,50,000/- to the accused at the time of borrowal transaction in question. During cross examination, PW1 (complainant) has deposed that the amount was raised from his income and that he has 2 acres and 17.75 cents of property in his name. The trial court found that no material evidence has been let in to prove that the complainant has derived any income from his landed property. Further PW1 has deposed that he also works in a Bus, but no evidence whatsoever has been let in to prove the income from that source. Still further PW1 has deposed that he does not know what is his actual family income as per his ration card. The trial court found that the said approach of the complainant is to evade the answer to the specific relevant question which speaks volume regarding the lack of financial stability of the complainant. Accordingly the trial court has found that no convincing and proper evidence has been let in by the complainant to prove the crucial fact regarding the source of income at the time of raising huge amount for the borrowal transaction in question and that the oral assertions made by the complainant, is feeble and weak and cannot be a safe basis for convicting the accused. The Crl.L.P.No. 382 of 2017 4 Apex Court in the decision in **John K Abraham v. Simon C.Abraham** reported in ( **2014)2 SCC 236** has held that in order to draw the benefit of statutory presumption under Section 118(a) and Section 139 of the NI Act, the burden is heavily on the complainant to prove that he had requisite funds for being advanced the money to the accused at the time of the borrowal transaction in question. Similar view in this regard has been reiterated by the Apex Court in the decisions as in **K.Subrahmanian v. K.Damodara Naidu** reported in **(2015) 1 SCC 99, K.Prakasan v. T.K.Surendran** reported in **(2008) 1 SCC 258** , etc. In the light of these aspects, the trial court cannot be found fault with for having taken the view that the petitioner is not entitled to draw the benefit of the statutory presumptions under Sec.118(a) and Sec.139 of the NI Act, inasmuch as he has miserably failed to prove the source of funds. B. The trial court has also found that though the complainant has claimed that he and the accused were close friends and it is the reason why he advanced such a huge amount etc., but that during cross examination of PW1 he has deposed that he has never gone to the house of the accused and further that he does not know about the job or source of income or property of the accused. The trial court found that the above said clear admission made in the Crl.L.P.No. 382 of 2017 5 evidence of PW1 raises a strong doubt about the credibility and believability of the complainant that he had advanced a huge amount of Rs.4.5 lakhs to the accused merely on the basis of friendship and acquaintance and that it is highly improbable that without having sufficient knowledge about the financial capacity of the accused to pay back such a huge amount. The trial court thus held that these fact would speak against the complainant which improbabilises his case and would also probabilise the defence version that the complaint has been instituted by misusing blank signed cheque of the accused handed over in another transaction etc. This Court in **Bhaskaran Nair** v **. Mohanan** reported in **2009 (2) KLT 897** , has held that where the materials produced disclose of the suspicious circumstances surrounding the transaction and if no satisfactory explanation is tendered by the complainant in that regard, it is not safe to impose any conviction solely banking upon the statutory presumptions. The Apex Court in **Vijay v. Laxman** 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 Secs.118(a) and 139 of the Negotiable Instruments Act itself comes to an end. In the light of these aspects, the trial court cannot be blamed for having taken the view that the very case set up by the complainant lacks credibility or believability or at least Crl.L.P.No. 382 of 2017 6 that the said weak evidence projected by the complainant cannot be the safe basis for imposing a conviction against the accused in this case. During cross examination the complainant has deposed that the accused has only signed the cheque in his presence and that he does not know who wrote the other written entries in the cheque. The trial court found that in the complaint and in the evidence, there is no explanation regarding the facts and circumstances, under which the accused had allegedly approached the complainant with the cheque with filled up written entries and that these aspects would also raise a strong suspicion about the very case set up by the complainant. It is in the light of all these aspects, the trial court has taken the considered view that the evidence adduced by the complainant cannot be the safe basis for convicting the accused and that the accused is therefore entitled for the benefit of acquittal. The said considered findings and facts made by the trial court cannot be said to be vitiated by gross perversity or illegality. 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. 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:- Crl.L.P.No. 382 of 2017 7 _“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 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** //True Copy\\ P.A to Judge IAP