Nisha Purushothaman v. Asha K. and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939** ## **Crl.Rev.Pet.No. 689 of 2017 ()** **------------------------------CRL.A.NO. 153/2014 OF ADDL. DISTRICT & SESSIONS COURT - IV, KOLLAM ST.NO. 155/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KOLLAM** ## **---------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------------------------------------** **NISHA PURUSHOTHAMAN,AGED 30, NITHIN NIVAS, NADUVILAKKARA, WEST KALLADA P.O, KOLLAM DIST.** **BY ADVS.SRI.C.RAJENDRAN SRI.C.P.ANIL RAJ** **RESPONDENT(S)/RESPONDENTS/COMPLAINANTS: ---------------------------------------------------------------------------** ## **1. ASHA.K., AGED 30 YEARS,** - **ASHA BHAVAN, THAMPRAVAYAL, T.K.M.C (P.O) KOLLAM - 691 001.** ## **2. THE 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 13-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.689 Of 2017 --------------------------------- Dated this the 13th day of November, 2017. ## O R D E R The petitioner is the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No.155/2012 on the file of the Judicial First Class Magistrate Court-III, Kollam. The trial court as per the impugned judgment rendered on 28.4.2014 had convicted the petitioner for the above said offence and had sentenced her to undergo simple imprisonment for 4 months and to pay fine of Rs.4,20,000/- including interest at the rate of 9% per annum from the date of cheque out of which the complainant is entitled to receive Rs.4,15,000/- as compensation under Sec.357(1)(b) of the Cr.P.C., and in default thereof the accused was sentenced to undergo simple imprisonment for a further period of 3 months. Aggrieved thereby the petitioner had preferred Crl.A.No.153/2014 before the Sessions Court, Kollam. The appellate court concerned (Court of Additional Sessions Judge-IV, Kollam), as per the impugned judgment dated 30.11.2016 had upheld the conviction and the substantive sentence was modified ::2:: Crl.R.P.No.689 Of 2017 and reduced to imprisonment till the rising of the court and the fine amount was also reduced to Rs.3,50,000/- and confirmed the default sentence clause and thus partly allowed the appeal. It is aggrieved by the above said judgments of both the courts below regarding the impugned conviction as well as the sentence, that the petitioner has preferred the instant Crl.R.P taking recourse to the provisions conferred under Sec.397 r/w Sec.401 of the Cr.P.C. 2. Notice sent from this Court to R-1 in the address shown by that party in her complaint has been returned unserved with the endorsement “addressee left and present address not known” and therefore, this Court on 3.10.2017 had directed that the petitioner will take out fresh notice to R-1 through the Inspector of Police of the area concerned to ascertain the present whereabouts and correct address of R-1 and to serve notice in such new address and in case R-1 is not available, the police official should complete the process by affixture in the presence of two witnesses, etc. Now, the Inspector of Police of the area concerned has furnished a report dated 17.10.2017 stating that new address of R-1 could be ascertained and that notice has been duly served on R-1 with proper acknowledgement on 14.10.2017. Registry has also made endorsement dated 19.10.2017 that notice to R-1 thus ::3:: Crl.R.P.No.689 Of 2017 has been duly served. PP has already taken notice for R-2 State and hence service duly completed. 3. Heard C.Rajendran, learned counsel appearing for the revision petitioner (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. Though notice has been duly served on R-1, there is no appearance for that party. 4. The brief of the case of the complainant is to the effect that the complainant and accused were friends and the accused had borrowed Rs.3,50,000/- from the complainant and that in discharge of the said liability, the accused had issued Ext.P-1 cheque dated 18.9.2011 for Rs.3,50,000/- drawn from his account and payable in favour of the complainant, which when presented resulted in dishonour on the ground of “funds insufficient” and thereupon, the complainant has caused to send Ext.P-3 statutory demand notice dated 24.11.2011 under Sec.138 proviso (b) of the N.I. Act calling upon the accused to pay the amount covered by the said cheque within 15 days from the date of receipt of the said notice and that the said notice sent by registered post has been duly served on the accused as evident from Exts.P-4 & P-5 postal receipt and acknowledgement card and since the accused had not paid the amount, the complainant, after adhering to the requisite ::4:: Crl.R.P.No.689 Of 2017 formalities, has instituted the instant complaint, which led to the conduct of the trial in question. During trial, the complainant was examined as PW-1 and marked Exts.P-1 to P-6 documents. The accused was examined as DW-1 and marked Exts.D-1 to D-6 documents. The basic defence set up by the accused is to the effect that there was no transaction whatsoever between the accused and the complainant in the manner as alleged by the complainant and that the husband of the accused had earlier taken Ext.P-1 blank singed cheque from her along with blank signed stamp papers signed by her by convincing that the same is required by him to take loan from some private financial institution and and further that the accused's husband and the complainant are living in adultery and that the accused has produced matrimonial proceedings as per Exts.D-4 and D-6 to prove her case that the relationship between herself and her husband was strained and the marriage between them was legally dissolved through court and the complainant has unlawfully colluded with the accused's husband and has misused the cheque and falsely instituted the present complaint, etc. Among various contentions raised by the accused, she has given emphasis on the following arguments. ::5:: Crl.R.P.No.689 Of 2017 (A) The complaint is fully bereft of any details regarding the nature of transaction and as to when the borrowal transaction has taken place and as to when the cheque has been handed over, etc. Therefore, it is strongly urged by the learned counsel appearing for the petitioner that the accused is entitled for the benefit of acquittal as the complainant has suppressed the vital and material particulars in the complaint. Reliance has been strongly placed on the judgment of this Court in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, wherein it has been held that, 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 filed under Sec.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 will be profitable to refer to paras 18 & 20 of the K.K.Divakaran 's case (supra) 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 ::6:: Crl.R.P.No.689 Of 2017 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 [158 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 is thus contended that the complainant has suppressed crucial and material aspects of the transaction leading to the liability and execution and issuance of the cheque and thus the accused is entitled to the benefit of acquittal in the light of the dictum laid down by this Court in K.K.Divakaran's case (supra). (B) The complainant has miserably failed to produce any material evidence to prove the crucial fact that she had the requisite source of funds to make the borrowal transaction of Rs.3.5 lakhs to the accused. It is pointed out in the light of the dictum laid down by the Apex Court in John K.Abraham v. Simon C.Abraham, reported in (2014) 2 SCC ::7:: Crl.R.P.No.689 Of 2017 236, K.Subramani v. K.Damodara Naidu, reported in (2015) 1 SCC 99 and K.Prakashan v. P.K.Surenderan, reported in (2008) 1 SCC 258, that in order to draw presumption under Sec.118(a) and 139 of the N.I. Act, the burden is quite heavy upon the complainant to prove that he had requisite money to advance the adduced at the relevant time of the transaction in question. Reliance is placed on para 9 of the judgment of the Apex Court in John K.Abraham v. Simon C.Abraham, reported in (2014) 2 SCC 236, which reads as follows: “9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.” Accordingly, it is argued by the counsel for the petitioner that the complainant in this case is not entitled to statutory presumption under Secs.118(a) and 139 of the N.I. Act, as she has miserably failed to prove her source of funds. It is thus argued that in view of that aspect, the complainant is not entitled to get the benefit of statutory presumption and therefore the complainant is under heavy burden to prove her case beyond reasonable doubt and such evidence is lacking in this case. Accordingly, it is argued that the accused is entitled to the benefit of acquittal. ::8:: Crl.R.P.No.689 Of 2017 (C) It is further argued by the petitioner that the very case set up by PW-1 in chief examination to the effect that she had advanced an amount of Rs.3,50,000/- to the complainant on 12.9.2011 with the promise that she should repay the said amount within 3 months thereafter. Ext.P-6 agreement relied on by the complainant is dated 12.9.2011. Ext.P-6(a) does not contain any date. But there is clear mention therein that cheque No.42224 given by the accused will be returned after repayment of the amount. Ext.P-1 cheque is bearing No.42224, which is the same as the one mentioned in Ext.P-6(a). Therefore, it is argued that Ext.P-6(a) itself would probabilise the case of the petitioner regarding the fact that blank signed cheque has been misused, etc. Further, it has been stated that since the version given by PW-1 herself is that the amount was borrowed to be returned within three months from the date of borrowal and as the alleged issuance of the cheque, its presentation and its return and issuance of Ext.P-3 statutory memo are before the expiry of 3 months, etc., would itself discredit and improbabilise the very case set up by the complainant, etc. 5. It is further argued that these crucial contentions of the petitioner have not been considered by the court below in its correct perspective and therefore the impugned judgments of the courts below ::9:: Crl.R.P.No.689 Of 2017 in convicting the accused without taking into account the above said crucial and relevant aspects would thus disclose illegality and impropriety in the rendering of the impugned judgments of the courts below, etc. On considering the above said contention of the petitioner, this Court is of the view that the same would require serious re-look at the hands of the court below. This Court could have remitted the matter to the trial court. But having regard to the delay that may be occasioned due to such remit to the trial court, it is felt that a remit to the appellate would be sufficient in the interest of justice in the facts and circumstances of this case. Accordingly, it is ordered that the appellate court judgment dated 30.11.2016 passed by the appellate Sessions Court concerned in Crl.A.No.153/2014 in this case will stand set aside. Resultantly, it is ordered that Crl.A.No.153/2014 will stand restored to the file of the said appellate court for consideration of the matter afresh. Learned counsel for the accused and the accused will appear before the appellate Sessions Court at 11:00 a.m. on 23.12.2017. If there is no appearance for the complainant on that day, notice my be issued to that party and thereafter the appellate court may fix up a date convenient for both sides and then proceed further with the appeal without any further delay. The appellate court shall not only consider the said contention but also any other contentions that may be raised by ::10:: Crl.R.P.No.689 Of 2017 both parties. Having regard to the fact that the matter has been pending for more than five years, the appellate court should ensure for an expeditious disposal of the case without much delay, at any rate, within a period of 3-4 months from the date of receipt of a copy of this judgment. The petitioner will produce a certified copy of this order before the appellate Sessions Court concerned for expeditious disposal of the appeal as directed hereinabove. With these observations and directions, the Crl.R.P. stands finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.