Padmanabhan v. State of Kerala and Ousephunni

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939** **Crl.Rev.Pet.No. 1525 of 2014** **-------------------------------------------** **AGAINST THE JUDGMENT IN CRL.A.NO. 311/2012 OF THE SESSIONS COURT, THRISSUR DATED 17-07-2014** **AGAINST THE JUDGMENT IN C.C.NO. 178/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD DATED 18-05-2012** **-------------** ## **REVISION PETITIONER(S)/APPELLANT/ ACCUSED :** **----------------------------------------------------------------------------** **PADMANABHAN, AGED 54 YEARS, S/O. APPUKKUTTAN, ATHANIKKAL HOUSE, THALAKKOTTUKARA DESOM, CHIRANELLOOR VILLAGE, THRISSUR DISTRICT 680 501.** **BY ADVS. SRI.PRASUN.S SRI.PAUL MATHEW (PERUMPILLIL)** ## **RESPONDENT(S)/STATE AND COMPLAINANT :** **---------------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN- 682 031,** **2. OUSEPHUNNI, AGED 59 YEARS, S/O. ITTYSAN, PURATHOOR HOUSE, THIRUVENKIDAM DESOM, GURUVAYUR, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN- 680 101.** - **R1 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW R2 BY ADV. SRI.RAJIT** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## ALEXANDER THOMAS, J. ------------------------ Crl.R.P. No. 1525 of 2014 ----------------------------Dated this the 25[th] day of July, 2017 ## ORDER The petitioner is the accused for offence punishable under Section 138 of the Negotiable Instruments Act, in C.C.No.178 of 2010 on the file of the Judicial First Class Magistrate Court, Chavakkad, instituted on the basis of a complaint filed by the 2[nd] respondent herein. 2. The trial court as per the impugned judgment rendered on 18.05.2012 has convicted the petitioner for the aforesaid offence and sentenced to undergo simple imprisonment for one year and to pay Rs.1,00,000/- as compensation to the complainant under Section 357 (3) of the Code of Criminal Procedure, and in default thereof to undergo simple imprisonment for a further period of four months. Aggrieved thereby the petitioner had preferred Crl.Appeal No.311 of 2012 before the Court of Sessions Judge, Thrissur. The appellate Sessions Court as per the impugned judgment rendered on 17.07.2014 has confirmed Crl.R.P. No. 1525 of 2014 2 the conviction and modified the substantive sentence of simple imprisonment for one year by reducing the same to imprisonment till rising of the court and in substitution of the amount of compensation, an amount of fine for the same amount of Rs.100,000/- has been imposed and default sentence clause was reduced to two months. The fine amount so realised was directed to be disbursed to the complainant as compensation under Section 357(1)(b) of Cr.P.C. It is aggrieved by these verdicts of both the courts below, the petitioner has preferred the instant revision petition by invoking the remedies under Section 397 and 401 of Cr.P.C. 3. Heard Sri.S.Prasun, learned counsel appearing for the revision petitioner/accused, Sri.Rajit, learned counsel appearing for 2[nd] respondent/complainant and Sri.Jestin Mathew, learned Public Prosecutor for 1[st] respondent/State. 4. The gist of the case projected in the complaint is to discharge a debt owed by the accused to the complainant, the revision petitioner/accused had issued Crl.R.P. No. 1525 of 2014 3 Ext.P1 cheque dated 31.12.2009 for Rs.1,00,000/- drawn through his account and payable in favour of the complainant. The cheque when presented was dishonoured as per Exts.P2 and P3 bank memos on the ground of insufficiency of funds. Thereupon the complainant had caused to issue Ext.P4 statutory demand notice dated 16.01.2010 calling upon the accused to pay off the amount within a period of 15 days from the date of receipt of the said notice. The said notice sent by registered post was received by the accused as per Exts.P5 and P6. The accused had sent a reply notice as per Ext.P7 contending that, denying the transactions alleged by in the demand notice and taking up the defence that the instant cheque was given by the accused to the complainant as signed blank one for security for some other transaction between the parties. 5. During the trial the complainant was examined as PW1 and marked Exts.P1 to P7 documents. The defence has not adduced any oral or documentary evidence. 6. After hearing both sides in extenso and on going Crl.R.P. No. 1525 of 2014 4 through the depositions and materials on record this Court is of the considered view that relevant and material aspects of the matter in favour of the accused, has been shut out by both the courts below and that such non consideration of crucial and material aspects in the matter has resulted in a grave illegality and impropriety in the rendering of the impugned judgments of both the courts below. This Court is of the considered opinion that, the factual findings made by the courts below convicting the petitioner, would amount to perversity and unreasonableness. Both the courts below have erred egregiously in convicting the petitioner for the aforesaid offence. The reasons, for the said conclusions of this Court, are as follows:- (A) The bald case set up by the 2[nd] respondent complainant in his complaint is that the revision petitioner was purportedly in acquaintance of the complainant and had allegedly entered into a previous transaction, but the transaction or its nature are neither pleaded nor brought out in evidence. Further it is stated that the complainant Crl.R.P. No. 1525 of 2014 5 had advanced some amount to the accused. The quantum of the amount so advanced, nor the time during which the said money has been advanced to the accused etc., are conspicuously omitted to be stated in the complaint. No evidence has been let in by the PW1 complainant to even state as to how that amount was advanced by him to the accused. The date on which the borrowal has taken place is neither stated in the statutory demand notice nor in the complaint or the proof affidavit. It is only at the late stage of cross examination, the complainant would venture to state that he had handed over the amount to the accused sometime in the year 2000 and that he had later demanded the repayment only in the year 2010, pursuant to which the accused had voluntarily come forward to execute the instant case etc. Therefore, even going by the projected version in the statutory demand notice, complaint and proof affidavit, it can be seen that there is absolutely nothing on record to show or even prima facie establish that there indeed existed a previous transaction between the accused and the Crl.R.P. No. 1525 of 2014 6 complainant and as to when the transaction had taken place and as to when the money has been advanced by the complainant to the accused etc. The pleadings and the evidence brought on record does not even reveal if there are any witnesses to the aforesaid previous transaction between the accused and the complainant. The complaint, statutory demand notice and proof affidavit of the complainant are conspicuously silent on all these crucial and relevant material aspects. Further in its evidence, the complainant has categorically deposed the court below as follows:¥ÈcÞÏJßW ÉùE Ø¢·ÄßµZ ÎÈTßÜÞAßÏßGáIí.ådÉÄß ¥Ïºî ÎùáÉ¿ß çÈÞGàØí ÎÈTßÜÞAßÏßGáIí.åÄáµ ®LÞÕÖcJßÈÞÃí æµÞ¿áJæÄKí ¥ÈcÞÏJßÜá, ¥ËßÁßÕßxßÜᢠÉùEßGßÜï.å®Õßæ¿ æÕºîí Äáµ ÈWµß ®Kí ÉùEßGßÜï. ®dÄ Äáµ ÈWµß ®Kí ÉùEßGßÜï ®Kí ¥ÈcÞÏJßÜᢠ¥ËßÁÕßxßÜᢠÉùEßGßæÜïCßW ²KᢠÉùÏÞÈßÜï.åÄáµ ®BßæÈ ÈWµß ®Kᢠ¥ÈcÞÏJßÜᢠ¥ËßÁÕßxßÜᢠÉùEßGßÜï.å2000_W ¦Ãí Äáµ ÈWµßÏÄí.å2010_W Äßøßæµ çºÞÆߺîá.å§Äí ¥ÈcÞÏJßW ÉùEßGßæÜïCßW ²KᢠÉùÏÞÈßÜï' further PW1(complainant) stated as follows, Äáµ ÈWµß ®Kí µÞÃßAáKÄßÈí çø¶µZ ÙÞ¼øÞAßÏßGßÜï.å¥Äí Crl.R.P. No. 1525 of 2014 7 µIÄßÈí ØÞfßµZ ©Ií.å¥Õøáæ¿ çÉøí ÕßÕø¢ çµÞ¿ÄßÏßW ÈWµßÏßGßÜï.åØÞfßµZ ©Ií ®Kí ¥ÈcÞÏJßW ÉùEßGßÜï. Therefore the aforesaid depositions of PW1could clearly show that he has no reason to offer as to why the aforesaid crucial material and factual aspects have been omitted to be mentioned in the complaint and in the proof affidavit. Though he has a case that there are witnesses to handing over the money to the accused, he has no reasons as to why such persons were not being examined as witnesses. Further PW1 has also stated that “Äáµ ÈWµß ®Kí µÞÃßAáK çø¶µZ ÙÞ¼øÞAßÏßGßÜï **”** . Thereby PW1 has clearly admitted that he has not adduced any material evidence to show the borrowal transaction. In the decision rendered by this Court in Divakaran v. State of Kerala 2016 (4) KLT 233 = 2016 (4) KHC 901 has held that neither the nature of the transaction nor the transaction between the parties or the date of issuance of the cheque is mentioned in the notice and the complaint, it can be said that said suppression of material facts related to the alleged transaction has been Crl.R.P. No. 1525 of 2014 8 done with a view to develop a story after knowing the defence that is being set up by the opposite parties. This Court held that such material suppression of facts could be fatal to the case of the complainant. It has been held by this Court that in a criminal trial an accused is called upon only to defend the gravamen of the specific charges and allegations raised in the complaint and if the nature of the allegations, which led to the liability in question for offence under Section 139 of NI Act are not disclosed by stating its material particulars, then it would create a situation whereby the accused will not be in a position to know what exactly he has to defend in the criminal trial. Such a situation would lead to violation of the right to fair and free trial guaranteed to an accused under Article 21 of the Constitution of India. In the light of this aspect this Court has held that the case of complainants, which are vitiated by suppression of material facts, are liable to be thrown out and that the accused is entitled for the benefit of acquittal. It will be profitable to refer to paragraphs 18 and 20 of the Crl.R.P. No. 1525 of 2014 9 ## 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.” In the light of these aspects, both the courts below have omitted to take into consideration these crucial and relevant aspects of the matter relating to the suppression of material facts in the complaint, this Court is of the firm opinion that both the courts below have erred egregiously in this regard Crl.R.P. No. 1525 of 2014 10 and the conviction of the petitioner on the basis of the findings made by both the courts below would amount to perversity and illegality. Therefore, this Court is constrained to take the view that the accused is entitled for the benefit of acquittal in the light of these aspects. (B) The pleadings and the evidence would clearly show that no pleadings or evidence whatsoever have been let in by the 2[nd] respondent/complainant to show that he was having source of sufficient funds to advance the amount of Rs.1,00,000/- to the accused. It is also relevant to know that the pleadings and evidence on record are conspicuously silent as to the quantum of the sum of money which was previously advanced to the revision petitioner. It is only in the cross examination that PW1 would venture to depose that he could raise the money by pledging the gold ornaments of his daughter and further that he has not produced any documentary evidence to show that the said pledging was done. He has further deposed that he has been doing collection work in an Urban Co-operative Bank Crl.R.P. No. 1525 of 2014 11 and that his monthly salary is in the range of Rs.3,000 - 3,500/- and that he has no other income. It is also stated that his family consists of his wife and children and that it is only on the basis of the above said income that his family subsisting and he has no other income to make savings. He has also stated that in 2008 - 2009 he did not have any surplus funds in his hands. It is only in the re-examination, he would state for the first time that he had retired from a Panchayat office and that he is a pensioner in that regard. But no evidence whatsoever has been let in either about his income in the Urban Co-operative Bank or the fact that he is a pensioner from the Panchayat service and as to the amount of monthly pension that he is receiving. It is surprising to know that for the first time PW1 has deposed about his retirement from Panchayat service only in a reexamination and no reference to that aspect that he made either in the complaint or in the chief examination or the cross examination. Therefore, it is crystal clear that the complainant could not adduce any material evidence to Crl.R.P. No. 1525 of 2014 12 show that he indeed had the source of funds to advance the money to the accused for the borrowal transaction. The period during which the money was advanced has not been stated anywhere in the demand notice or complaint or in the proof affidavit. For the first time only in the cross examination that the alleged borrowal transaction took place in the year 2000. No evidence has been let in by the complainant to prove that he had access of Rs.1,00,000/at the relevant time in the year 2000. The Apex Court in the judgment in John K.Abraham v. Simon C. Abraham and another (2014) 2 SCC 236 has held that in order to draw the presumption under Section 118(a) read with Section 139 of the Negotiable Instruments Act, the burden is heavily upon the complainant to prove that he had requisite funds for having advanced the money to the accused in the borrowal transaction. Similar view has been taken by the Apex Court in the case in K.Subramani v. K.Damodara Naidu (2015) I SCC 99. Since the complainant has not adduced any evidence whatsoever to prove his source of Crl.R.P. No. 1525 of 2014 13 funds, it is only to be held that he is not entitled to draw the benefit of statutory presumption under Section 118(a) read with Section 139 of the NI Act. Moreover the complainant has not let in any evidence to prove his basic case regarding the transaction, which led to the liability and about the execution and issuance of the dishonoured cheque in question. 7. In the light of all these aspects, the only conclusion that could have been raised by a court of law is that the complainant has miserably failed to prove his case and that the accused is entitled for the benefit of acquittal. Therefore, both the courts below erred gravely in convicting the petitioner in the aforesaid offence. 8. In this view of the matter, this Court is of the considered view that the impugned judgment warrants interference at the hands of this revisional court and accordingly impugned judgments of both the courts below are set aside. The accused is acquitted of the offence under Section 138 of NI Act and he is set at liberty. Crl.R.P. No. 1525 of 2014 14 9. Sri.S.Prasun, learned counsel for the revision petitioner/accused would submit that the amount of Rs.10,000/- was deposited by the petitioner in this case before the trial court at the stage of the appellate consideration and further an amount of Rs.25000/- was also been deposited before the trial court in relation to this case at the time of consideration of this revision. If that be so, the trial court will take immediate steps to release those amounts to the revision petitioner/accused, if a request in that regard is made by him. With these observations and directions, the revision petition stands finally disposed of. sd/ALEXANDER THOMAS, JUDGE AMV/26/07/2017 /TRUE COPY/ P.A.TO JUDGE