Saji Mathew v. Jose Joseph & State (Criminal Revision Petition)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939** ## **Crl.Rev.Pet.No. 455 of 2017 ()** **------------------------------CRL.A.NO.3/2015 OF ADDITIONAL SESSIONS COURT - IV, KOTTAYAM ST.NO. 1056/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, PALA** **------------------------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------------------------------------** **SAJI MATHEW, S/O.MATHEW, KALAPURACKAL VEEDU, POOVARANY KARA, POOVARANY VILLAGE, MEENACHIL TALUK.** **BY ADV. SRI.BABY THOMAS** ## **RESPONDENTS/DEFACTO COMPLAINANT AND STATE:** **--------------------------------------------------------------------------------** **1. JOSE JOSEPH, S/O.JOSEPH, KALATHOOR VEEDU, PALLAPPALLY KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK-686 577** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031** **R1 BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J.** ================== ## Crl.R.P.No. 455 of 2017 ================== Dated this the 21[st] day of November, 2017 ## **O R D E R** The petitioner is the accused in Summary Trial Case, S.T.No. 1056/2011 on the file of the Judicial First Class Magistrate's Court-I, Pala, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1[st] respondent herein (complainant). The trial court as per the impugned judgment rendered on 12.12.2014 had convicted the petitioner and had sentenced him to undergo simple imprisonment for 3 months and to pay compensation of Rs.5 lakh (which is the cheque amount) to the complainant under Sec.357(3) of the Cr.P.C and in default thereof, to undergo simple imprisonment for 4 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.3/ 2015 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge-IV, Kottayam). The appellate court as per the impugned appellate judgment dated 9.12.2016 had upheld the conviction, but reduced the substantive sentence to imprisonment till rising of the court and to pay fine of Rs.5 lakhs, in case of payment of which , the same was directed to be paid as compensation to the complainant under Sec. 357(1)(b) of the Crl.R.P.455/17 - : 2 :- Cr.P.C., with the default sentence clause of 3 months' simple imprisonment. It is aggrieved by the said findings of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Sec.397 read with Sec.401 of the Cr.P.C. 2. Heard Sri.Baby Thomas, learned counsel appearing for the revision petitioner (accused), Sri.Mathew John, learned counsel appearing for R-1 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. The brief of the case of the complainant is to the effect that the accused had borrowed amount of Rs. 5 lakhs from the complainant and in discharge of the liability, the accused had issued instant Ext.P-1 cheque dated 11.1.2011 for Rs.5 lakhs drawn from his bank account and payable in favour of the complainant, which when presented, resulted in dishonour, as per Ext.P-2 bank memo dated 25.4.2011 and Ext.P-3 bank memo dated 30.4.2011. Thereupon, the complainant caused to send Ext.P-4 statutory demand notice under Sec.138 proviso (b) of the N.I. Act calling upon the accused to pay off the amount covered by the said cheque within a period of 15 days from the date of receipt of the notice. The said notice sent by registered post was duly served on the accused as per Ext.P-5 postal receipt and Ext.P-6 postal acknowledgment card. The accused had not responded to the said notice and since the amount was not paid, the complainant after Crl.R.P.455/17 - : 3 :- adhering the requisite formalities, has instituted the above complaint, which led to the conduct of the trial. 4. During the trial, the complainant has examined himself as P.W-1 and has marked Exts.P-1 to P-6 documents. The defence has not adduced any oral or documentary evidence. 5. The basic defence set up by the accused during the cross examination of P.W-1 was to the effect that there was a prior transaction by way of lease of buses owned by the accused's father and brother, with the complainant and that the complainant had access to the business office of the accused and his father and he would have unauthorisedly procured the instant Ext.P-1 cheque and has misused the same for the institution of the present complaint, etc. 6. Among the various contentions urged by Sri.Baby Thomas, learned counsel appearing for the revision petitioner (accused), he would emphasis on three contentions, which are as follows: _**(A)** The complaint is absolutely silent about the nature of the transactions between the parties, which led to the liability, the day on which the amount was borrowed by the accused from the complainant, the day on which the cheque has been handed over by the accused to the complainant, etc. The complaint is also silent about the nature and proximity of the relationship between the parties, which induced the complainant to part with such a huge amount of Rs.5 lakhs to the accused, without any security, documentation, receipt, and without charging any interest, etc. The learned counsel for the_ Crl.R.P.455/17 - : 4 :- _accused would strongly urge that in view of the above suppression of the crucial material facts in the complaint, the accused is entitled for the benefit of acquittal in the light of the dictum laid down by this Court in the decision in_ _**K.K.Divakaran v. State of Kerala** , reported in 2016 (4) KLT 233, wherein it has been laid down that the accused in a criminal trial is essentially called upon to answer the gravamen of the charges and allegations in the complaint and that the complaint should contain the relevant and material facts of the alleged transaction, which led to the liability as well as regarding the execution of the cheque, etc., as otherwise the accused will not be properly equipped to defend himself in the criminal trial. This would amount to deprivation of the precious right of free trial. Suppression of material facts relating to the alleged transaction in the complaint, statutory demand notice, etc. has been held to be artifices used by dishonest litigants, with the intention to enable them develop a story after knowing the version that may be put up by the defence. It will be profitable to refer to paras 18 and 20 of the decision in_ _**K.K.Divakaran's case** supra, which read as follows (see KLT report):_ _“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._ _xxx xxx xxx_ _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_ Crl.R.P.455/17 - : 5 :- _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.”_ _Accordingly, it is argued by the learned counsel appearing for the petitioner (accused) that as the complainant has not disclosed crucial and material facts, relating to the transaction, which led to the liability and about the aspects relating to the allegation of execution and issuance of the cheque, etc., the accused is entitled for the benefit of acquittal in view of the decision laid down by this Court in the decision in_ _**K.K.Divakaran's case** supra._ _**(B)** It is further pointed out by the petitioner (accused) that the complainant would project an entirely different case in his complaint filed in this case. In the complaint it is stated that the borrowal of money has taken place between the parties on 11.1.2011 and that even the handing over of the cheque dated 11.1.2011 has also taken place on 11.1.2011. Further it is asserted in the complaint that the accused had clearly represented to the complainant that sufficient money is there as balance in his account as on 11.1.2011 and that it can be encashed by the complainant on any day on or after 11.1.2011. On the basis of these facts projected in the complaint it is argued by the learned counsel appearing for the revision petitioner (accused) that it does not appeal even to the rudimentary aspect of logic and common sense as to why an accused should insist for a personal loan of Rs.5 lakhs to be given on 11.1.2011 when he himself has impressed upon the complainant that the accused has sufficient balance in his own account on 11.1.2011 and that even the handing over of the cheque has taken place on 11.1.2011, which is the same day on the alleged borrowal_ Crl.R.P.455/17 - : 6 :- _transaction has taken place. That such a transaction is ordinarily highly unbelievable and lacks credibility, as otherwise the complainant should have stated in his complaint and should have led evidence as to what are the circumstances, which induced the complainant to believe such a version of the accused that, on the one hand he wanted money on 11.1.2011 and on the other hand, he has handed over a cheque on the very day with the assurance that it can be encashed on any day from 11.1.2011, etc. If, as a matter of fact, the accused has impressed upon the complainant that he has sufficient balance in his bank account even on the day of the borrowal transaction, then ordinarily no reasonable and prudent person standing in the shoe of a person like the complainant, would have parted with money in order to finance a person who himself claims that he has sufficient money in his account on the same day. That no material circumstances whatsoever have been brought in, in the evidence of P.W-1 (complainant) to convince the courts as to what were the circumstances, which led the complainant to part with such a huge amount of Rs. 5 lakhs to the accused on 11.2.1011, who himself has allegedly claimed in the complaint that the accused has sufficient balance in his bank account and that the cheque dated 11.1.2011 was also handed over on the same day. Therefore, it is pointed out that the very version projected in the complaint is bereft of any believability and credibility and raises strong suspicions and doubts about the very veracity of the nature of the case projected by the complainant._ _**(C)** It is further contended by the petitioner that neither the complaint nor the evidence of P.W-1 would disclose any circumstances as to the nature and the proximity of the relationship between the complainant and the accused,_ Crl.R.P.455/17 - : 7 :- _which induced the former to part with such a huge amount of Rs.5 lakhs to the accused without any security, documentation, receipt and without charging any interest, etc. Since the complainant has not brought forth the circumstances, which justified the conduct on the part of the complainant to part with such a huge amount of Rs. 5 lakhs, the entire version projected by the complainant is clouded with suspicion and doubt. That in view of the abovesaid aspects, relating to the very believability and credibility of the complainant's version, strong suspicions and doubts have arisen in the very case projected by the complainant. It pointed out that the Apex Court in the decision in_ _**Vijay v. Laxman & Anr** . reported in (2013) 3 SCC 86, has held that when the basic case set up by the holder of the cheque/complainant itself is dubious, then the initial presumption under Sec.139 of the Negotiable Instruments Act itself comes to an end. This Court has held in the decisions as in_ _**Bhaskaran v. Mohanan** , reported in 2009 (2) KLT 897 that where the materials before the court disclose suspicious circumstances surrounding the transactions, then it is not safe and permissible to render conviction solely on the basis of statutory presumption and the court is expected to examine whether the transaction covered by the cheque is genuine and bona fide, etc._ 7. In the light of these aspects, it is argued vehemently by the petitioner (accused) that since the very case projected by the complainant is bereft of any believability, the accused is entitled for the benefit of acquittal. Alternatively, it is also urged by the petitioner that even if it is assumed for a moment that the complainant could draw the benefit of statutory presumption, still the said presumption could be effectively rebutted by the Crl.R.P.455/17 - : 8 :- petitioner in view of the strong suspicions and doubts, which have arisen in this case due to the aforementioned reasons. Since that is the position, the statutory permission under Sec. 118 (a) and Sec.139 of the N.I. Act will disappear. That going by the inferior standards of proof based on preponderance of probability, the accused has been thus able to strongly rebut the statutory presumption in this case, in view of the abovesaid facts and circumstances. Correspondingly, the complainant was then under a heavy burden to prove his case beyond reasonable doubt and such evidence is fully lacking in the facts and circumstances of this case and therefore it is argued that the accused is entitled to the benefit of acquittal in this case. 8. It is also pointed out that the abovesaid case projected in the complaint should also be evaluated from the point of view of the undisputed fact that Ext.P-1 cheque was presented for collection only on 25.4.2011 as evident from Ext.P-2 memo. If actually, as a matter of fact, the cheque was actually handed over on 11.1.2011 with the assurance that sufficient balance is there in the account of the accused on any day from 11.1.2011 onwards, then certainly it was incumbent upon the complainant to state before the court as to the reasons, which constrained him to present the cheque only after a long period of 3 months. Therefore, all these circumstances, point out that there are strong suspicions and doubts surrounding the entire transaction alleged by the complainant. 9. Per contra, Sri.Mathew John, learned counsel appearing for Crl.R.P.455/17 - : 9 :- the 1[st] respondent (complainant) would argue that the non-disclosure of some of the aspects in the complaint has not caused any serious prejudice to the accused in the facts and circumstances of this case and that the evidence tendered by P.W-1 has been found to be credible and believable by both the courts below and that the abovesaid arguments now projected by the counsel for the petitioner have never been addressed either before the trial court or before the appellate court and have been raised for the first time before this Court in this revision petition. 10. After anxious consideration of the rival pleas in this case, this Court is of the considered view that since the abovesaid contentions of the petitioner have not been considered either by the trial court or by the appellate court, those contentions require a serious re-look at the hands of the courts below. The remit of the matter to the trial court will lead to unnecessary delays and so this Court is of the view that ends of justice would be advanced by remitting the matter to the appellate court for fresh consideration. In this view of the matter the impugned appellate judgment dated 9.12.2016 rendered by the appellate court in Crl.Appeal No. 3/2015 will stand set aside. Resultantly, it is ordered that Crl.Appeal No. 3/2015 will stand restored to the file of the appellate court concerned for consideration of the appeal afresh. The appellate court shall consider the abovesaid contentions of the parties and any other relevant contentions that may be urged by them. Both sides will be at liberty to file argument Crl.R.P.455/17 - : 10 :- notes in the matter, which shall then form part of the records. The counsel for appellant (accused) and learned counsel appearing for the respondent (complainant) shall appear before the appellate court at 11 a.m. on 6.1.2018 on which day, the said court shall fix up a date convenient to both sides and then proceed with the consideration and disposal of the appeal. 11. Having regard to the pendency of the matter since 2011, it is ordered that the appellate court will take all reasonable endeavours possible under the circumstances to ensure that the appeal is disposed of without much delay, preferably within a period of 3-4 months from the date of production of a certified copy of this order. The petitioner will produce a certified copy of this order before the appellate court for further action. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge