P.T. Cheriyan v. Noble and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF AUGUST 2017/15TH PHALGUNA, 1927** ## **Crl.L.P..No. 287 of 2017 ()** ## **----------------------------** ## **AGAINST THE JUDGMENT IN ST 1333/2015 of JUDICIAL FIRST CLASS MAGISTRATE COURT(TEMPORARY), KADAKKAL.** **------------------** ## **PETITIONER(S)/COMPLAINANT: ----------------------------------------------** **P.T.CHERIYAN, AGED 47, S/O. P.T THOMAS, GEO BHAVAN, EDAMULACKAL P.O KOLLAM.** ## **BY ADV. SRI.SAJU J PANICKER** ## **RESPONDENT(S)/ACCUSED & STATE:** **-------------------------------------------------------** ## **1. NOBLE,** **AGED 56,S/O. ITTICHERIYA, KALAPPILA HOUSE, EDAMULAKKAL P.O,' ANCHAL KOLLAM.** ## **2. THE STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.** ## **R2 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 22-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** ## ALEXANDER THOMAS, J. -------------------------Crl.L.P. No. 287 of 2017 ------------------------------Dated this the 22[nd] day of August, 2017 ## ORDER This is an application seeking special leave of this Court under Section 378(4) of Cr.P.C., for filing Crl.Appeal so as to impugn the judgment dated 09.06.2017 rendered by the Judicial First Class Magistrate (Temporary), Kadakkal, whereby the accused in S.T.No.1333/2015 has been acquitted for the offence punishable under Section 138 of NI Act. Petitioner herein is the complainant and the 1[st] respondent herein is the accused in the above said S.T No1333 of 2015. 2. Heard Sri.Saju J. Panicker, learned counsel appearing for the petitioner and Sri.Jestin Mathew, learned Public Prosecutor for R2/State. 3. The gist of prosecution case is that, the complainant and the accused are neighbours and family friends and that on 18.03.2010, the accused has borrowed an amount of Rs.3,00,000/-from the complainant and in Crl.L.P. No. 287 of 2017 2 discharge of the said liability the revision petitioner/accused had issued Ext.P1 cheque dated 12.11.2010 for Rs.3,00,000/-, drawn from the account of the accused payable in favour of the complainant. The cheque, when presented, was dishonoured due to insufficiency of funds. The basic defence set up by accused is to the effect that on 20.05.2007, he had borrowed Rs.2,50,000/- from one Sri.P.G.Thomas, father of the present complainant with an interest at Rs.6/- per month for Rs.100/- and he defaulted the payment of interest, the father of the present complainant had filed four criminal cases and one civil suit against the accused and all cases were settled and were withdrawn by the father of the complainant. Later the father of the complainant had demanded more interest, which was refused by the petitioner and one cheque which was retained by him has been misused by his son (present complainant), for filing the instant complaint etc. 4. The trial court has held that the accused is entitled to get benefit of acquittal due to the following Crl.L.P. No. 287 of 2017 3 reasons: (A).It was found by the trial court that the complainant has failed to prove the source of funds for advancing such a huge amount of Rs.3,00,000/- to the complainant at the relevant time. The only evidence rendered by PW1 was his oral evidence that he had taken a loan from State Bank of Travancore for Rs.9,00,000/- during 2010, which was business overdraft. Except the said oral assertion made by the complainant, he has not adduced any documentary evidence to prove the crucial fact that he had sufficient funds at the relevant time for advancing such a huge amount of Rs.3,00,000/- to the complainant. The trial court found that, if as a matter of fact the complainant had availed an overdraft loan from the State Bank of Travancore, in 2010, then it would have been very easy for him to produce documentary evidence in that regard to prove that crucial aspect, and that, Crl.L.P. No. 287 of 2017 4 failing to do so would amount to withholding the best evidence in the possession of the complainant. It has been held by the Apex Court in John K.Abraham v. Simon C. Abraham and another (2014) 2 SCC 236, has held that in order to draw the statutory 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 the requisite funds for having advanced the money to the accused in the borrowal transaction. Similar view has been reiterated by the Apex Court in the judgment in K.Subramani v. K.Damodara Naidu (2015) I SCC 99, K.Prakashan v.P.K.Surendran (2008) 1 SCC 258. In these circumstances, the trial court cannot be found fault with for having taken the view that the complainant is not entitled to draw the benefit of statutory presumption under Section 118(a) read with Section 139 of the NI Act, Crl.L.P. No. 287 of 2017 5 as he had failed to adduce convincing materials before the trial court, that he had sufficient funds at the relevant time to make the advance of such a huge amount of Rs.3,00,000/- to the accused at the relevant time. (B).The trial court noted that the very case of the complainant is that he had availed an overdraft loan from State Bank of Travancore for Rs.9,00,000/- in 2010 and that for the said loan amount he had to pay interest to the Bank. The trial court found it highly suspicious that an ordinary prudent person standing in the shoe of the complainant would have advanced such a huge sum of Rs.3,00,000/- without any interest to the accused, if PW1 has deposed that he had given interest free loan to the accused at a time when he had been paying interest to State Bank of Travancore on the said overdraft account and that the said act is against any natural conduct of Crl.L.P. No. 287 of 2017 6 human behaviour. The trial court also found that the conduct of the complainant in giving such a huge amount without any security, documentation or receipt and without charging any interest, would raise serious doubts and suspicion about the credibility of the complainant's case and it will not be safe for the trial court to impose conviction on the accused, on the basis of such evidence tendered by the complainant, which is tainted by suspicion and which lacks credibility. During the trial, the defence has marked D1 to D13 documents, which are pertaining to the four criminal cases and one civil suit filed by Sri.P.G.Thomas, the father of the present complainant against the present accused. The trial court also found that all cases except one were settled and that the case of the accused is that the complainant's father had one of the blank signed cheque given by the accused and that the same has Crl.L.P. No. 287 of 2017 7 been misused by the present complainant, who is the son of the said person. The trial court cannot be found fault with for having taken the view that the circumstances which is evident from D1 to D13 documents would establish a probable case on the part of the accused that the cheque could have been misused as stated by him. (C).In the complaint, it has been alleged that the accused had came to the house of the complainant for borrowing the money and for executing the cheque etc. Whereas in evidence DW1 has deposed that the accused had come to his shop and had borrowed money and handed over the cheque etc. These discrepancies has also led the trial court to hold that the case build up by the complainant is tainted with suspicious circumstances and that it lowers the credibility and believability of the very version projected by the complainant etc. 5. In the light of all these aspects, the trial court has Crl.L.P. No. 287 of 2017 8 come to the conclusion that the accused is entitled for the benefit of acquittal. The said view rendered by the trial court cannot be said to be grossly perverse, unreasonableness or illegal. 6. 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.” 7. 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”. Crl.L.P. No. 287 of 2017 9 In the light of these aspects, this Court is constrained to take the view that even if the appeal is entertained, there is no such scope to overturn the considered judgment of acquittal rendered by the trial court. The petition is bereft of any merit and the same is dismissed. sd/ALEXANDER THOMAS, JUDGE /TRUE COPY/ P.A.TO JUDGE AMV/11/09/2017