Sajimon v. Pratheesh Kumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939** ## **Crl.L.P..No. 400 of 2017 ()** **----------------------------** ## **ST.NO. 5059/2011 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PUNALUR.** **-----------------** ## **PETITIONER(S)/COMPLAINANT:** **---------------------------------------------** **SAJIMON,AGED 42 YEARS, S/O.UNNUNNI, KOCHUKONATHU PUTHEN VEEDU, AYIKARA P.O., ANCHAL.** ## **BY ADV. SMT.S.S.MEERA** ## **RESPONDENT(S)/ACCUSED & STATE:** **------------------------------------------------------** **1. PRATHEESH KUMAR,AGED 28 YEARS,** **S/O.KRISHNANKUTTY NAIR, PRIYA VILASOM, ATTINAKKARA, VILUMALA, KULATHUPUZHA-691 310.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY ADVS. SRI.ANIL K.MOHAMMED SRI.V.S.MANSOOR** **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** ## **ALEXANDER THOMAS, J.** ================== Crl.L.P.No. 400 of 2017 ================== Dated this the 10[th] day of October, 2017 ## **J U D G M E N T** This is a petition seeking special leave of this Court under Sec. 378(4) of the Cr.P.C. to file criminal appeal so as to impugn the judgment dated 25.2.1016 of the trial court concerned (court of Judicial First Class Magistrate-I, Punalur), whereby the accused in S.T.No. 5059/2011 has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. The petitioner herein is the complainant in S.T.No. 5059/2011 and the 1[st] respondent herein is the accused therein. 2. Heard Smt.S.S.Meera, learned counsel appearing for the petitioner (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-2 State. 3. The brief of the case of the complainant is to the effect that the complainant and the accused were friends and that, at the request of the accused, the complainant had advanced a loan of Rs.1,50,000/- and in discharge of the said liability, the accused had issued Ext.P-1 cheque dated 22.9.2011 for Rs. 1,50,000/- drawn from his account and payable in favour of the complainant and that the cheque when presented, resulted in Crl.L.P.400/17 - : 2 :- dishonour. After adhering to the procedural formalities in that regard, the complainant had instituted the present 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.P1 to P-6 documents. The defence has adduced oral evidence through D.W-1 and D.W-2. No documents have been marked on the side of the defence. 5. The trial court has found that the complainant has satisfied all the requisite procedural formalities for initiation of the present complaint. However, the trial court has found that there is no sufficient and convincing evidence to convict the accused and thus acquitted the accused in view of the following reasons: **(A)** The trial court has found that the the complainant has failed to prove the crucial aspect that he had requisite source of funds at the relevant time for advancing money to the accused in the borrowal transaction in question. It has been held by the Apex Court in the decisions as in _**John K Abraham v. Simon C. Abraham,**_ reported in 2014 (2) SCC 236, _**K.Subramani v. K. Damodara Naidu,**_ reported in (2015) 1 SCC 99, etc. that in order to draw the benefit of the statutory presumption under Sec. 118(a) and Sec. 139 of the Negotiable Instruments Act, the burden is heavily upon the complainant to show that he had requisite funds for having advanced the money to the accused at the time of the borrowal Crl.L.P.400/17 - : 3 :- transaction. Therefore, the trial court has found that the complainant is not entitled to draw the benefit of the statutory presumption of Sec. 118(a) and Sec. 139 of the Negotiable Instruments Act in the facts and circumstances of the case. **(B)** The trial court has also found that the complaint is conspicuously silent about the nature of the transactions, date and place of lending of the money by the complainant to the accused as well as the date and place of the issuance and handing over of the cheque by the accused to the complainant. It has been held by this Court in _**K.K.Divakaran v. State of Kerala**_ , reported in 2016 (4) KLT 233, 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. This Court has clearly held that the doors of criminal courts should be closed to such fortune seekers, etc. It will be profitable to refer to paras 18 and 20 of Crl.L.P.400/17 - : 4 :- ## the decision in _**K.K.Divakaran's case**_ supra, which read 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._ **==> picture [158 x 6] intentionally omitted <==** _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.”_ Therefore, the trial court cannot be blamed for having taken the view that that the accused is entitled for the benefit of acquittal in view of serous of suppression of material facts in the complaint. **(C)** The trial court has also found that no justifying circumstances have been brought in evidence to convince the court as to the reasons, such as, which induced the complainant to part with such a huge amount of Rs. 1,50,000/- to the accused without any security, receipt, documentation and without charging any interest. Accordingly, the trial court has found that the version given by the complainant that he had advanced such a huge amount without any security or receipt or documentation, etc. is not probable and that no convincing circumstances have been adduced by way Crl.L.P.400/17 - : 5 :- of evidence before the trial court for believing the said version of the complainant. The Apex Court has held in the decisions as in _**Vijay v. Laxman & Anr**_ . reported in (2013) 3 SCC 86, 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. In the light of these aspects, the view of the trial court cannot be seriously found fault with. **(D)** The defence set up by the accused was to the effect that he had subscribed to chitties with the complainant and when he bid the chitties, the complainant had obtained seven blank signed cheques as security from him and that he repaid the chit amount, except Rs. 7,000/- and that he had later closed his shop in locality and gone to Bangalore and that the accused misused one of blank singed cheques for filing the instant complaint, etc. In order to prove the said defence case, the accused has examined D.W-1 and D.W-2 . D.W-1 has deposed that the accused has conducted CD shop in her building and he vacated it about 10 years back and D.W-2 has deposed Crl.L.P.400/17 - : 6 :- that he was conducting the business in the shop room of D.W-1 and that he took over the business from one Sri.Hamsa and that before that, the accused was conducting the CD shop there. The trial court noted that though D.W-1 and D.W-2 were subjected to intense cross examination, nothing has been brought out to discredit them. During cross examination P.W-1 has admitted that between the 2005 and 2015 he was conducting chitty institutions at Kulathupuzha, Madathra and Anchal and according to him, the accused had subscribed two chitties and repaid the entire amount. The abovesaid admission of P.W-1 coupled with the improbabilities in his case and the evidence of D.W-1 and D.W-2 were taken by the trial court to hold that it casts serious doubt with regard to the very transaction alleged by the complainant and that it probabilised the defence case, etc. 6. It is in the light of these factual findings that the trial court has come to the considered conclusion that the accused is entitled to the benefit of acquittal. The said findings of facts cannot be said to be perverse or illegal. Merely because another view is plausible, is no ground to interfere with the considered verdict of acquittal. 7. 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_ Crl.L.P.400/17 - : 7 :- _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_ ”. 8. 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 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. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge