Shriram Transport Finance Company Ltd. v. State of Kerala and Manoj K.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939** ## **Crl.L.P..No. 527 of 2015 ()** **---------------------------ST 61/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT- IV, KOTTAYAM** **-------------------** ## **PETITIONER/COMPLAINANT:** **-------------------------------------------** **M/S.SHRIRAM TRANSPORT FINANCE COMPANY LTD., IST FLOOR, CEEPEES BUILDING, OPPOSITE ST. JOSEPH'S HIGH SCHOOL, ALUVA ROAD, ANGAMALY, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, RAJU THOMAS, S/O. LATE V.J. JOSEPH, CONSULTANT LEGAL, RESIDING AT VARANGALAKUDIYIL (H), NAYARUPARA P.O., IDUKKI.** **BY ADVS.SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN SMT.SANU S MALAKEEL** ## **RESPONDENT(S)/STATE AND ACCUSED:** **-------------------------------------------------------------** ## **1. THE STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2. MANOJ K.K., KARTHIYAYANI NIVAS, KUDAVECHOOR P.O., VAIKOM, KOTTAYAM - 686 144.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY R2 BY ADV. SRI.SHAJI THANKAPPAN** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.L.P.No.527 of 2015 ----------------------------------------Dated this the 10[th] day of October, 2017 ## _**JUDGMENT**_ The petitioner seeks special leave of this Court under Section 378(4) of the Code of Criminal Procedure to file Criminal Appeal, so as to impugn the judgment dated 14.9.2015 rendered by the trial court concerned (Court of the Judicial First Class Magistrate Court-IV, Kottayam) whereby the accused in S.T.No.61 of 2015 has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner herein is the complainant and the second respondent herein is the accused in the abovesaid S.T.No.61 of 2015. 2. Heard Sri.C.Harikumar, learned counsel appearing for the petitioner/complainant, Sri.Shaji Thankappan, learned counsel appearing for R2/accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State. 3. The brief of the case of the complainant is to the effect that the accused is a customer of the complainant Company which is carrying on the business of providing loan for purchasing vehicles and that the accused had taken a loan for Rs.3,50,000/- for the purchase of : **:2::** Crl.L.P.No.527/15 a vehicle and for discharging the outstanding liability owed by the accused to the complainant, the former had issued Exhibit P2 cheque dated 8.5.2013 for Rs.3,07,400/- drawn from his account which when presented resulted in dishonour on the ground of _'insufficiency of funds'_ as per Exhibit P3 memo. The complainant after adhering the procedural formalities, including the issuance of demand notice, had instituted the above complaint which led to the conduct of the trial. The defence case set up by the accused is to the effect that the accused is only the guarantor in the abovesaid loan transaction and that the blank signed cheque taken by him at the time of commencement of the transaction has been misused in the present complaint. 4. During the trial, the complainant has examined as PW1 (power of attorney holder of the complainant Company) and PW2 (official of the complainant Company as prosecution witness) and has marked Exhibits P1 to P7 documents. The defence has adduced oral evidence to DW1 and has marked Exhibit D1 and D2 documents. 5. On a perusal of the materials on record, this Court is of the view that the trial court is well justified to render the judgment of acquittal in view of the following reasons. - (A) The complaint has been filed through a power of attorney holder. There are no averments anywhere in the complaint that the power of attorney holder (PW1) has direct knowledge : **:3::** Crl.L.P.No.527/15 about the transaction which led to the grant of loan as well as the subsequent transaction for making the alleged execution and issuance of the cheque by the accused. It has been held by the Apex Court in the judgment in _**Narayanan v. State of Maharashtra**_ reported in _**(2014) 11 SCC 790 = 2013 (4) KLT 21 (SC)**_ that though a complainant will be at liberty to institute a complaint through a power of attorney holder, there should be specific and explicit assertion in the complaint as to the knowledge of the power of attorney holder about the transactions in question. Though the filing of a complaint under Section 142 of the Negotiable Instruments Act through a power of attorney holder is legal and competent, such a power of attorney holder must specify in the complaint itself about his direct knowledge about the transaction and that he can depose only if he has witnessed the transaction in question as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions. It has been also been held by the Apex Court in the decision in _**Narayanan.A.C. and another v. State of Maharashtra and others**_ reported in _**AIR 2015 SC 1198 = 2015 (1) KLD 217 (SC)**_ that where the Managing Director and the Director are : **:4::** Crl.L.P.No.527/15 authorised to appoint or nominate any other person to appear on behalf of the Company, it will be competent for them to authorise the filing of a complaint on behalf of the Company through one of the authorised employees and provided he should know everything about the transaction in question and the said employee should be specifically authorised by the Managing Director or Director to proceed with the complaint. In the instant case, there are no averments in the complaint that PW1 has direct knowledge about the transaction in question or that he has witnessed the transaction relating to the grant of the loan as well as the subsequent transaction relating to the alleged voluntary issuance and execution of the cheque in question. Moreover, PW1 has not stated in his evidence that he has direct knowledge about the transaction in question. Therefore, the evidence tendered by PW1 cannot be the legal and safe basis for rendering a judgment of conviction against the accused. (B) The complaint as well as the evidence of PW1 are lacking the details relating to the loan transaction as to what exactly was the agreed rate of interest, the number of loan repayment instalments paid by the accused, the details as to how the total outstanding liability was arrived at, so as to justify the : **:5::** Crl.L.P.No.527/15 amount shown in the cheque, etc. The omission to state these details in the complaint causes serious prejudice to the accused inasmuch as he will be denied the opportunity of reasonable defence in the conduct of the criminal trial. This Court in the decision in _**K.K.Divakaran v. State of Kerala**_ reported in _**2016 (4) KLT 233**_ 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 regarding the material particulars of the transaction which are necessary for him to effectively meet and rebut the case against him. But, unscrupulous complainants very often refused to do so with the ulterior objective of denying the accused a fair trial, which is a fundamental right guaranteed to him under Article 21 of the Constitution of India and that the accused in a complaint case filed under Section 142 of the Negotiable Instruments Act is also entitled to know before the trial the particulars of the accusation and the allegations against him. Suppression of these particulars in the complaint alone is sufficient to order his acquittal. It will be profitable to refer to paragraphs 18 and 20 of the decision of this Court in _K.K.Divakaran_ 's case (supra), which read as follows. : **:6::** Crl.L.P.No.527/15 “ _18. Before she filed the complaint the second respondent sent Exhibit 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._ ## _19. xxxxxx_ _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.”_ ## (C) PW1 has admitted that he is the legal consultant of the complainant Company and that he had seen the accused only twice one on the day of execution the cheque and the other on the occasion during the conduct of the trial. According to PW1, the loan was disbursed by the complainant Company to enable the accused to purchase a Tata 407 lorry. To disprove this aspect, the defence had adduced evidence through DW1 (who is the motor vehicle Inspector of Vaikom) who has : **:7::** Crl.L.P.No.527/15 deposed that the vehicle in question covered by the transaction which is bearing No.KL-02K7805 is a heavy good vehicle whereas the Tata 407 lorry as stated by PW1 is a light good vehicle. Therefore, the trial court has held that a combined reading of Exhibit D1 and Exhibit D2 and the oral evidence of DW1 would clearly show that PW1 has no direct knowledge about the transaction relating to the execution of Exhibit P2 cheque and that his version is not believable and credible. PW2 has also admitted in evidence that he does not personally know the accused. In the complaint, it is asserted that the accused is a customer of the complainant Company whereas in evidence PW1 would state that the accused is a guarantor in respect of the loan transaction. All these aspects have raised serious suspicion regarding very credibility and believability of the evidence rendered by the complainant Company. 6. In the case _**State of Rajasthan v. Darshan Singh @ Darshan Lal**_ reported in _**2012 (4) Supreme 72 = (2012) 5 SCC 789**_ , the Apex Court has held as follows : _“24...........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._ : **:8::** Crl.L.P.No.527/15 _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 v. 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. It is in the light of these aspects that the trial court has rendered a judgment of acquittal in favour of the accused. The said findings of fact made by the trial court cannot be said to be perverse or illegal. Merely because another view is plausible is no ground for this Court to upturn a considered verdict of acquittal rendered by the trial court in favour of the accused. 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** csl