Rini Varghese v. Vijuna S/o Jishith

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939** **Crl.L.P..No. 269 of 2017 ()** **----------------------------** ## **PETITIONER/COMPLAINANT:** **-----------------------** ## **RINI VARGHESE** **AGED 50 YEARS, S/O VARGHESE MANI MALAPARAMBA HOUSING COLONY PERUKKUTTY ROAD, CHEVAYOOR AMSOM AND DESOM KOZHIKODE TALUK-673009 (CHEVAYOOR POLICE STATION)** **BY ADV. SRI.M.KRISHNAKUMAR** ## **ACCUSED/RESPONDENTS:** **--------------------** **1. VIJUNA S/O JISHITH, 10/454, "SAIKRIPA" OLAVANNA PO, OLAVANNA AMSOM DESOM KOZHIKODE-673019 (NALLALAM POLICE STATION)** **2. THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, COCHIN. 35** **BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SD** ## ALEXANDER THOMAS , J. - - - - - - - - - - - - - - - - - ## Crl.L.P.No.269 of 2017 - - - - - - - - - - - - - - - - - Dated this the 24[th] day of July, 2017 ## O R D E R This is an application seeking special leave of this Court under Section 378(4) of the Code of Criminal Procedure, 1973 for instituting criminal appeal so as to impugne the judgment dated 19.05.2017 rendered by the Judicial First Class Magistrate CourtXI, Kozhikode in S.T.No.12/2017, alleging the offence punishable under Section 138 of the Negotiable Instruments Act against the 1[st] respondent herein, whereby the accused has been acquitted in the said offence. The petitioner herein is the complainant in S.T.No.12/2017. 2. Heard Sri.M.Krishna Kumar, the learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, the learned Public Prosecutor appearing for the 2[nd] respondent State. 3. The gist of the case of the complainant is that the accused and the complainant were known to each other and that the accused had borrowed an amount of Rs.3 lakhs from the complainant and that later, in discharge of the said debt the 2 Crl.L.P.No.269 of 2017 accused had executed Ext.P2 cheque dated 26.07.2016 for Rs.3 lakhs drawn from her account and payable in favour of the complainant. That the cheque was presented, the same was dishonoured as per Ext.P3 memo, pursuant to which the complainant had issued Ext.P4 statutory demand notice calling upon the accused to pay off the amount covered by the cheque and the said notice was received by the accused as per Exts.P5 and P6. As the accused had not responded to the same by paying off the amount, the complainant has initiated the present complaint which led to the trial. 4. During trial, the Power of Attorney holder of the complainant (who is also the husband of the complainant) had been examined as PW1 and marked Exts.P1 to P6 documents. The defence has adduced evidence through DW1 and DW2 and has marked Exts.D1 to D3 documents. 5. After careful consideration of the evidence adduced and the materials on record, the trial court has come to the conslusion that the accused is entitled to the benefit of acquittal in this case due to the following reasons:- 3 Crl.L.P.No.269 of 2017 (A) The complaint has been filed through the Power of Attorney holder, who happens to be the husband of the complainant. He is an Engineer in the Irrigation Department. The defence had specifically contended that there is absolutely no transaction between the complainant and the accused. It is not in dispute that there are no averments in the said complaint that the Power of Attorney holder has direct knowledge about the transaction in question which led to the liability as well as the execution and issuance of the dishonoured cheque etc. The Apex Court in the judgment in **A.C.Narayanan v. State of Maharashtra [2014(11)** **SCC 790]** has held that a Power of Attorney holder could be allowed to file a complaint and appear and depose on behalf of the complainant, if it is clearly asserted in the complaint that the Power of Attorney holder was personally aware of the transactions or that he is in charge of the business of the complainant etc. It has been specifically held that there should be an explicit assertion in the averments in the complaint as to the knowledge of the Power of Attorney holder about the 4 Crl.L.P.No.269 of 2017 transaction in question etc. Since there are no averments in the complaint that the Power of Attorney holder was aware about the transactions in question, the trial court is fully justified to throw out the case of the complainant and to grant the benefit of acquittal to the accused on this ground alone. (B) The trial court has found that the details of the transactions which led to the borrowal and the liability etc. are not stated anywhere in the complaint. The date of the alleged transaction, the date of the handing over of the cheque etc. are conspicuously stated both in the complaint and in the proof affidavit filed during the examination in chief. There are no averments in the complaint regarding the execution of Ext.P2 cheque. This Court, in the decision in **K.K.Divakaran v. State of Kerala [2016 (4) KLT 233** ], has held that the complaint should disclose the material particulars regarding the transactions which led to the liability for the offence punishable under Section 138 of the Negotiable Instruments Act and failure to omit such crucial details would amount to suppression, that this would deprive the right to fair and free trial of the accused as guaranteed under Article 21 of the Constitution of India, that the case of such a complainant, 5 Crl.L.P.No.269 of 2017 who suppresses crucial aspects, should be thrown out and that the accused is entitled for the benefit of acquittal, etc. It shall be relevant to the court in paragraphs 18 and 20 of the judgment in **K.K.Divakaran v. State of Kerala [2016 (4) KLT 233]** . “ _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_ 6 Crl.L.P.No.269 of 2017 _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.”_ Therefore, the trial court cannot be faulted for having found that the complainant has suppressed crucial and relevant facts regarding the transaction in question and that the accused is entitled for such benefit of acquittal. (C) Though the case setup in the complaint is that it was the complainant who had given money to the accused, it has come out in evidence that the case projected by PW1 (Power of Attorney holder/the complainant's husband) is that the moneys were advanced by him directly to the accused. So, this would clearly show that there was a substantial divergence in the case set up in the complaint, in comparison to the evidence adduced through PW1. 7 Crl.L.P.No.269 of 2017 This has also constrained the trial court to view the entire allegations made in the complaint with great amount of suspicion and the trial court cannot be found fault with for finding that the version of the complainant is not a believable and credible one. - (D) The trial court found that no evidence has been let in by the complainant to prove the source of fund at the time of the borrowal of the money allegedly given to the accused. The Apex Court, in the judgment in **John K.** ## **Abraham v. Simon C. Abraham & Another[(2014) 2** **SCC 236]** , has held that for drawing the benefit of the statutory presumption under Section 118(a) and Section 138 of the Negotiable Instruments Act, the burden is heavy of the complainant to prove his source of funds at the time of the alleged borrowal. The view in this regard has again been reiterated by the Apex Court in **K.** **Subramani v. K.Damodara Naidu [(2015) 1 SCC 99]** . In the light of these legal principles, the trial court cannot be said to have committed any illegality or impropriety in 8 Crl.L.P.No.269 of 2017 taking the view that the complainant's version lacks credibility and believability in as much as the complainant could not prove her source of funds at the time of the alleged borrowal of money to the accused. So, the trial court is justified in holding that the complainant cannot get the statutory presumption under Section 118(a) and Section 138 of the Negotiable Instruments Act, in view of these aspects. - (E) The trial court found that the evidence given by DW1 need not be doubted and that the evidence of DW2 would show that he has seen DW1 obtaining signed blank stamp papers and cheques from the accused, in the office of DW1. The trial court also noted that though DW2 has been cross examined intensely, nothing was brought out to discredit his evidence and that there are no circumstances to doubt the veracity of the evidence tendered by DW2. The trial court also, on an overall assessment of the evidence, came to the conclusion that the case of the defence is consistent and stable. In the 9 Crl.L.P.No.269 of 2017 light of all these aspects, the trial court has found that the version of the complainant is not credible and probable, whereas the defence version was found to be believable and credible. 6. In view of these findings of facts that the trial court has found that the accused is entitled for the benefit of acquittal. These findings of facts made by the trial court cannot be said to be unreasonable, perverse or illegal. Merely because of another view is plausible, is not a valid ground by itself to disturb a considered judgment of acquittal rendered in favour of the accused. ## 7. In the case _**State of Rajasthan v. Darshan Singh @ Darshan Lal**_ reported in _**2012 (4) Supreme 72 = (2012) 5 SCC 789**_ , the Apex Court has held as follows : _“24...........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.”_ 10 Crl.L.P.No.269 of 2017 8. Further, in the case _**Pudhu Raja and another v. 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.”_ Even if the appeal is entertained in this case, there is no much reasonable scope for reversing the impugned judgment of acquittal. Therefore, this Court is not inclined to grant leave in this petition and so the petition seeking special leave of this Court stands dismissed. Sd/ALEXANDER THOMAS JUDGE sd // True Copy // P.A. to Judge