Seenath v. Babu P.S. & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939** **Crl.Rev.Pet.No. 736 of 2017 () -------------------------------** **CRL.A 134/2015 OF ADDITIONAL SESSIONS COURT, IRINJALAKUDA. CC 357/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR.** **......** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **--------------------------------------** **SEENATH, W/O.NISHAD, THOPPIYIL HOUSE, P.VEMBALLOOR, THRISSUR DISTRICT.** **BY ADVS.SRI.M.SHAJU PURUSHOTHAMAN SRI.K.S.RAJESH** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **-----------------------------------** **1. BABU P.S., S/O.SUKUMARAN, AGED 54 YEARS, PANATTU HOUSE, P.O. PERINJANAM, THRISSUR DISTRICT.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV.SRI.BIJU .C. ABRAHAM R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.736 Of 2017 --------------------------------- Dated this the 23rd day of November, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act in C.C.No.357/2011 on the file of the Judicial First Class Magistrate Court, Kodungallur. Ext.P-1 dishonoured cheque dated 18.3.2011 is for Rs.5 lakhs. The trial court as per the impugned judgment rendered on 15.5.2015 had convicted the petitioner for the above said offence and had sentenced her to undergo simple imprisonment for a period of 6 months and to pay an amount of Rs.5 lakhs to the complainant as compensation under Sec.357(3) of the Cr.P.C and in default thereof the accused was sentenced to undergo simple imprisonment for a period of six months, etc. Aggrieved thereby the petitioner had preferred Crl.A.No.134/2015 before the Additional Sessions Court, Irinjalakuda. The appellate court concerned, as per the impugned judgment dated 10.4.2017 had upheld the conviction and modified the substantive sentence to imprisonment till the rising of the court and confirmed the compensation amount and reduced the default ::2:: Crl.R.P.No.736 Of 2017 sentence clause to simple imprisonment for a period of 45 days and thus partly allowed the appeal. It is aggrieved by the above said judgments of both the courts below regarding the impugned conviction as well as the sentence, that the petitioner has preferred the instant Crl.R.P taking recourse to the provisions conferred under Sec.397 r/w Sec.401 of the Cr.P.C. 2. Heard Sri.Shaju Purushothaman, learned counsel appearing for the revision petitioner (accused), Sri.Biju C.Abraham, learned counsel appearing for R-1 (complainant) and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State. 3. The brief of the case projected in the complaint is to the effect that the accused has issued Ext.P-1 cheque dated 18.3.2011 for Rs.5 lakhs drawn from his account payable in favour of the complainant in discharge of a liability in that regard owned by her and that the cheque when presented resulted in dishonour as per Exts.P-2 and P-3 bank memos. That thereupon the complainant has caused to send Ext.P-4 statutory demand notice under Sec.138 proviso (b) of the Cr.P.C, calling upon the accused to pay off the amount covered by the cheque within 15 days from the date of receipt of the said notice and that the said demand notice sent by registered post was duly served on ::3:: Crl.R.P.No.736 Of 2017 the accused as evident from Ext.P-5 postal receipt and Ext.P-6 acknowledgement card. But the accused has not responded to the said notice and as the amount was not paid, the complainant after adhering to the procedural formalities, has instituted the present complaint, which led to the conduct of the trial. During trial, the complainant has himself examined as PW-1 and marked Exts.P-1 to P-6 documents. The basic defence set up by the accused during cross-examination of PW-1 is to the effect that she never had any transaction with the complainant in the manner alleged in the complaint and that she had never voluntarily executed and issued the cheque in the manner alleged in the complaint. Further, her case is that her husband had a monetary transaction with one Sri.Ravi (DW-1) and as security in that transaction 3 blank signed cheques of her husband and 2 blank cheques of the accused were given to him, which have been misused in the present case. It is also alternatively put up as a defence case that the accused's husband had earlier borrowed an amount of Rs.50,000/- from the complainant and as security in that transaction accused's blank signed cheque was given by her husband to the complainant and though the amount was repaid the complainant has misused the said blank signed cheque as dispute arose between the complainant and her husband ::4:: Crl.R.P.No.736 Of 2017 regarding the further interest payable on the borrowed amount of Rs.50,000/-, etc. 4. Apart from the various contentions urged on behalf of the accused, Sri.Shajin S.Hameed, learned counsel appearing for the revision petitioner would give emphasis on the following contentions. (A) That a bare perusal of the complaint in this case would disclose that none of the crucial aspects relating to transaction, nature of the transaction, etc., are mentioned in the complaint. That the complaint is conspicuously silent about the date on which the money was allegedly borrowed by the complainant to the accused, the date on which the cheque was allegedly handed over by the accused to him and the nature and proximity of the relationship between the parties which induced the complainant to part with such a huge amount to the accused without insisting for any receipt, security, documentation and without charging any interest, etc. The petitioner's counsel would accordingly argue that the accused is entitled to the benefit of acquittal in view of the serious suppression of the material facts in the light of the dictum laid down by this Court in K.K.Divakaran v. State of Kerala, Divakaran's case reported in 2016 (4) KLT 233. In the said decision in (supra), this Court has held that in a criminal case the accused should be ::5:: Crl.R.P.No.736 Of 2017 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 filed under Sec.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. It will be profitable to refer to paras 18 & 20 of the 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 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 ::6:: Crl.R.P.No.736 Of 2017 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 petitioner's counsel that in view of the serious suppression of relevant 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 K.K.Divakaran 's case (supra). dictum laid down by this Court in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233. The petitioner's counsel would also place heavy reliance on the judgment of the Apex Court in Vijay v. Laxman & anr., reported in (2013) 3 SCC 86 to contend that there is legal necessity to disclose all such relevant aspects in the complaint as otherwise it would cause serious prejudice, etc. (B) Both the courts below egregiously erred in holding that the defence has not made any challenge as to the source of income of the complainant at the time of the borrowal transaction in question. Sri.Shaju Purushothaman, learned counsel appearing for the petitioner has elaborately taken the attention of this Court to the chief examination and cross-examination of PW-1 and has submitted that the defence has made a frontal attack on the veracity of the complainant's version that he has source of funds at the time of borrowal transaction on 18.1.2011 to advance such a huge amount of ::7:: Crl.R.P.No.736 Of 2017 Rs.5 lakhs to the accused. That a reading of the cross-examination would reveal that the complainant has candidly admitted that the Income Tax returns filed by him for the year 2011-12 (which is relevant for the period in question which includes the date 18.1.2011, the day of the alleged borrowal transaction), that as per Ext.D-2 Income Tax receipt paid by the complainant at the time of the alleged borrowal transaction was hardly Rs.3,621/- and his income for the period is hardly in the range of Rs.2 lakhs. That even PW-1 would only contend that his Income Tax paid for the next assessment year 2012-2013 is Rs.5,000/-. That though the complainant has made tall claims about his running of various businesses, like gold loan, money lending, CD business, etc., not even a scrap of paper has been produced before the trial court to show that he has source of funds as on 18.1.2011 to advance such a huge amount of Rs.5 lakhs to the accused. Further that PW-1 has also candidly admitted in cross-examination that in the 1st week of January, 2011, he did not have Rs.5 lakhs with him and he has raised the amount only 2 weeks thereafter. His case is that he is running business like, money lending, gold loan, CD business, etc., and therefore there could be at least books of accounts or such some other documentary materials to establish the source of funds at the relevant ::8:: Crl.R.P.No.736 Of 2017 time. If as a matter of fact, he could easily part with Rs.5 lakhs without charging any interest, he should be having very huge income going by his tall claims and if that be so, it would be reflected in some documents, bank records and it would have been very easy for the complainant to produce such materials before the trial court to satisfy the trial court that he has sufficient source of funds on 18.1.2011 to advance an amount of Rs.5 lakhs to the accused. Moreover, not even a single scrap of paper has been produced by the complainant and that the only document in that regard produced by the complainant along with the documents' list by the complainant was challan receipt paid to the Income Tax Department, which was not marked by the complainant and the said document was marked by DW-1 during the crossexamination of DW-1 as Ext.D-2. The Apex Court has held in John K.Abraham v. Simon C.Abraham, reported in (2014) 2 SCC 236, that in order to draw presumption under Sec.118(a) and 139 of the N.I. Act, the burden is quite heavy upon the complainant to prove that he had requisite money to advance the adduced at the relevant time of the transaction in question. Similar view has also been taken by the Apex Court in K.Subramani v. K.Damodara Naidu, reported in (2015) 1 SCC 99 and K.Prakashan v. P.K.Surenderan, reported in (2008) 1 SCC 258. It is ::9:: Crl.R.P.No.736 Of 2017 further argued that since the complainant has miserably failed to adduce convincing evidence before the trial court about his source of funds at the relevant time he is not entitled to draw the benefit of statutory presumption under Sec.118(a) and Sec.139 of the N.I. Act. Since the complainant is thus entitled to draw the benefit of statutory presumption, heavy burden is cast upon the complainant to prove the case beyond reasonable doubt. (C) The complainant has miserably failed to establish any clinching circumstances in the evidence adduced before the trial court to show the reasons which induced the complainant to part with such a huge amount of Rs.5 lakhs to the accused without any receipt, documentation, security and without charging any interest. That the said conduct on the part of the complainant would create great suspicion and doubt about the veracity and credibility of the case projected by the complainant. In this regard, it is also argued by the counsel for the petitioner that it has come out in evidence that petitioner's husband is running 4-5 hotels in the name and style “Silver Spoon” and further that even the case set up by the complainant is only to the effect that the accused was managing the responsibility of managing cash in one of such hotels and that ordinarily any such ::10:: Crl.R.P.No.736 Of 2017 personal loan transaction would be only between the proprietor of such business with a lender like the complainant and that therefore, it is very hard for any reasonable person to believe the version of the complainant that the financial transaction was between the accused, who is the wife of the business man concerned with the complainant, etc. That therefore the courts below seriously erred in not holding that when dispelling such suspicions and doubts, the evidence of the complainant cannot be the safe and reliable basis for convicting the accused in the facts and circumstances of the case. The petitioner's counsel would place reliance on the judgment of the Apex Court in Vijay v. Laxman & anr., reported in (2013) 3 SCC 86, wherein it has been held that the very case set up by the holder of a cheque itself is dubious and the initial presumption under Sec.118(a) and 139 of the Negotiable Instruments Act itself comes to an end. This Court in Bhaskaran Nair v. Mohanan, reported in 2009 (2) KLT 897, has held that where the materials produced disclose of suspicious circumstances surrounding the transaction and if no satisfactory explanation is tendered by the complainant to explain such circumstances, no conviction is legally permissible solely banking upon the statutory presumptions and the court is expected to examine whether the transaction covered by the ::11:: Crl.R.P.No.736 Of 2017 cheque is genuine, etc. 5. Per contra, Sri.Biju C.Abraham, learned counsel appearing for the respondent, would argue that no serious prejudice has been caused to the accused due to the non-disclosure of some of the aspects in the complaint and that the complainant has clearly stated in the proof affidavit filed in lieu of chief examination about the day on which borrowal transaction has taken place and the cheque in question was given on the same day on which the borrowal transaction has taken place. Further it is argued that even the cross-examination of PW-1 would clearly show that the complainant was running various business like gold loan, money lending, CD business, etc., and that he was having turn over to the tune of more than Rs.20 lakhs at the relevant time and that he had raised the requisite money within about 2 weeks after the request made by the accused, etc., and that both the courts below found that the said oral evidence tendered by PW-1 is believable and credible and unless it is found that the said assertion made by the court below is perverse or illegal, there is no scope for revisional interdiction, etc. That though a statutory demand notice under Sec.138(b) of the N.I. Act was duly sent by the complainant to the accused, she has not bothered to respond by sending any reply. If the statutory demand notice has been ::12:: Crl.R.P.No.736 Of 2017 duly served on the accused and if at all the accused is having any objection, then certainly any prudent person would have certainly responded to the same by sending reply notice and non-issuance of reply notice about the bonafides of the present objections raised by the accused, which are only hyper technical objections in order to get an order of acquittal, etc. Though the accused would contend that 3 of her husband's blank signed cheques and 2 of her signed blank cheques were given as security to DW-1 and a blank signed cheque was also given to the complainant, etc., neither the accused nor her husband has at any point of time submitted any complaint before any lawful authority like Police or to the Bank about such alleged incident and that the accused has not even bothered to send any stop payment instruction to her bank, etc., and this would speak volumes that the present objections are false. Further it is contended that the accused herself has come forward to examine DW-1, Ravi, and he has deposed fully against the accused stating that he had never any transaction with the accused's husband and her and that the substratum of the defence case stands collapsed the evidence tendered by DW-1, etc. 6. To the last contention urged by the complainant's counsel, it is responded by the counsel for the accused that it now too well ::13:: Crl.R.P.No.736 Of 2017 settled that the probability of the prosecution case does not depend upon the improbability or falsity of the defence case and it may not be proper to enter a finding that the prosecution case is true only because the defence case is untrue and that irrespective of the falsity or improbability of the defence case, the prosecution has to prove its case, in the manner known to law, etc. [see Jose v. Joy, reported in 2008 (3) KLT 512]. Further that, law permits the accused even to adopt inconsistent or alternative defences and it is for the court to ultimately decide as to whether the prosecution has proved the case beyond doubtand that merely because the accused earlier admitted having executed the cheque, that is not a ground to debar him from taking another defence and establish his case during trial [see Geetha v. Aliyarkunju, reported in 1993 (2) KLT SN 28 (Case No.29)]. 7. Having regard to the above said rival pleas made by both sides, this Court is of the view that the above said contentions of both sides require serious re-look at the hands of the court below. A remit of the matter to the appellate court will meet the ends of justice and therefore, this Court is of the view that the matter could be remitted to the appellate court for further consideration, more particularly in view of the above said contentions of the rival parties. In this view of the ::14:: Crl.R.P.No.736 Of 2017 matter, the impugned appellate judgment dated 10.4.2017 in Crl.A.No.134/2015 will stand set aside. Resultantly, Crl.A.No.134/2015 will stand restored to the file of the said appellate court. The accused, the learned counsel for the accused, the complainant and the learned counsel for the complainant shall appear before the appellate court at 11:00 a.m. on 20.1.2018, on which day the said court shall fix up a date of hearing, convenient to both sides and then proceed with the appeal. The appellate court shall consider the above said contentions of the parties and any other relevant contentions that may be raised by either side and will endeavour to dispose of the appeal without much delay, preferably within a period of 3 months from the date of production of a certified copy of this order. Both sides will be at liberty to submit their argument notes which shall then form part of the records. The petitioner shall produce a certified copy of this order before the appellate court for necessary action. With these observations and directions, the Crl.R.P. stands finally disposed of. ## bkn/-