Shihabudheen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF OCTOBER 2017/27TH ASWINA, 1939** ## **Crl.Rev.Pet.No. 345 of 2017 (C)** **-------------------------------CRA 72/2015 of ADDITIONAL DISTRICT COURT, MOOVATTUPUZHA CC 867/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM** **-------------** **REVISION PETITIONER/APPELLANT/ACCUSED:** **------------------------------------------------------------------** **SHIHABUDHEEN, AGED 32 YEARS, S/O. BASHEER, ELAVUMKUDIYIL HOUSE, (ELAVUMCHUVATTIL), MARKET P.O, MUVATUPUZHA, ERNAKULAM.** **BY ADVS.SRI.P.M.SANEER SRI.SHAJIN S.HAMEED** ## **RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT:** **---------------------------------------------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. RADHA MOHANAN, AGED 42 YEARS, W/O. MOHANAN, KUNNUMPURATH HOUSE, KOTHAMANGALAM VILLAGE, PUTHUPPADY P.O, ERNAKULAM DISTRICT PIN CODE- 686 673.** - **R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY R2 BY ADV. SRI.S.DILEEP (KALLAR)** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **ALEXANDER THOMAS, J.** ================== Crl.R.P.No. 345 of 2017 ================== Dated this the 19[th] day of October, 2017 ## **O R D E R** The petitioner is the accused in C.C.No. 867/2012 on the file of the Judicial First Class Magistrate's Court, Kothamangalam, for offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 2[nd] respondent (complainant). The trial court as per the impugned judgment dated 20.1.2015 had convicted the petitioner and had sentenced him to undergo imprisonment till rising of the court and to pay fine of Rs.5,50,000/- to the complainant and in default thereof, the petitioner was sentenced to undergo simple imprisonment for 6 months. Aggrieved thereby, the petitioner had preferred Crl.Appeal No.72/2015 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge, Muvattpuzha). The appellate court as per the impugned appellate judgment dated 16.1.2017 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. Crl.R.P.345/17 - : 2 :- 2. Heard Sri.Shajin.S.Hameed, learned counsel appearing for the revision petitioner (accused) , Sri.S.Dileep (Kallar), learned counsel appearing for R-2 (complainant) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. 3. The brief of the case of the complainant is that in discharge of a liability of Rs.5,50,000/- owed by the accused to the complainant, the revision petitioner (accused) had issued Ext.P-1 cheque dated 9.10.2012 for Rs. 5,50,000/- drawn from his account in favour of the complainant. The cheque when presented resulted in dishonour as per Exts.P-2 and P-3 memos and thereupon, the complainant had issued Ext.P-4 statutory demand notice under Sec. 138 proviso (b) of the Negotiable Instruments Act calling upon the accused to pay of the amount covered by the said cheque within 15 days from the date of receipt of the said notice. The notice sent by registered post has been duly served on the accused as per Exts.P-5 and P-6. That the accused had sent Ext.P-7 reply notice raising untenable contentions and denying the liability of the amount covered by the cheque. That since the amount was not paid, the complainant after adhering to the requisite procedural formalities, has instituted the present complaint, which led to the conduct of the trial. 4. During the trial the prosecution has examined P.W-1 (complainant), P.W-2 (Secretary of the co-operative bank) and P.W-3 (Village Officer concerned) and has marked Exts.P-1 to P-9 documents. The Crl.R.P.345/17 - : 3 :- defence has adduced oral evidence through D.W-1 (accused) and has marked Exts.D-1 to D-6 documents. 5. Apart from the various contentions, the learned counsel for the petitioner has also inter alia raised the following two contentions: **(A)** . That the complaint, statutory demand notice as well as the proof affidavit of the complainant are conspicuously bereft of any of the details regarding the date of the transaction, the dates on which the borrowal transactions have taken place, the details of the execution of the cheque and the day on which the cheque was handed over, etc. Therefore, it is urged that the complaint is vitiated on account of suppression of crucial and relevant aspects and that the accused is entitled to the benefit of acquittal in the light of the legal principles laid down by this Court in the decision in _**K.K.Divakaran v. State of Kerala**_ , reported in 2016 (4) KLT 233. In the said decision, this Court has held that 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 and that unscrupulous complainants very often refuse to do so with the object of denying the accused a fair trial, which is a constitituional and fundamentsl right guaranteed under Article 21 of the Constitution of India and that when an accused in a complaint case filed under Sec.142 of the N.I. Act also is entitled to know before the trial the particulars of the accusations alleged Crl.R.P.345/17 - : 4 :- 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 and 20 of the abovesaid decision in _**K.K.Divakaran's case,**_ 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 5] 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.”_ On the basis of the abovesaid reported decision, the learned counsel for the petitioner would strongly urge that as the complaint is conspicuously silent of all the details regarding the nature of the transactions, date of borrowal, the date on which cheque has been handed over, etc. the accused is entitled for the benefit of acquittal, etc. **(B)** It is further urged that the specific defence taken up by the accused was to the effect that only amount of Rs. 3,50,000/- was availed by him from the complainant on three different occasions and that at that Crl.R.P.345/17 - : 5 :- point of time, 6 blank signed cheques and blank signed papers of the accused, including the present Ext.P-1 cheque, were given to the complainant as security and that the complainant was using the money of one Smt.Suhara, who was conducting the business of lending money and that later the said Smt.Suhara, had filed a pre-litigation petition before the Lok Aladath as per Ext.D-5 proceedings, in which the 1[st] respondent therein was the complainant herein and the 2[nd] respondent therein was the petitioner accused herein and that as against the amount of Rs. Rs. 2 lakhs claimed by Smt.Suhara, the petitioner had paid amount of Rs. 1,50,000/as evident from the Lok Adalath proceedings and that the two blank signed cheques were also returned to the complainant as per Ext.D-6 receipt issued at the time of the conclusion of the Lok Adalath proceedings. Further, it is urged that during cross examination, P.W-1 (complainant) has taken the extreme position that she does not even know the said Smt.Suhara and that she does not have any transaction whatsoever with Smt.Suhara and that she has even claimed that she is ignorant about the Lok Adalath proceedings referred in Ext.D-5 proceedings. The learned counsel for the petitioner would strongly urge that the said evidence given by P.W-1 is patently false, inasmuch as it is very clear from a mere perusal of Ext.D-5 proceedings of the Lok Adalath that the complainant herein was the 1[st] respondent therein and the accused herein was the 2[nd] respondent therein in the pre-litigation petition filed by Smt.Suhara in the Lok Adalath. Crl.R.P.345/17 - : 6 :- Therefore, it is contended that since the evidence of P.W-1 in that aspect is clearly false, the courts below went wrong in not accepting the contention of the petitioner accused that the very evidence of P.W-1 is not believable and credible and that the transactions in question in this case are actually relatable to Smt.Suhara. Further it is urged that both the trial court and the appellate court have not even made any cursory reference to this crucial aspect regarding the falsehood statement made by P.W-1 in that case, which has been proved as false going by the contents of Ext.D-5 proceedings, which are not in any manner denied by P.W-1. **(C)** It is also urged by the petitioner that the petitioner had filed an application before the trial court to examine Smt.Suhara in order to fortify his contention that Smt.Suhara was involved in this transaction and more particularly, to show that Smt.Suhara and the complainant herein were closely related in their money transactions and the very version of P.W-1 that she had no transaction with Smt.Suhara and that she is not even a party to Ext.D5 proceedings before the Lok Adalath, etc. are patently false and incorrect. The said contention has not even been considered by the trial court and that the failure on the part of the court below to examine these issues would amount to grave injustice in the facts of this case, etc. 6. Per contra, Sri.S.Dileep (Kallar), learned counsel appearing for the 2[nd] respondent (complainant) would urge that the complaint cannot be said to be vitiated on account of any suppression and further that even Crl.R.P.345/17 - : 7 :- going by Ext.P-7 reply notice sent by none other than the accused that he has indeed admitted that she has borrowed amounts from the complainant amounting to Rs. 1.5 lakhs on 13.3.2011, Rs.1 lakh on 19.3.2012 and Rs. 1 lakh on 29.3.2012 and further that even going by Ext.D-5 the claim of Smt.Suhara was only for a total amount of Rs. 2 lakhs, etc. and that the contentions of the petitioner are bereft of any merits, etc. 7. Having regard to contentions of both sides, this Court is of the considered opinion that the abovesaid contentions raised by the petitioner deserve serious second look at the hands of the courts below. This Court also feels that a remit of the matter to the trial court for consideration of these matters afresh would entail unnecessary delay and therefore the interest of justice would be advanced by remitting the matter to the appellate court. 8. In this view of the matter, it is ordered that the appellate judgment dated 16.1.2017 rendered by the appellate court in Crl.Appeal No. 72/2015 will stand set aside. The said Crl.Appeal No. 72/2015 will stand restored to the file of the appellate Sessions Court concerned for disposal of the matter afresh, after affording reasonable opportunity of being heard to both sides. 9. The learned counsel for the petitioner accused and learned counsel for 2[nd] respondent complainant shall appear before the appellate Sessions Court at 11 a.m. on 14.11.2017, on which day, the said Court shall Crl.R.P.345/17 - : 8 :- fix up a date for hearing of the appeal, which is convenient to both sides and then proceed with final hearing of the appeal and its disposal. The abovesaid contentions of the revision petitioner/appellant as well as any other contentions that may be raised by both sides should be considered by the appellate court. Having regard to the long pendency of the matter, the appellate court will endeavour to ensure that the appeal is disposed of as expeditiously as possible, at any rate, within a period of 3 to 4 months from the date of receipt of a certified copy of this order. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge