N. Krishna Swamy v. UMMUKULSU and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939** ## **Crl.Rev.Pet.No. 201 of 2017 ()** **------------------------------CRL.A.NO. 38/2013 OF SESSIONS COURT, PALAKKAD DATED 16-09-2015 ST.NO. 477/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, PALAKKAD DATED 18-01-2013** **----------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------------------------------------** **N.KRISHNA SWAMY, AGED 57 YEARS, 5/763, JYOTHI NIVAS, TAMIL THARA, KANJIKODE, PALAKKAD.** ## **BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------------------------------------------------** ## **1. UMMUKULSU,** **AGED 58 YEARS, W/O.USSAINAR, C/O.KHADER BASHA, 12/303 B, FOUSI MANZIL, WALAYAR DAM, PALAKKAD DISTRICT-678 624.** ## **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 REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.201 Of 2017 --------------------------------- Dated this the 7th day of June, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in S.T.No.477/2011 on the file of the Judicial First Class Magistrate Court-I, Palakkad, instituted on the basis of a complaint filed by R-1 herein. The trial court as per the impugned judgment rendered on 18.1.2013 had convicted the petitioner for the above said offence and sentenced him to undergo simple imprisonment for one month and to pay compensation of Rs.1.5 lakhs to the complainant under Sec.357(3) of the Cr.P.C., and in default thereof the accused was sentenced to undergo simple imprisonment for a further period of 2 months. Aggrieved thereby, the petitioner has preferred Crl.A.No.38/2013 before the Sessions Court, Palakkad. The appellate court concerned [Court of Sessions Judge, Palakkad], as per the impugned judgment dated 16.9.2015 had upheld the conviction and sentence and thereby dismissed the appeal. It is aggrieved by these verdicts, that the petitioner has preferred the instant Crl.R.P by taking recourse to the remedy under Sec.397 r/w Sec.401 of the Cr.P.C. ::2:: Crl.R.P.No.201 Of 2017 2. Though notice has been duly served on R-1 (complainant), there is no appearance for that party. Therefore, on several occasions, this Court had adjourned this case to ascertain whether there is any subsequent appearance for R-1. It is seen that even as on date, there is no appearance for that party. 3. Heard Sri.Johnson Varikkappalli, learned counsel appearing for the revision petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. In spite of due service of notice on R-1 there is no appearance for R-1 as stated hereinabove. 4. The case of the prosecution is that the accused had borrowed an amount of Rs.1.5 lakhs from the complainant and in discharge of that liability, he had given the instant Ext.P-1 cheque dated 3.2.2011 for Rs.1.5 lakhs, drawn from his account and payable in favour of the complainant and when the cheque was presented for collection it resulted in dishonour due to insufficiency of funds as per Ext.P-2. Thereupon, the complainant had sent Ext.P-3 statutory notice on 7.2.2011 in terms of Sec.138 proviso (b) calling upon the accused to pay the amount covered by the cheque within 15 days from the date of receipt of the said notice and that notice was duly received by the accused. After due service of the notice as per Exts.P-3(a) and P-4, the ::3:: Crl.R.P.No.201 Of 2017 accused had sent Ext.P-5 reply notice clearly stating that the accused had earlier borrowed an amount of Rs.20,000/- from one Kumaran, agent/friend of the complainant and in that transaction he has given the blank signed cheque as security but he has cleared and said amount and the cheque has been misused by the complainant for instituting the present complaint and that he does not owe any debt or liability as alleged in the statutory demand notice, etc. During the trial, the complainant has examined herself as PW-1 and marked Exts.P-1 to P-5 documents. The defence has not adduced any oral or documentary evidence. 5. Since the very nature of the defence set up by the accused is that he had given blank cheque and as the aspect regarding the signature of the accused could not be seriously disputed by him and since the cheque is issued from the account of the petitioner, the complainant would certainly contend that she is entitled to draw the statutory presumption under Sec.139 of the N.I.Act in the light of the legal principles laid down in that regard by various High Courts and by the Apex Court in T.Vasanthakumar v. Vijayakumari reported in 2015 (8) SCC 378, etc. The accused like the one in the instant case is certainly entitled to draw up clinching factual circumstances even from ::4:: Crl.R.P.No.201 Of 2017 the pleading and evidence adduced by the complainant to show that the said statutory presumption is rebutted. This could be so, not on the basis of proof beyond reasonable doubt, but on the basis of preponderance of probability as has been held by various High Courts and the Apex Court in various rulings. Law in that regard is too well established that it cannot be insisted that accused should always adduce independent defence evidence for such rebuttal of statutory presumption under Sec.138 of the N.I.Act. If the accused is confident that he could successfully pick holes in the very prosecution story and the evidence adduced thereon by the complainant on the basis of preponderance of probability, then they are at liberty to do so and that if the court is convinced that statutory presumption stands so rebutted based on the clinching factual materials that come out from the pleadings and analysis of the evidence of the prosecution, more particularly from the cross-examination, then certainly the accused is entitled to do so by placing reliance on such evidence. On a meticulous consideration of the facts and circumstances, this Court is of the considered view that both the courts below omitted to take into consideration the crucial and relevant evidentiary materials on record and that statutory presumption stands effectively and strongly rebutted ::5:: Crl.R.P.No.201 Of 2017 by the accused in this case due to the following aspects mentioned herein below. 6. PW-1 (complainant) would admit that she is only a coolie worker and that she has no job of her own nor any independent income. She has not been able to effectively bring in any evidentiary material to show that she has financial capacity to pay such huge amount of Rs.1.5 lakhs to the accused. The nature and degree of the relationship between the parties so as to induce the complainant to give such a huge amount and that too without any written receipts or security has been conspicuously omitted to be stated either in the pleadings in the complaint or by adducing any evidence. PW-1 would say that she could raise the money from her brother through his wife in the native place. But at the same time she could not state the address of his brother or sister-in-law. The Apex Court in the case in John K.Abraham v. Simon C.Abraham reported in (2014) 2 SCC 236 had held that the complainant is bound to adduce sufficient evidence to prove his financial capacity so as to entitle him to get statutory presumption under Sec.139 of the N.I.Act. It has come out in evidence that the complainant, a lady, is a coolie worker, who is illiterate and that she does not even have a bank account. Since no evidence is forthcoming as ::6:: Crl.R.P.No.201 Of 2017 to the financial capacity of the complainant, the accused has strongly challenged the very credibility of the transaction alleged by her and this casts a serious shadow of doubt over the very credibility and believability of not only about the financial capacity of the complainant but about the very transaction alleged by her which led to the alleged borrowal of Rs.1.5 lakhs. These aspects are also more reinforced in the light of the crucial fact that entries in the cheque were in the name of type written entries and also in the light of the crucial defence suggestion that the cheque in question was given to the aforesaid third party, Sri.Kumaran, in another transaction and that the cheque would have been misused by the complainant, etc. 6. A mere perusal of statutory demand notice, complaint and proof affidavit would show that none of the material particulars relating to the alleged transaction which led to the borrowal of the money, has been stated or disclosed therein. The averments in the statutory demand notice, complaint and the proof affidavit regarding the handing over of the cheque is only that the accused had handed over Ext.P-1 cheque dated 3.2.2011 and when exactly whether the said cheque was given on 3.2.2011 itself or on some other day is not stated. This Court in the judgment in K.K.Divakaran v. State of Kerala reported ::7:: Crl.R.P.No.201 Of 2017 in 2016 (4) KLT 233 has clearly held that even in a criminal complaint, the accused is primarily called upon to defence the gravamen of charges raised in the complaint and that necessary material particulars of the factual transactions which has led to the alleged offence should be cogently and precisely stated therein to enable the accused to meet the case against him so as to give a reasonable opportunity to the accused to meet those allegations in the trial and that failure or omission to state and disclose such material particulars in the complaint would be fatal as it would amount to depriving the right of fair trial guaranteed to all accused as per Article 21 of the Constitution of India and non-disclosure of such material particulars will lead to throwing out the complaint itself and the accused is entitled for acquittal. Further it is also to be stated that such non-disclosure of details regarding the alleged liability would be depriving the accused of his precious right of free trial guaranteed under Article 21 of the Constitution of India. It would be relevant to note the legal principles laid down in K.K.Divakaran's case (Supra) in paras 18 & 20 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 ::8:: Crl.R.P.No.201 Of 2017 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. **==> picture [229 x 6] intentionally omitted <==** 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.” It would also be profitable to note the decision of the Apex Court in the judgment in Narayana Menon v. State of Kerala reported in (2006) 6 SCC 39 = 2006 (3) KLT 404 (SC), wherein it has been held that an accused in a Sec.138 matter could rebut the presumption on a lesser standard of proof based on preponderance of probabilities and not on heavy burden of proof beyond reasonable doubt. 7. Therefore, this Court has no hesitation to hold that in view of the aforementioned aspects, the accused has strongly rebutted the statutory presumption and as the complainant has not thereafter discharged her heavy burden to prove her case, the accused is certainly entitled for acquitted in this case. Due to such rebuttal, statutory presumption itself disappears and thus the complainant was cast with ::9:: Crl.R.P.No.201 Of 2017 heavy burden to prove his case relating to the transaction and execution of the cheque, etc. That has not been done by the complainant. Both the courts below have omitted to take into consideration these crucial and relevant evidentiary materials on record, which is a serious illegality. Therefore, this Court is constrained to hold that the accused is entitled for acquittal, etc. In the light of the above aspects, it is ordered that the impugned judgments of both the courts below will stand set aside and the accused will stand acquitted of the offence under Sec.138 of the N.I.Act and he is set at liberty. 8. It is pointed out by Sri.Johnson Varikkappalli, learned counsel appearing for the petitioner-accused, that the accused has already deposited an amount of Rs.35,000/- before the trial court in relation to this case in compliance with this Court's interim order dated 14.2.2017 passed in this Revision Petition. If that be so, the trial court will forthwith takes steps to release the said amount to the petitioner on an application in that regard made by him. With these observations and directions, the Criminal Revision Petition stands finally disposed of. ALEXANDER THOMAS, Judge. bkn/-