Sameer s/o Mohammedali v Abdul Kareem 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.Rev.Pet.No. 29 of 2017 ()** **------------------------------** **CRA 269/2014 OF ADDITIONAL SESSIONS COURT - III, MANJERI ST 1297/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1,TIRUR** **-----------** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------** **SAMEER, S/O.MOHAMMEDALI, AGED 44 YEARS, MUNDEKKAT HOUSE, TIRUR AMSOM DESOM.** **BY ADVS.SRI.ABDUL JALEEL.A SMT.M.A.SULFIA** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **--------------------------------------** **1. ABDUL KAREEM, AGED 44 YEARS, S/O.KOYAMU HAJI, IRUMBUZHIYIL HOUSE, PONMUNDAM AMSOM DESOM, TIRUR TALUK** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY ADV. SRI.U.K.DEVIDAS R2 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ALEXANDER THOMAS, J. ================== Crl.R.P.No. 29 of 2017 ================== Dated this the 27[th] day of June, 2017 O R D E R The petitioner is the accused in Summary Trial Case, S.T.No. 1297/2012 on the file of the Judicial First Class Magistrate's Court-I, Tirur, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1[st] respondent (complainant). The trial court as per the impugned judgment dated 21.7.2014 had convicted the petitioner and had sentenced him to undergo imprisonment till rising of the court and to pay an amount of Rs.10 lakhs to the complainant under Sec.357(3) of the Cr.P.C and in default thereof, the petitioner was sentenced to undergo simple imprisonment for 4 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.269/2014 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge-III, Manjeri). The appellate court as per the impugned appellate judgment dated 4.11.2016 had upheld the conviction and had also confirmed the sentence, thereby dismissed the appeal. It is aggrieved by the said concurrent 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 Smt.M.A.Sulfia, learned counsel appearing for the Crl.R.P.29/17 - : 2 :- revision petitioner (accused), Sri.U.K.Devidas, learned counsel appearing for R-1 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 3. During the trial, the complainant has examined himself as P.W-1 and has marked Exts.P-1 and P-8 documents. The defence has not adduced any oral or documentary evidence. More crucially, the defence has not even subjected the complainant (P.W-1) to cross examination. 4. The gist of the allegations in the complaint is that the accused had owed an amount of Rs.10 lakhs to the complainant and had issued the instant cheque dated 10.7.2012 for Rs.10 lakhs drawn from his account in favour of the complainant and that cheque when presented, was dishonoured on the ground of insufficiency of funds. Thereupon the complainant had sent Ext.P-4 statutory demand notice dated 4.8.2012 calling upon the accused to pay the amounts covered by the cheque within 15 days from the date of receipt of the notice. Even though the said notice was received by the accused on 7.8.2012, he has not paid any amount or has sent any reply. Accordingly, after complying with the statutory requirements, the complainant has instituted the present complaint, which has resulted in the trial. 5. During the trial, P.W-1 (complainant) has deposed broadly in tune with the contents of his affidavit. When the turn for cross of P.W-1 had arisen, the counsel for the complainant had appraised the court that Crl.R.P.29/17 - : 3 :- the defence is not cross examining the complainant. Since the trial court has found that, based on the available evidence, the statutory presumption under Sec.139 of the N.I. Act could be drawn by the complainant in this case. Further that since the defence had not subjected the complainant to cross examination, and the defence had not adduced any independent evidence it was held that the accused has not rebutted the statutory presumption and therefore is liable to conviction under Sec.138 of the Negotiable Instruments Act. The trial court has also found that the statutory formalities have been properly complied with by the complainant. The appellate court has also fully concurred with the abovesaid findings of the trial court. 6. Earlier this Court had passed order on 6.2.2017 directing suspension of the impugned sentence in this case and that the petitioner should deposit Rs.2 lakhs before the trial court within one month. Later at the request of the petitioner, this Court had passed order dated 20.3.2017 extending the time limit for payment of the said amount of Rs.2 lakhs before the trial court, upto 26.5.2017. Later the petitioner's counsel appraised this Court that the petitioner has not deposited the said amount before the trial court so far, in view of his financial difficulties, etc. 7. Earlier during the course of the arguments, the learned counsel appearing for the revision petitioner (accused) submitted on the Crl.R.P.29/17 - : 4 :- basis of the instructions of her party that, the learned Advocate, who had appeared for the accused before the trial court, had made specific request by filing an application for adjournment of the case when the case came up for cross examination of P.W-1 and the said request was denied by the trial court and that the learned Magistrate has recorded as if there was “no cross”. In the light of this submission, this Court had passed order on 30.1.2017 directing the Registry to get a report from the trial court concerned (Judicial First Class Magistrate's Court-I, Tirur), which dealt with S.T.No.1297/2012 and as to whether the counsel for the accused had made a request for adjournment, when the case was taken up for cross examination of P.W-1 and whether the said request was denied or not, etc. and further that if a formal application had been submitted by the learned counsel appearing for the accused for the said purpose, a copy of the same should also be made available by the learned Magistrate along with the said report. The said order passed by this Court on 30.1.2017 reads as follows: “Issue notice before admission to R1 complainant, returnable within two weeks. Notice before admission to R2 State is taken by PP. 2. Smt.M.A.Sulfia, learned advocate appearing for the revision petitioner/accused, submits on the basis of instructions of the party that the learned Advocate who appeared for the accused before the trial court had made a specific request by filing an application for adjournment of the case when the case had come up for cross examination of PW1 and that the said request was denied and the learned Magistrate has recorded as if there was “no cross” of PW1 by the counsel for the accused, etc. 3. In these circumstances, the Registry will get a report from the Judicial First Class Magistrate Court-I, Tirur, which has dealt with S.T.No.1297/2012, as to whether the learned counsel appearing for the Crl.R.P.29/17 - : 5 :- accused had made a request for adjournment when the case was taken up for cross examination of PW1 and whether the said request was denied etc. If a formal application had been submitted by the learned counsel appearing for the accused for the said purpose, a copy of the same should be forwarded by the learned Magistrate along with a copy of the report. The report in this regard should be furnished by the learned Magistrate within five days' time. Until the next posting date, the execution of the impugned sentence will stand deferred. List the matter on 6.2.2017 for consideration of the report of the learned Magistrate.” 8. In compliance with the above direction issued on 30.1.2017, the Judicial First Class Magistrate's Court, Tirur, has furnished a report dated 3.2.2017, addressed to the Registry of this Court. In the said report, it is stated that the accused had appeared before the trial court on 19.6.2013 and from 20.6.2013 for the next posting dates, the accused continuously absent, but he was represented by a counsel and that the complainant was present till the stage of Sec.313 Cr.P.C. questioning process. Further that on 5.10.2013, the complainant had filed affidavit in lieu of chief examination and he was examined as P.W-1 and Exts.P-1 to P-8 were marked. Cross examination was adjourned to 19.10.2013. On 19.10.2013, P.W-1 was present, but accused was absent and the case was adjourned for cross examination on 30.11.2013. On 30.11.2013 also the accused was absent and P.W-1 was present. Cross examination was adjourned to 7.12.2013. On 07.12.2013 also the accused was absent and the complainant was present. Defence counsel sought time for cross examination. Cross examination was adjourned on payment of cost of Rs.800/- and case was posted on 31.12.2013. On 31.12.2013 also, the Crl.R.P.29/17 - : 6 :- accused was absent and the complainant was present. On that occasion, the defence counsel reported, “no cross”. Accordingly, the trial court was constrained to close the evidence and then posted the case for questioning of the accused under Sec.313 Cr.P.C. Further it is stated that on perusing the records, Criminal Miscellaneous Petition No.9686/2013 was filed by the counsel for the accused on 7.12.2013, by which adjournment for one week was sought for. On that day, the case was adjourned for cross examination by imposing cost of Rs.800/- and posted on 31.12.2013. On 31.12.2013, the defence counsel reported “no cross” and no further evidence and therefore, evidence was closed. The case was posted for Sec.313 Cr.P.C. examination on 4.1.2014, 5.7.2014 and 7.7.2014. On 7.7.2014, the accused was present and he was questioned under Sec.313 Cr.P.C. and on 11.7.2014 both sides were heard and after two postings, the judgment was pronounced on 21.7.2014, etc. 9. Therefore, from a perusal of the abovesaid detailed report dated 3.2.2017, furnished by the trial court, it can be seen that the abovesaid allegations made on behalf of the revision petitioner are bereft of any merit and that in spite of that ample opportunities, the accused had not utilized the same and ultimately on 31.12.2013, the counsel for the defence had submitted that the defence is not cross examining P.W-1. Therefore, the trial court cannot be found fault with in any manner Crl.R.P.29/17 - : 7 :- for having recorded the submission of the defence counsel regarding that “no cross” of the complainant. 10. Faced with the situation, Smt.M.A.Sulfia, learned counsel appearing for the revision petitioner (accused) would submit that the statutory demand notice and complaint are bereft of any relevant factual particulars regarding the transactions and about the issuance and execution of the dishonoured cheque in question, etc. and that the accused is entitled for acquittal in the light of the legal principles laid down by this Court in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233. In the said judgment this Court has held in paras 18 and 20 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 [162 x 7] 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.” Crl.R.P.29/17 - : 8 :- On the basis of the abovesaid decision of this Court in K.K.Divakaran's case supra, Smt.M.A.Sulfia, learned counsel appearing for the revision petitioner accused would contend that even if the defence has submitted that the complainant is not being cross examined, still the criminal court is under the obligation to examine whether the complaint is liable to be thrown out and the accused is entitled to the benefit of acquittal in view of the crucial suppression of facts by the complainant. It is true that even if the accused has not cross-examined by the prosecution witnesses, the criminal court is under the judicial obligation to examine whether there are any major inconsistencies or contradictions in the evidence given by the complainant and whether there are intrinsic circumstances which would go to belie the very factual version projected by the complainant or as to whether there are any other legal impediments, which would stand in the way of the successful prosecution of the accused, etc. and if it is so found, then the criminal court is obliged to take into account the said crucial aspects and in such scenario, the trial court has to take into account such crucial aspects of the matter and the same cannot be brushed aside merely on the ground that the accused has not cross examined the complainant's witnesses. Such a scenario would be in rare and exceptional cases. In the facts and circumstances of this case, the complainant has put forward a case that the accused had borrowed an amount of Rs.10 lakhs from him and in repayment of the said personal Crl.R.P.29/17 - : 9 :- loan, the accused had voluntarily issued and executed the cheque in question for Rs.10 lakhs, which was dishonoured, etc. Even if the notice and complaint have not disclosed all the relevant aspects of the complaint, then it was for the accused to avail the benefit of cross examination of P.W-1 and to challenge the veracity of those factual allegations made by the complainant and in the absence of such a challenge, it can only be held that the accused has accepted the said evidence tendered by the complainant. The learned counsel appearing for the revision petitioner accused has not been able to establish convincingly before this Court that there are any intrinsic factual circumstances in this case, which would go to belie the very veracity of the complainant's case or which would go to the very root of the prosecution case. In these circumstances, the trial court and the appellate court have rightly concluded that in view of the fact that the accused has not cross examined P.W-1, he has accepted the evidence of P.W-1 and therefore, it is only to be held that the case of the complainant stands thus proved. 11. In these circumstances, this Court is not in a position to interfere with those considered findings of facts rendered by both the courts below regarding the conviction of the petitioner for the offence under Sec. 138 of the Negotiable Instruments Act. As far as the issue of sentence in this case, it is seen that even the trial court has imposed only Crl.R.P.29/17 - : 10 :- the substantive sentence of imprisonment till rising of the court and to pay Rs.10 lakhs (which is the cheque amount) as compensation to the complainant under Sec.357(3) of the Cr.P.C. with a default clause of 4 months' simple imprisonment. The appellate court has fully concurred with the said impugned sentence. The said sentence imposed by the courts below cannot be said to be excessive or disproportionate. Though the Apex Court has held that for offence under Sec. 138 of the N.I. Act, the trial court could award interest upto 9% p.a. from the date of the cheque till the realisation, the courts below have taken a lenient approach in waiving interest and even the substantive sentence has been confined only to imprisonment till rising of the court. For all these reasons, this Court is not in a position to interfere with the said sentence. However, in the interest of justice it is ordered that taking into account the fact that the compensation amount is Rs. 10 lakhs, the petitioner is given time by 10 months to pay the compensation amount of Rs.10 lakhs directly to the complainant. Accordingly, the following orders and directions are issued: - (i) The impugned conviction imposed on the petitioner for the offence under Sec.138 of the Negotiable Instruments Act will stand confirmed. - (ii) The petitioner is given 10 months time from 1.7.2017 to pay the compensation amount of Rs. 10 lakhs. . - (iii) The revision petitioner will be at liberty to pay the amount directly the complainant. On payment of the amount, the complainant will issue receipts to the accused so that the accused can produce the same before the trial court to satisfy the said court about payment of the amount. - (iv) The petitioner shall appear before the trial court at 11 a.m. on 5.5.2018 Crl.R.P.29/17 - : 11 :- to receive the sentence of imprisonment till rising of the court and to satisfy the said court about the payment of the compensation amount. - (v) On default of payment of the said amount as directed above, the petitioner will have to undergo to simple imprisonment for four months as ordered by the courts below. - (vi) Until 5.5.2018 all further coercive steps taken against the petitioner in pursuance of the execution of the impugned sentence will stand deferred. - (vii) On default of the petitioner either to appear before the trial court on 5.5.2018 or on default in paying the abovesaid amount, the trial court will be at liberty to proceed against the petitioner, in accordance with law. 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