Sasikumar v. N. Unnikrishnan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939** **Crl.L.P..No. 117 of 2017 () ----------------------------** **ST 145/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NILAMBUR.** **..........** **PETITIONER/COMPLAINANT:** **-----------------------** **SASIKUMAR, S/O.GOPINATHAN NAIR, AGED 48 YEARS, KARIKATTU PUTHENPURAYIL HOUSE, KARUVAMBRAM WEST (POST), MANJERI.** **BY ADVS.SRI.P.SAMSUDIN** **SRI.JITHIN LUKOSE SMT.ANJU CLETUS** **RESPONDENTS/ACCUSED AND STATE:** **------------------------------** **1. N.UNNIKRISHNAN, S/O.BALAKRISHNA MENON, NECHIKKAT HOUSE, SECRETARY,** - **AMARAMBALAM SERVICE CO-OPERATIVE BANK, POOKKOTTUMPADAM-679322, MALAPPURAM DISTRICT.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 12-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## ALEXANDER THOMAS, J. ----------------------------Crl.L.P.No.117 Of 2017 --------------------------------- Dated this the 12th day of June, 2017. ## O R D E R The petitioner herein seeks grant of special leave by this Court so as to impugn the judgment dated 28.1.2017 rendered by the trial court concerned (Judicial First Class Magistrate Court, Nilambur), whereby the accused (R-1 herein) in S.T.No.145/2013 has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. The gist of the complainant's case is that the accused had borrowed Rs.75,000/- from the complainant and for discharging the said liability the accused had issued the instant cheque in question (Ext.P-1 dated 1.11.2012) for Rs.75,000/- drawn from his account and payable to the complainant and the cheque when presented resulted in dishonour to which statutory demand notice has been issued as per Ext.P-3(a) calling upon the accused to pay off the amount covered by the cheque within 15 days from the date of notice. But that, in spite of statutory demand notice, there was no response from the accused, thus leading to the complainant forwarding the present complaint after complying with the requisite formalities in that regard. The prosecution examined ::2:: Crl.L.P.No.117 Of 2017 PW-1 and marked Ext.P-1 to P-3 series documents. The defence has adduced evidence through DW-1 and marked Exts.D-1 to D-3 documents. 2. Heard Sri.P.Samsudin, learned counsel appearing for the petitioner (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. In view of the order proposed to be passed in this petition, notice to R-1 stands dispensed with. 3. The very defence of the accused was that for the previous transaction between the parties, the accused has given a blank signed cheque as security and after clearing the said liability the complainant had not returned the cheque which has been misused for instituting the present complaint, etc. So, the accused does not seriously dispute about the fact that the signature in the dishonoured cheque is his and further that the cheque has been issued from an account maintained by the accused and therefore going by the legal principles well established in that regard in many rulings of various High Courts and this Court and that of the Apex Court in T.Vasanthakumar v. Vijayakumari reported in (2015) 8 SCC 378, the benefit of statutory presumption available under Sec.139 of the N.I.Act could be claimed in this case. ::3:: Crl.L.P.No.117 Of 2017 4. On going through the impugned judgment of acquittal rendered by the trial court as well as the materials on record, it is seen that the said statutory presumption has been effectively rebutted by the complainant in view of the following aspects mentioned hereinbelow: The defence has suggested that the complainant and accused had conducted the business of slaughtering of rubber trees as partners and that the accused could not pay his share of Rs.70,000/- in the transactions along with the complainant and therefore the complainant paid the said amount for and on behalf of the accused in such business and as security, the complainant received blank cheques and one blank signed stamp paper and the arrangement was that the accused would clear off the said liability by enabling the complainant to take loan from the Service Co-operative Bank by pledging the property of the accused, etc. That the entire liability in the said mortgage loan taken by the complainant by mortgaging the property of the accused has been cleared and that the accused paid the amount towards the liability. It has come out in evidence that the immovable property belonging to the accused as document No.424/1992 was mortgaged by the complainant, who has secured Rs.70,000/- as loan, that on repayment of the said amount, the accused had demanded the blank signed cheque which was ::4:: Crl.L.P.No.117 Of 2017 not returned and that the complainant had demanded huge interest from 1997 onwards and that the accused has refused to pay the said amount and that the complainant had misused the cheque, etc. DW-1 (official of the Service Co-operative Bank) has deposed that loan was taken by the complainant by mortgaging the property of the accused and the loan amount was Rs.70,000/- and the entire loan account has been cleared. The accused has asserted that he has cleared that amount and whereas the complainant had denied it. The complainant had denied the very existence of the said loan transaction in his cross-examination and this denial has been demolished by the defence evidence of DW-1. The official of the Service Co-operative Bank has also stated that it is not clear from the records as to who has paid the loan amount. Since it was asserted by the accused that it was he who paid the entire amount and the complainant had denied the very existence of the loan transaction, the trial court cannot be found faulted with for accepting the further assertion of the accused that it is he who had cleared the entire liability of Rs.70,000/owed to the complainant by clearing the above mortgage loan of the complainant. The credibility of the version of PW-1 denying the existence of the mortgage loan transaction has been demolished. So the trial court cannot be faulted for believing the version of the accused that it was he who cleared the mortgage loan of the complainant. ::5:: Crl.L.P.No.117 Of 2017 5. Further, it has come out in evidence that the original of the cheque has been issued long prior to 2000 and the complaint has been instituted in the year 2013. This has also led the trial court to believe the version of the accused that the entire transaction have taken place in the year 1990's etc. However, the complainant himself has admitted in the evidence that the all the entries in the cheque were type written entries. This has also created strong suspicion in the mind of the trial court about the credibility and believability of the evidence tendered by the complainant. Further it is seen that the statutory demand notice and the complaint are conspicuously bereft of any details of the transaction which led to the borrowal of money and about the handing over of the cheque, etc., and about the details of the entrustment of the dishonoured cheque which was later dishonoured, etc. Therefore, the trial court found that non-disclosure of the crucial and relevant aspects in the complaint would amount to suppression 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 are 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 nondisclosure would amount to deprivation of the right to free trial ::6:: Crl.L.P.No.117 Of 2017 guaranteed to an accused under Article 21 of the Constitution of India. Not much authority is required on this point except to reiterate the legal principles laid down by this Court in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233, wherein this Court has held in paras 18 & 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. ## 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 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.” For these reasons the trial court cannot be found faulted for having come to the conclusion that the evidence of the complainant is bereft of reliability and the accused is entitled for acquittal. The above said considered factual findings rendered by the trial court cannot be said to be vitiated by unreasonableness or gross perversity. ::7:: Crl.L.P.No.117 Of 2017 5. 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 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”. In the light of the legal principles laid down by the Apex Court, this Court is of the view that even if the the appeal is entertained there is not much scope to overturn the judgment of acquittal rendered by the trial court. Accordingly, this Court is of the considered view that the petition seeking leave is bereft of any merit and the same is dismissed. ALEXANDER THOMAS, Judge. bkn/-