Ponnamma Sasidharan Madathipparambil v. Indira Bhai and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** **Crl.L.P..No. 215 of 2017 () ----------------------------** **ST 43/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHENGANNUR.** **.......** ## **PETITIONER/COMPLAINANT:** **-----------------------** **PONNAMMA SASIDHARAN MADATHIPARAMBIL HOUSE, MUNDENCAVU PO., CHENGANNUR, ALAPPUZHA (DT).** ## **BY ADV. SRI.P.VINODKUMAR** ## **RESPONDENTS/ACCUSED & STATE:** **----------------------------** **1. INDIRA BHAI, ANANDHABHAVAN PAUMALA MURI, KADAPRA PO., ALAPPUZHA DT., PIN-688001.** **2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 27-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.L.P.No.215 of 2017 ----------------------------------------Dated this the 27[th] day of June, 2017 ## _**JUDGMENT**_ This is an application seeking special leave of this Court in terms of Section 378(4) of the Cr.P.C. for instituting Crl.Appeal, so as to challenge the judgment dated 27.4.2017 of the trial court concerned (Court of the Judicial First Class Magistrate Court-I, Chengannur) whereby the accused/R1 therein has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner herein is the complainant in S.T.No.43 of 2016. 2. Heard Sri.P.Vinod Kumar, learned counsel appearing for the petitioner/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R2/State. 3. According to the complainant, she is having close acquaintance and friendship with the accused for the last many years and that taking advantage of this, the accused had requested for an amount of Rs.45,00,000/- to meet her immediate financial commitments and so, the complainant had given Rs.45,00,000/- to the accused. The accused had issued Exhibit P1 cheque dated 4.8.2014 for Rs.45,00,000/- drawn from the account of the accused, payable in favour of the complainant, which when presented resulted in dishonour. Crl.L.P.No.215/17 : **:2::** After complying the statutory formalities, the complaint has been filed, which resulted in the instant trial. 4. During the trial, the complainant has examined as PW1 and has marked Exhibits P1 to P6. The defence has adduced oral evidence to DW1 and DW2 and has marked Exhibit D1 and Exhibit D2 documents. 5. The basic defence case set up by the accused is that on an earlier occasion her husband had borrowed an amount of Rs.6,00,000/from the complainant and at that time, her husband had executed Exhibit D2 promissory note dated 6.6.2012 promising that he would repay an amount of Rs.11lakhs within a period of 1½ years to the complainant and further that six blank signed cheques of the accused herein was then handed by her husband to the complainant as security for that transaction. The amount was repaid within two years, but as the amount could not be repaid within the agreed time limit of one half years, the complainant had demanded more interest over which the disputes arose. The complainant did not return any of the blank signed cheques for the accused and one of the said cheques has been misused for filing the present complaint with a false allegation that the accused herein had borrowed Rs.45,00,000/- and that she had executed and issued the abovesaid cheque, etc. 6. The accused was examined as DW1. She deposed that : **:3::** Crl.L.P.No.215/17 she has been working as a collection agent in the post office and that she used to go to the house of the complainant for taking collection. The complainant is engaged in money lending business. The husband of the accused was examined as DW2 who deposed that he had borrowed an amount of Rs.6,00,000/- from the complainant on 6.6.2012 and that he had executed Exhibit D2 promissory note, etc., promising to repay the total amount of Rs.11lakhs within 1½ years and that Exhibit D2 promissory note was written in his own handwriting, etc. and further that six blank signed cheques of the accused were also entrusted to the complainant at that time as security. 7. As the accused has admitted that the signature in the cheques belonging to her and that the cheques have been issued from her account, the complainant could draw upon the benefit of statutory presumption under Section 139 of the Negotiable Instruments Act, in the light of the legal principles laid down by the decision of the Apex Court as in _**T.Vasanthakumar v. Vijayakumari**_ reported in _**(2015 (8) SCC 378)**_ . However, the trial court has also taken the considered view that in the facts and circumstances of this case, the accused could strongly and effectively rebut the statutory presumption due to the following aspects : 8. PW1 has candidly admitted in her evidence that she does not have any income and she is not a tax payer. She further admitted : **:4::** Crl.L.P.No.215/17 that she is only a house wife. She would further add that the amount available with her was left behind by her husband and such amount was given to the accused. Further It is added that the accused is not her relative and that she is having only a friendship with the accused for the last 22 years and when the accused and her husband came to her house and demanded Rs.45,00,000/-, she had given a cheque to them. Later, when confronted to the question whether the cheque was given to them on the same date, PW1 (complainant) would depose that the amount was given as cash and not by cheque. That amount was given to her by her children and it was withdrawn from the Federal Bank, Chengannur Branch. In spite of specific challenge as to whether PW1 could produce the Bank records showing withdrawal of the amount, the complainant has not bothered to produce any Bank records. The inconsistent stand taken by PW1 regarding the source of her funds and the non production of the Bank accounts were held to be fatal to the prosecution case. The trial court held that it is highly incredible and unbelievable that a house wife with no income could advance the huge amount of Rs.45,00,000/- and that too, to a collection agent of the post office. Further the complainant was not able to say whether for what purpose the amount was advanced to the accused other than the vague statement that the amount was given for her immediate financial difficulties. Crl.L.P.No.215/17 : **:5::** 9. The Apex Court in the decision in _**John K.Abraham v. Simon C. Abraham**_ reported in (2014) 2 SCC 236, held that the complainant should be able to prove the source of money and financial capacity at the time of the relevant transaction of the alleged borrowal, in order to draw the benefit of statutory presumption under section 139 of the Negotiable Instruments Act. In these circumstances, the trial court cannot be faulted for holding that the complainant could not prove her financial capacity and source of funds to advance such a huge amount of Rs.45,00,000/-, to the accused. Moreover, the complainant could not prove that she had close and proximate relationship with the accused so as to advance such a huge amount of Rs.45,00,000/- without any receipt or written agreement or security. These are all held to be the circumstances which improbablise the version of the complainant about advancing such a huge amount. In this context, it is relevant to note that DW-1 (accused) and DW-2, could place reliance on Exhibit D-2 promissory note executed on 6.6.2012 for a previous transaction of Rs.6,00,000/-. This would show that the complainant would not have parted with such a huge amount of Rs.45,00,000/-, without any written documents or at least security, etc. That apart, during cross examination, the complainant has admitted the previous transaction with the accused and has also not disputed Exhibit D-2 promissory note. For the first time that the complainant would apprise the court and that too, : **:6::** Crl.L.P.No.215/17 at the stage of cross examination that the amount of Rs.45,00,000/was given to the accused on 4.8.2014 and that the amount was withdrawn from the Bank 4 or 5 days prior to the date of transaction. The complainant was specifically asked as to why such a huge amount was not given by way of cheque or demand draft, she replied that she does not remember the reasons for it. According to PW-1, the amount, date, name of the payee in Exhibit P-1 cheque and the signature were all entered by the accused. Later, when PW-1/complainant was questioned, as to who had written the amount and date in Ext.P-1 cheque, she turned around and replied that the entries were made by the husband of the accused and it was signed by the accused, etc. These inconsistent changing stands of PW-1 would also clearly show that her version is not believable and credible. Moreover, since the complainant has admitted the previous transaction in terms of Exhibit P-2, this would also broadly probablise the believability of the defence version. Further, the demand notice, complaint and proof affidavit, are bereft of any relevant and material particulars regarding the transactions, which led to the issuance of the cheque and about the execution of the cheque, etc. Even in the evidence given by PW-1, she would change her stand on many crucial aspects. 10. This Court has held in the decision in _**K.K.Divakaran v. State of Kerala**_ , reported in **2016 (4) KLT 233** that an accused is : **:7::** Crl.L.P.No.215/17 essentially called upon in a criminal trial to answer only the gravamen of the charges and allegations raised in the complaint and that non-disclosure of crucial and relevant aspects in respect of the transaction which led to the issuance of the dishonoured cheque, would seriously deprive the right to free trial of the accused, as he will not be in a position to know as to what exactly are the allegations that he/she has to meet in the trial. Moreover, it would give a handle to the complainant to wait and watch for knowing the stand of the defence and then shape up the case of the complainant, etc. It would be pertinent to refer to paragraphs 18 and 20 of the decision of this Court in ## _**K.K.Divakaran's case,**_ which reads 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 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. ………… 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 : **:8::** Crl.L.P.No.215/17 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 all these aspects, the trial court cannot be faulted for having come to the considered conclusion that the accused has rebutted the statutory presumption and that the complainant could not prove her case. Those findings of facts, which led to the acquittal of the accused cannot be said to be perverse or unreasonable. 11. In the case _**State of Rajasthan v. Darshan Singh @ Darshan 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_ ”. 12. 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 : **:9::** Crl.L.P.No.215/17 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. Sd/- **ALEXANDER THOMAS JUDGE** csl