Sree Gokulam Chit and Finance Company Ltd. v. Sajeesh Kumar E.V. and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939** **Crl.L.P..No. 187 of 2017 ()** **---------------------------CRA 64/2011 of THE COURT OF SESSION,THALASSERY ST 11/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT,PAYYANNUR** ## **PETITIONER(S)/PETITIONER/RESPONDENT/COMPLAINANT:** **-----------------------------------------------** **SREE GOKULAM CHIT AND FINANCE COMPANY LTD.NO.66, ARCOT ROAD,CHENNAI-REPRESENTED BY ITS POWER OF ATTORNEY HOLDER: GANESH KUMAR.N.V,S/O.RAGHAVAN, AGED 44 YEARS,ASSISTANT MANAGER(BUSINESS).** **BY ADV. SRI.MAHESH V RAMAKRISHNAN** **RESPONDENT(S)/RESPONDENTS/APPELLANT (ACCUSED) & STATE: ------------------------------------------------------** **1.SAJEESH KUMAR E.V., S/O.KANNAN,AGED 41 YEARS, JOSHITHA NIVAS, MAMBALAM,PAYYANNUR, TALIAPARAMBA,KANNUR-670307.** **2.STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALETTY** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 05-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** ## ALEXANDER THOMAS, J. ================== Crl.L.P.No. 187 of 2017 ================== Dated this the 5[th] day of June, 2017 ## O R D E R This is an application filed by the complainant in S.T.No.11/2010 on the file of the Judicial First Class Magistrate's Court-II (Munsiff), Payyannur, seeking special leave of this Court so as to institute a criminal appeal impugning the judgment of acquittal rendered by the appellate session court, Thalassery, in Crl.Appeal No.64/2011, arising out of the said complaint. The petitioner herein is the complainant alleging offence punishable under Sec.138 of the N.I. Act, in which the 1[st] respondent herein has been arrayed as accused. The cheque amount is for Rs.40,700/-. The trial court has convicted the petitioner for the abovesaid offence as per the impugned judgment rendered on 3.1.2011 and sentenced him to pay fine of Rs.50,000/-, in default of payment of which, the accused was sentenced to undergo simple imprisonment for one month, and the fine was directed to be paid as compensation to the complainant under Sec.357(1)(b) of the Cr.P.C. The accused had challenged the said judgment of conviction by filing the abovesaid appeal, which resulted in the abovesaid impugned judgment of acquittal rendered by the appellate sessions court concerned. Crl.L.P.187/17 - : 2 :- 2. Heard Sri.Mahesh V.Ramakrishnan, learned counsel appearing appearing for the complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. The brief of the complainant's case is that the accused was a subscriber of a chit transaction conducted by the complainant company and in respect of the balance liability of Rs.40,700/-, he had issued Ext.P-2 cheque dated 10.11.2007 for Rs.40,700/- in discharge of the said liability, payable in favour of the complainant. That the cheque when presented was dishonoured. After complying with the requisite formalities, the complainant filed the complaint, etc. 4. The appellate court found in the impugned judgment that statutory demand notice, the complaint as well as proof affidavit are conspicuously silent as to the actual date of the auctioning of the chit by the accused and receiving of the prized amount by him and the balance amount due from him as on the date of the auction. The appellate court has found that the non-disclosure of this crucial and relevant aspects in the statutory demand notice and in the complaint, would be fatal to the case of the prosecution. More surprisingly, these crucial aspects are omitted to be stated even in the proof affidavit filed by the complainant company. 5. It is to be noted at the outset that the accused does not seriously dispute about the signature in the cheque and the cheque is Crl.L.P.187/17 - : 3 :- also pertaining to the account maintained by the account. Therefore, in the light of the legal principles laid down in a catena rulings of various High Courts as well as by the Apex Court as in Vasanthakumari v. Vijayakumar, reported in (2015) 8 SCC 378, statutory presumption could certainly be drawn in favour of the complainant in the present case. The question is as to whether based on the evidentiary materials on record, the accused could point out clinching facts and circumstances to show that by preponderance of probability the said statutory presumption is rebutted. 6. This Court in the judgment in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233 has held in paras 18 to 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. 19. In the complaint also neither the nature, nor the date of the transaction between the parties is mentioned. The only addition made in the complaint is that the date of issuance of cheque is 14.9.1998. For the first time it was in her evidence the 2nd respondent (PW1) disclosed that the transaction between the parties was a loan of Rs.1,95,000/-. In answer to a leading question put in the examination in chief she stated that the transaction was after the marriage between her daughter Sulatha and the revision petitioner's son Pradeep, which was solemnised on Crl.L.P.187/17 - : 4 :- 23.1.1998. She testified that the revision petitioner requested for a loan of Rs.3 lakh one week after the marriage of Sulatha and Pradeep and she paid him Rs.1½ lakh on 9.4.1998 and Rs.45,000/- on 8.5.1998. The amount mentioned in the cheque is Rs.2,55,000/- though the loan amount was only Rs.1,95,000/- Rs.60,000/- is said to be interest. How the interest was calculated will be considered later. Her story is that in August 1998 she made a demand for repayment of the amount and then the revision petitioner undertook to pay the amount in January 1999; the 2nd respondent insisted on getting a cheque and a document from the revision petitioner; on 14.9.1998 at her residence at Pampadi the revision petitioner executed Ext.P1 cheque and Ext.P8 undertaking. 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 aspects, the appellate court is right in holding that the non-disclosure of such crucial aspects such as the actual date of auction of the chit, receiving of the prized amount and the balance amount due as on the date of the auction, etc. would be fatal to the prosecution case. 7. More importantly, the appellate court has also noted that no records whatsoever have been brought on record by the complainant to prima facie prove the crucial aspect that there was in fact a liability of Rs. 40,700/- owed by the accused to the complainant chit company as on the actual date of issuance of Ext.P-2 dishonoured cheque dated 10.11.2007. The said aspect is highly significant inasmuch as the very case of the complainant was that the accused had voluntarily come forward and had executed and signed the cheque in question, when he Crl.L.P.187/17 - : 5 :- was convinced that there was a liability of Rs. 40,700/-, whereas the specific defence put forward by the complainant though he was a subscriber, he was constrained to give blank signed cheques to the chit company at the time of the commencement of the transaction and that the said cheque has been misused by presenting the present complaint and that he had never accepted the cheque, etc. 8. True that the complainant has produced Ext.P-9 ledger extract, but a bare perusal of Ext.P-9 would not disclose as to how much exactly is the liability owed by the accused subscriber to the chit company. Even going by figures mentioned in Ext.P-9, it shows the amounts deposited by the accused subscriber and the last figure as on serial number 26 thereof, for 21.1.2008, is shown to be Rs. 70,075/-, but that by itself would not conclusively show that the accused had owed a liability of Rs.40,700/- as on 10.11.2007, on which day, it is alleged by the complainant that the accused had voluntarily come forward and executed Ext.P-1 cheque for Rs. 40,700/-. Therefore, when the accused strongly raised a defence that the cheque was given only as security and that he was never intimated about the exact liability, etc. it was the bounden duty of the prosecution to conclusively show as to how exactly the plain and simple liability of Rs.40,700/- was arrived at as on 10.11.2007 in respect of the accused. Since this crucial fact is omitted to be established by the complainant, the appellate court is fully justified in reaching the Crl.L.P.187/17 - : 6 :- said conclusion. In the light of these two aspects mentioned herein above, it can only be said that the accused on the basis of the preponderance of probability has been able to successfully rebut the statutory presumption drawn in this case under Sec.139 of the Negotiable Instruments Act. Since the presumption has been rebutted, it is only to be held that the presumption has disappeared== in this case and therefore the complainant was under the heavy burden to prove his case, which has not been done in this case. Therefore, the appellate court cannot be faulted for arriving at the considered decision that the accused is acquitted. 9. 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_ ”. Crl.L.P.187/17 - : 7 :- 10. 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