N.S. Chandra Choodan v. State of Kerala and Mini Praveen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939** ## **Crl.Rev.Pet.No. 1299 of 2016 ()** ## **-------------------------------ST.NO. 76/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, THIRUVANANTHAPURAM CRL.A.NO. 141/2015 OF ADDL.DISTRICT & SESSIONS COURT - V, THIRUVANANTHAPURAM** **---------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **---------------------------------------------------------------------** **N.S.CHANDRA CHOODAN, ANITHA BHAVAN, KALLAMBALAM, THIRUVANANTHAPURAM.** ## **BY ADVS.SRI.GOPAKUMAR R.THALIYAL SRI.T.S.RAJASENAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **-------------------------------------------------------------------------------------** ## **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** ## **2. MINI PRAVEEN,** **P.G.NIVAS, NAVAIKULAM, KALLAMBALAM, NAVAIKULAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695 603.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY R2 BY ADVS. SRI.SHAMMI VIJAYAN SMT.K.P.SANTHI** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.R.P.No.1299 of 2016 ----------------------------------------Dated this the 12[th] day of June, 2017 ## _**O R D E R**_ The revision petitioner is the accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.76 of 2010 on the file of the Judicial First Class Magistrate Court-VI, Thiruvananthapuram, instituted on the basis of a complaint filed by the second respondent herein. 2. The trial court, as per the impugned judgment rendered on 6.5.2015, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo imprisonment till the rising of the court and to pay compensation of Rs.7,00,000/- to the complainant under Section 357(3) of the Cr.P.C. and in default of payment of compensation, the accused was ordered to undergo simple imprisonment for a period of six months. 3. Aggrieved thereby the petitioner had preferred Crl.Appeal No.141 of 2015 before the Sessions Court, Thiruvananthapuram. The appellate court concerned (Court of the Additional Sessions Judge-V, Thiruvananthapuram), as per the impugned judgment rendered on Crl.R.P.No.1299/16 : **:2::** 30.6.2016, had dismissed the appeal confirming the conviction and sentence imposed by the trial court . 4. It is challenging these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C. 5. Heard Sri.Gopakumar R.Thaliyal, learned counsel appearing for the revision petitioner/accused, Sri.Shammi Vijayan, learned counsel appearing for R2/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State. 6. The gist of the prosecution case is that for discharging a debt of Rs.7,00,000/- owed by the revision petitioner/accused to the complainant, the revision petitioner/accused had issued Exhibit P1 cheque dated 30.10.2016 for Rs.7,00,000/- drawn from his account and payable in favour of the complainant and that the cheque when presented resulted in dishonour. Exhibit P3 statutory demand notice dated 25.1.2007 was issued by the complainant calling upon the accused to pay the abovesaid amount covered by the cheque within 15 days from the date of receipt of that notice. Though the said notice was received as per Exhibit P4, there was no reply and after complying with the requisite statutory formalities, the complainant had initiated the Crl.R.P.No.1299/16 : **:3::** present complaint which resulted in the trial. 7. During trial, the complainant has examined herself as PW1 and the prosecution has marked Exhibits P1 to P4 documents. The defence has adduced oral evidence of DW1 to DW3 and has produced Exhibits D1 to D3 series of documents. 8. Both the learned Advocates appearing for the rival parties have been heard. Sri.Gopakumar R.Thaliyal, learned counsel appearing for the revision petitioner/accused, among the various contentions raised, would pointedly focus on the following contentions which are noted herein below. _The evidentiary materials on record would clearly show that the statutory presumption envisaged under Section 139 of the Negotiable Instruments Act has not been attracted in the instant case. Further, learned counsel for the petitioner would also contend that even if it is assumed that as the signature in the cheque is not disputed and as the cheque pertains to the account of the accused, the statutory presumption under Section 138 of the Negotiable Instruments Act could be drawn in the facts and circumstances of this case, but that the said presumption stands rebutted due to the following aspects : The case of the complainant is that the accused was known closely to her father as the accused was running a_ Crl.R.P.No.1299/16 : **:4::** _financial firm which had later run into great financial difficulties and had also some transactions with her father. When the accused had sought a personal loan of Rs.7,00,000/-, the complainant had raised the said money and had given it to the accused. Out of the said amount, Rs.4,00,000/- was received by the complainant during the sale of her car and another Rs.3,00,000/- was raised by her from her uncle and the abovesaid total amount Rs.7,00,000/- was given as personal loan to the accused. Later, the accused in discharge of his liability had issued the cheque in question which was dishonoured. It is pointedly argued that it has clearly come out in evidence that the financing firm run by the accused had run in great financial difficulties and that he had to abandon his place of business and had to go into hiding as many of the depositors were making protest for immediate refund of all their moneys. The accused has a case that Exhibit D1 cheque also shows that he had only transactions with the complainant's father and not with the complainant and that all moneys owed to the complainant's father on account of the transactions with the financing Company of the accused, were paid by the accused to her father and that the entire liabilities owed by the accused to the complainant's father in the abovesaid financial transactions with this financial firm, was duly cleared by him as per Exhibit D1 cheque dated 25.8.2006 for_ Crl.R.P.No.1299/16 : **:5::** _Rs.1,50,000/- which was fully encashed by the complainant's father and there was no other liability. Before the commencement of the financial transaction, the complainant's father had taken a blank singed cheque from the petitioner as security and Exhibit D1 cheque issued by the wife of the accused for Rs.1,50,000/- was duly encashed by the complainants father etc. The encashment of Exhibit D1 cheque dated 25.8.2006 for Rs.1,50,000/- is clearly admitted. That the accused has raised serious challenge regarding the very financial capability of the complainant to raise such a huge amount for Rs.7,00,000/- and that it has come out in evidence that the complainant was only a student at the time of transaction. Though she has stated that she raised Rs.4,00,000.by selling a car and that another 3,00,000/- was raised from her Uncle for the purpose of advancing the same to the accused, no evidentiary material in that regard has been produced by the complainant to even remotely probablise such a version. In this regard, the petitioner’s counsel would place reliance on the judgment of the Apex Court in_ _**John K.Abraham v. Simon C.Abraham**_ reported in **(** _**2014) 2 SCC 236 = 2014 (1) KLT 90 (SC)** wherein it has been held that where the financial capacity of the complainant is disputed then the complainant is bound to prove_ Crl.R.P.No.1299/16 : **:6::** _the factum of his financial capacity to raise the amount which is said to have been given as loan to the accused and that this is necessary for entitling the complaint to draw the presumption under Section 139 of the Negotiable Instruments Act. Therefore, it is contended that as the financial capacity has not been proved, the case of the complainant lacks credibility or probability. Further the complainant has admitted that the financial firm of the petitioner/accused had run into great financial difficulties and that various creditors were pursuing him. DW3 who was a creditor of the accused has deposed that the financing firm of the petitioner had run into difficulties, etc. Exhibits D2 to D3(a) to D3(f) series of documents would show that there was no financial transaction done by the petitioner's financing firm. That the alleged borrowal of the amount of Rs.7,00,000/- by the accused from the complainant is said to be on 30.10.2006. At that point of time, it was well known to the complainant's father, as well as the complainant and various members of the locality that the petitioner had run into deep financial difficulties and that he was not thereafter running the business of the financing firm and that no ordinary prudent person would have given such a huge personal loan amount of Rs.7,00,000/- to a person like the accused who was already in deep financial problems and that at any rate any ordinary prudent person_ Crl.R.P.No.1299/16 : **:7::** _would have taken a receipt in the presence of witnesses to evidence any such payment and that these circumstances clearly show that the very version projected by the complainant is highly improbable and lacks credibility regarding the very nature of the transaction alleged by her._ 9. On a perusal of the impugned judgments of both the courts below it is seen that both the courts below have failed to consider the abovesaid serious contentions raised by the petitioner. Merely because the complainant would contend that she is entitled for the benefit of the statutory presumption, is it not the end of the matter and the trial court and the appellate court were under the bounden judicial duty to examine whether these facts and circumstances which have indisputably arisen from the evidence of the complainant as well as the defence evidence has effectively rebutted the statutory presumption drawn in this case. Failure to assess these crucial and relevant aspects of the matter, amounts to shutting out the crucial and relevant evidentiary aspect and serious illegality that has been committed by both the courts below. 10. The petitioners’ counsel would also contend that the statutory demand notice as well as the complaint are conspicuously Crl.R.P.No.1299/16 : **:8::** silent about the details of the alleged transaction, as to when exactly the cheque was handed over by the complainant to the accused and that the failure to disclose this crucial and relevant aspect would amount to suppression of crucial facts and that it would amount to depriving the accused to a fair trial and that by itself should be sufficient to throw out the complaint and entitling the accused for acquittal in the light of the ruling of this Court in the judgment in _**Divakaran v. State of Kerala**_ reported in _**(2016 (4) KLT 233)**_ . It will be profitable to refer to paragraphs 18 and 20 of the said decision of this Court, which read as follows : - _“18. Before she filed the complaint the second respondent sent Exhibit 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._ _19. xxxxxx_ _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.”_ Crl.R.P.No.1299/16 : **:9::** 11. It is also contended by the petitioner’s counsel that DW2 Bank official has clearly deposed that there has been material alteration in the dishonoured cheque and that DW2 has also deposed that even if there was sufficient funds in the account, the cheque was liable to be rejected due to such material alteration. It is contended that these crucial aspects have not been taken into consideration by both the courts below in the correct perspective. It is further argued by the petitioner that these aspects should also be seen and evaluated from the facts and circumstances narrated earlier herein above which would highly improbalise the very version of the complainant regarding the borrowal transaction. It is also pointed out that it has come out in defence evidence that Exhibit P1 cheque was issued in 1990’s. (1999 or period prior thereto) and that this aspect of the matter has also not been taken into consideration by the trial court and that this crucial aspect would also reinforce the case of the petitioner which throws serious questions regarding the very credibility of the version projected by the prosecution. It is thus argued that the very nature of the transaction alleged by the complainant lacks credibility and probability and that the statutory presumption under Section 139 of the Negotiable Instruments Act stands thus effectively and strongly rebutted and after such rebuttal, the presumption itself disappears and as the complainant Crl.R.P.No.1299/16 : **:10::** has not adduced any evidence to prove her case, the accused is entitled for acquittal. 12. Learned counsel appearing for the second respondent/complainant has also urged various contentions in the matter. 13. On a consideration of the matter, this Court is of the view that the abovesaid contentions raised by the revision petitioner requires serious reconsideration at the hands of at least the appellate Sessions Court. Though this Court is inclined to remit the matter to the trial court, it is seen that much time may be lost if it is so remitted and therefore, balancing the interest of both sides, this Court is of the view that the matter should be at least remitted to the appellate court. In this view of the matter, the impugned appellate judgment dated 30.6.2016 in Criminal Appeal No.141 of 2015 will stand set aside and the said Criminal Appeal will stand restored to the file of the Appellate Sessions Court concerned (Court of Additional Sessions Judge V, Thiruvananthapuram. 14. Learned counsel for the appellant/accused and learned counsel appearing for the respondent/complainant should appear before the appellate Sessions Court at 11 A.M. on 31.7.2017 on which day the appellate court will fix up a date which is convenient to both sides and Crl.R.P.No.1299/16 : **:11::** should endeavour to finally dispose of the matter, after hearing both sides, without much delay and at any rate within a period of 3 to 4 months from the date of production of a certified copy of this judgment. The contentions raised by the appellant and the rival contentions raised by the respondent/complainant should be considered in depth by the appellate court and a decision shall be rendered in the matter within the time frame as indicated herein. Both sides will be at liberty to give their written submissions in the matter. With these observations and directions, the Criminal Revision Petition stands finally disposed of. **ALEXANDER THOMAS JUDGE** csl