Sarath Sadanandan v. Sini Kamal and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 26TH DAY OF JULY 2017/4TH SRAVANA, 1939** **Crl.L.P..No. 267 of 2017 ()** **---------------------------ST 135/2015 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA** **------PETITIONER/COMPLAINANT:-:** **----------------------** ## **SARATH SADANANADAN,** **AGED 31 YEARS, S/O.SADANANDAN, SARATH NIVAS, MALLASSERY P.O., PRAMADOM VILLAGE, PATHANAMTHITTA, PRESENTLY RESIDING AT S S COTTAGE (SARATH NIVAS),VYALA VADAKU, NARIYAPURAM P.O., VALLIKODU VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SUDHARMA SADHANANDAN, AGED 47 YEARS, W/O.SADHANANDAN, S S COTTAGE, SARATH NIVAS, VYALA VADAKU, NARIYAPURAM P.O., VALLIKODU VILLAGE.** **BY ADV. SRI.M.T.SURESHKUMAR** ## **RESPONDENTS/ACCUSED & STATE:-:** **---------------------------** ## **1. SINI KAMAL,** **AGED 45 YEARS, PARAYIL PUTHEN VEEDU, CHENGARA P.O., MALAYALAPPUZHA, PATHANAMTHITTA - 689 664.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALETTY** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 26-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ALEXANDER THOMAS, J. ================== Crl.L.P.No. 267 of 2017 ================== Dated this the 26[th] day of July, 2017 J U D G M E N T This is an application filed by the complainant seeking leave of this Court under Sec.378(4) of the Cr.P.C. to file criminal appeal so as to impugn the judgment dated 14.6.2017 rendered by the trial court concerned (Court of Chief Judicial Magistrate's Court, Pthanamthitta), whereby the accused in S.T.No.135/2015 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.135/2015 and the 1[st] respondent herein is the accused in that case. 2. Heard Sri. M.T.Suresh Kumar, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. In the nature of the order that is proposed to be passed in this petition, notice to R-1 (accused) will stand dispensed with. 3. The gist of the case of the complainant is that, in discharge of a debt owed by the accused to the complainant, the accused had issued the instant Ext.P-1 cheque dated 30.12.2014 for Rs.3 lakhs drawn from his account and payable in favour of the complainant. That the cheque when presented, was dishonoured as per Ext.P-2 memo dated 14.1.2015 on the ground of insufficiency of funds. Thereupon, the complainant had issued Ext.P-3 statutory demand notice dated Crl.L.P.267/17 - : 2 :- 20.1.2015, under Sec.138 proviso (b) calling upon the accused to pay off the amount covered by the cheque within a period of 15 days of receipt of the said notice. The said notice sent by registered post was duly served on the accused as per Exts.P-4 and P-5. The accused did not respond to the same and since the amount was not paid, the complainant, after following the requisite procedures, has filed the instant complaint, which led to the trial. 4. During the trial, on the strength of the power of a attorney, the mother of the complainant has been examined as P.W-1. The complainant has not directly adduced evidence in this case. Exts.P-1 to P-6 documents have been marked. The accused herself has examined as D.W-1. 5. After meticulous analysis of the evidence and other materials on record, the trial court has rendered its considered judgment acquitting the accused on the following grounds: (A) The complaint is conspicuously silent about the material particulars and crucial factual aspects relating to the transaction between the parties including the date of borrowal, the transactions, which transpired before the borrowal as well as the issuance of Ext.P-1 cheque and the date of issuance of the same, the date on which the cheque was handed over, etc. The statutory demand notice is also silent about all these aspects. What has been stated in the complaint regarding the Crl.L.P.267/17 - : 3 :- transaction is only as follows: “ _For a legally enforceable debt due to the complainant, the accused issued a cheque described hereunder to the complaint_ .” The basic elementary background facts, which led to the transaction and about the incurring of the debt and the liability, have not been mentioned anywhere in the complaint. This Court in the judgment in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, has held that nondisclosure of the crucial and relevant aspects in the complaint would amount to suppression of material facts on the part of the complainant, which would deny fair and reasonable opportunity to the accused to defend himself in the trial. The statutory demand notice and the complaint set in motion by the complainant, on the basis on which the accused is called upon to defend himself on the gravamen of charges and allegations raised against him. If the material particulars of the very transactions are suppressed, such non-disclosure would amount to deprivation of the right to free trial guaranteed to an accused under Article 21 of the Constitution of India. It will be profitable to refer to paras 18 & 20 of the decision of this Court 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 Crl.L.P.267/17 - : 4 :- 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 [161 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.” In the light of the above said decision, the trial court cannot be found fault with for taking the considered view that suppression of the material facts in the complaint would lead to the acquittal of the accused. (B) The trial court has found that no material evidence has been let in by the complainant to prove the source of funds at the relevant time to advance such a huge amount of Rs.3 lakhs to the accused. The complainant has not given any evidence and it is his mother, who has orally asserted about the complainant’s financial status. No material evidence has been let in to prove the crucial aspects relating to the source of funds, on the basis of which, the complainant had advanced Rs.3 lakhs to the accused. The Apex Court in the decision in John K.Abraham v. Simon C.Abraham reported in (2014) 2 SCC 236 = 2014 (1) KLT 90 (SC) = 2014 (3) KHC 2483 (SC) has held that in order to draw the statutory presumption under Secs.118(a) and Sec.139 of the N.I. Act the burden is quite heavy on the complainant to prove that he had the Crl.L.P.267/17 - : 5 :- source of funds to the make the borrowal to the accused at the relevant time. Similar view has been reiterated by the Apex Court in the judgment in K.Subramani v. K.Damodara Naidu reported in (2015) 1 SCC 99. Therefore, the trial court is well justified in concluding that statutory presumption under Sec.118(a) and Sec.139 of the N.I.Act cannot be drawn in favour of the complainant in this case. (C) The complaint has been filed directly by the complainant, and not through a power of attorney. But the complainant has not chosen to adduce evidence in this case. On the other hand, on the strength of power of a attorney executed as Ext.P-6 dated 7.4.2015, the mother of the complainant has been examined as PW-1. The Apex Court has also held in the judgment in Narayanan.A.C & anr. v. State of Maharashtra & ors. reported in (2014) 11 SCC 790 = 2013(4) KLT 21 (SC), that where the complaint is bona fide being prosecuted through a power of attorney, then there should be explicit assertion in the complaint as to the knowledge of the power of attorney holder about the transaction in question. In the absence of such an explicit assertion, the said complaint is liable to the thrown out. No doubt, in the instant case, the complaint was directly filed by the complainant and not through the power of attorney. However, since the complainant has not adduced any evidence and has chosen to adduce evidence through his mother, then at least the affidavit filed in lieu of the chief examination should Crl.L.P.267/17 - : 6 :- have contained a specific assertion that she had direct knowledge about the borrowal transaction as well as about the execution and issuance of cheque. The proof affidavit filed by PW-1 is conspicuously silent about these aspects. Therefore, the trial court is fully right in holding that the evidence tendered by PW-1, cannot be acted upon as the safe basis for convicting the accused for the criminal offence under Sec.138 of the N.I.Act. Prior to her examination, the power of attorney holder (PW-1) had filed an application before the Court seeking permission of the court for adducing evidence on behalf of the complainant. Even in that application, there were no averments that the power of attorney holder has direct knowledge about the transactions relating to the borrowal as well as about the execution and issuance of the cheque. In the light of these aspects, the trial court cannot be found fault with for having held that evidence of PW-1 cannot be the safe basis for convicting the accused. It is on the basis of the aforesaid findings of facts, after adjudication of the matter and on the basis of appreciation of evidence on record, that the trial court has come to the considered conclusion that the accused is entitled to the benefit of acquittal. Merely because another view is plausible, it is not a ground to interfere with the findings of acquital. 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 Crl.L.P.267/17 - : 7 :- 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.” 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_ ”. 7. 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 Crl.L.P.267/17 - : 8 :-