Nazar P. v. Kabirdas P.P. and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939** **Crl.L.P..No. 214 of 2017 ()** **---------------------------ST 48/2016 of JUDICIAL FIRST CLASS MAGISTRATE COURT (SPL. COURT)FOR TRIAL OF CASES U/S.138, N.I.ACT (TEMPORARY)** **PETITIONER/COMPLAINANT :** **NAZAR P., S/O.KOYA, AGED 40 YEARS, "GREEN VILLA" MULLATH PARAMBA, KALLAI P.O, VATTAMPOYIL, KOZHIKODE DISTRICT** **BY ADVS.SRI.P.R.SREEJITH** **SRI.M.PROMODH KUMAR SRI.K.B.SAJEESH SMT.MAYA CHANDRAN** **RESPONDENTS/ACCUSED AND STATE :** **-----------------------------** **1. KABIRDAS P.P. S/O. SANTHAKUMARI, "KRISHNA", KURUPASHAMKANDY PARAMBA, CHAVAYOOR P.O, KOZHIKODE DISTRICT 673 017** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALETTY** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 30-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## ALEXANDER THOMAS, J. ================== Crl.L.P.No. 214 of 2017 ================== Dated this the 30[th] day of June, 2017 J U D G M E N T The petitioner seeks special leave of this Court under Sec.378(4) of the Cr.P.C. to institute criminal appeal so as to challenge the judgment dated 30.3.2017 rendered by the trial court (Court of Special Judicial First Class Magistrate (N.I.Act Cases), Kozhikode, whereby the accused therein (R-1 herein) has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. The cheque amount in this case is for Rs. 15 lakhs. 2. Heard Sri.P.R.Sreejith, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. In the nature of the order that is proposed to be passed in this petition, notice to R-1(accused) will stand dispensed with. 3. The basic defence set up by the accused is that he had issued blank signed cheques to the complainant as security in respect of a previous transaction, which took place in 2011 and that though he had repaid the said amount, the complainant had not returned the cheque, due to some subsequent animosity and that he has misused the same by presenting one of the blank signed cheques for instituting the present complaint. The borrowal of transaction in question pertains to this case is Crl.L.P.214/17 - : 2 :- said to have taken place in June 2015 and Ext.P-1 cheque dated 6.11.2015 was issued by the complainant for an amount of Rs.15 lakhs. As the defence of the accused is that he had handed over blank signed cheques, there is no much dispute by him that the signature in the cheque belongs to him and the cheque has been issued from the account maintained by him. Therefore, going by the well established principles in that regard by various rulings of the Apex Court and High Courts as in Vasanthakumari v. Vijayakumar, reported in (2015) 8 SCC 378, the complainant claims the benefit of statutory presumption in this case. However, the trial court finds in the impugned judgment that the petitioner is not entitled to the benefit of statutory presumption or that the accused has effectively rebutted the said statutory presumption in view of the following aspects: (a) According to the complainant, he had advanced a total amount of Rs.28 lakhs to the accused in the last week of June, 2015 and that in discharge of part of that liability, the accused has issued Ext.P-1 cheque dated 6.11.2015 on 6.10.2015 for Rs.15 lakhs. However, the trial court has clearly found that the complainant has not proved that he had the requisite source of money to lend such the huge amount of Rs.28 lakhs to the accused, at the relevant time in the last week of June, 2015. Apart from the oral assertions, the complainant has not adduced any proper evidence or materials to prove that he had requisite source of money to raise such a huge amount in the last week of June, 2015. The Crl.L.P.214/17 - : 3 :- main argument of the complainant is that even as per the defence of the accused he has admitted that the complainant had given the amount of Rs.20 lakhs in 2011 and that therefore the accused cannot have any quarrel or disputations about the financial capacity of the complainant to advance Rs.28 lakhs in June, 2015. The trial court cannot be faulted with in taking the view that even if it is admitted by the accused that the complainant had earlier advanced Rs.20 lakhs in 2011, that will not absolve the burden of the complainant to convince the trial court that he indeed have the source of money to raise such a huge amount of Rs.28 lakhs in the last week of June, 2015, at which point of time, the alleged borrowal has taken as per the case of the complainant. In this regard the Apex Court has held in John K Abraham v. Simon C. Abraham, reported in 2014 (2) SCC 236, that in order to enable a complainant to draw the benefit statutory presumption, he will have to necessarily prove his financial capacity and the source of his money to raise amounts allegedly given as advance to the accused at the relevant time. Since the complainant has failed to prove this aspect before the trial court, the said court cannot be blamed for having arrived at a considered conclusion that the complainant has miserably failed to prove his case and therefore the accused is entitled for the benefit of acquittal. The trial court has noted that even in the proof affidavit filed in lieu of the chief examination, P.W-1 (complainant) has not stated anything about his Crl.L.P.214/17 - : 4 :- source of money. Further P.W-1 has admitted in cross examination that there was no total transaction of Rs.50 lakhs through his bank accounts during the period from 2011 to 2016 and that he cannot remember the exact amount available in his bank account during that period. Very interestingly P.W-1 has also stated in his cross examination that the amount withdrawn from the bank was not paid to the accused and that the amount of Rs.28 lakhs given to the accused was kept in his house, etc. (b) P.W-1 has also admitted that he had entered into Ext.D-1 agreement with the mother of the accused and paid an advance amount of Rs. 20 lakhs to the mother of the accused in the year 2011 and thus the case of the complainant is that he has paid a total amount of Rs.48 lakhs to the accused and his mother from 2011 to 2016. The trial court finds that the said versions of the complainant regarding borrowal of Rs. 28 lakhs are not believable and credible in the absence of any clear materials on record and that if such a case was true, then the same would have been reflected in the bank records of the petitioner, etc. Further, the trial court also found that the material facts regarding the transaction and issuance of the cheque are suppressed in the statutory notice and complaint. What is stated in the statutory demand notice is only that the accused owed a sum of Rs.15 lakhs from to the complainant and he had issued the cheque in discharge of the liability. Nowhere has Crl.L.P.214/17 - : 5 :- the complainant stated therein that the accused had actually borrowed a total amount of Rs. 28 lakhs from the complainant and had issued Rs.15 lakhs in partial discharge of the liability. Nowhere has the complainant stated in the statutory notice that the accused had issued a cheque, which was postdated one. There is no case in the statutory demand notice that the accused had issued another postdated cheque for Rs.13 lakhs to the complainant. The accused had issued reply notice contending that the complainant had hit with a motor cycle on 29.10.2015 and has sustained injuries and a crime case was registered by the Police against the complainant. P.W-1 has admitted about the registration of the case in that regard as C.C.No.39/2016 on the file of the Judicial First Class Magistrate's Court-I, Kozhikode, which was initiated on the basis of an incident, which happened on 29.10.2015. The accused had contended that in view of incident on 29.10.2015, there was no way that he would have voluntarily issued the cheques in question subsequently, especially in view of the strained relationship between the parties and that the case set up is fabricated against the accused, etc. However, more particularly the trial court has found that the details of the transaction such as, dates of borrowal, etc. are not stated in the complaint. The trial court has placed reliance on the decision of the Division Bench of this Court in K.K.Divakaran v. State of Kerala, reported in 2016(4) KLT 233. Paras 18 and 20 of the abovesaid decision read as follows: Crl.L.P.214/17 - : 6 :- “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. **==> picture [162 x 7] 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.” 4. The trial court cannot be found fault with for taking the view that the omission and suppression to state the abovesaid crucial aspects in the demand notice, complaint, etc. are fatal and that the complainant has not established a probable and credible case, etc. 5. In the light of these aspects, this Court is of the considered view that the trial court has arrived at these considered factual findings on the basis of appreciation of evidence and the said view cannot be branded as unreasonable or perverse. Merely because another view is possible, is no ground to interfere with the considered verdict of acquittal. 6. In the case State of Rajasthan v. Darshan Singh @ Darshan Crl.L.P.214/17 - : 7 :- 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 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_ ”. 7. 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 Crl.L.P.214/17 - : 8 :-