Sree Gokulam Chit & Finance Co. Pvt. Ltd. v. State of Kerala and Nishad K.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 11TH DAY OF JULY 2017/20TH ASHADHA, 1939** ## **Crl.L.P..No. 238 of 2017 ()** **----------------------------** ## **AGAINST THE JUDGMENT IN ST 2447/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1 SULTHANBATHERY DATED 15-02-2017** **------------------** ## **PETITIONER/COMPLAINANT:** **------------------------------------** **SREE GOKULAM CHIT & FINANCE CO.PVT.LTD KIZHAKKEBAGATH COMPLEX, SULTHAN BATHERY, REPRESENTED BY IT'S AUTHORIZED REPRESENTATIVE, ASSISTANT MANAGER IN SULTHAN BATHERY BRANCH, MR.K.N.SUNIL, S/O.NARAYANAN K.A., KANDAMCHIRAYIL HOUSE, MYLAMBADI POST, PURAKKADI, WAYANAD.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR** ## **RESPONDENT(S)/STATE & ACCUSED:** **----------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** ## **2. NISHAD K.S.** **AGED 34 YEARS, S/O.SREEDHARAN K.P., KARAKUNNEL HOUSE, KALANADIKOLLY POST, KALLUVAYAL, PULPALLY, WAYANAD DISTRICT, PINCODE-673579.** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 11-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sdr/-** ALEXANDER THOMAS, J. ================== Crl.L.P.No. 238 of 2017 ================== Dated this the 11[th] day of July, 2017 O R D E R This is an application seeking special leave of this Court under Sec. 378(4) of the Cr.P.C. to institute criminal appeal for impugning the judgment dated 15.2.2017 rendered by the trial court concerned (Judicial First Class Magistrate's Court-I, Sulthan Bathery), whereby the accused (R-2 herein) in S.T.No.2447/2015 has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act. The petitioner herein is the complainant in S.T.No.2447/2015. 2. Heard Smt.N.Sudha, learned counsel appearing for the revision petitioner (complainant) and Sri.Justin Mathew, learned Prosecutor appearing for R-1 State. In the nature of the order that is proposed to be passed in this petition, notice to R-2 (accused) will stand dispensed with. 3. The gist of the allegations in the complaint is that the accused had subscribed to a chit conducted by the complainant company and that he had defaulted making payments and the complainant had demanded the entire dues from him. Thereupon the accused had voluntarily come forward to the office of the complainant company and had executed and issued Ext.P-1 cheque dated 20.8.2012 for Rs. Crl.L.P.238/17 - : 2 :- 90,036/-, in discharge of the said liability and the cheque when presented by the complainant was resulted in dishonour, etc. Then the complainant had issued statutory demand notice and since the accused did not make the payment, the complaint was instituted, which resulted in the instant trial. 4. The assistant manager of the complainant company was examined as P.W-1 and had marked Exts.P-1 to P-8 documents. The defence had marked Ext.D-1 series, but had not adduced any oral evidence. 5. The specific defence taken up by the accused in this case is that he had never voluntarily issued Ext.P-1 on 20.8.2012, but that he had earlier given the said cheque as a blank signed one as security during the commencement of the chit transaction. Though the accused had taken up the defence that he had never executed Ext.P-1 cheque on 20.8.2012, it can be seen from the defence case set up during the cross examination of P.W-1 that the accused has not raised serious objections regarding the presence of his signature in the said cheque. Therefore, it can be seen that broadly the accused has admitted that the signature of the dishonoured cheque pertains to him and that the cheque is drawn from his account. Therefore, in the light of the legal principles discernible from various decisions as in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441, Vasanthakumari v. Vijayakumar, reported in (2015) 8 SCC Crl.L.P.238/17 - : 3 :- 378, etc. the benefit of statutory presumption under Sec. 139 of the N.I. Act, could be claimed by the complainant in the facts of this. However, from a perusal of the impugned judgment, it can be seen that the trial court has taken the firm view that the accused could successfully rebut the statutory presumption and that thereafter the complainant has not adduced sufficient evidence to prove their case and that the accused is thus entitled to acquittal. The reasonings on the basis of which the trial court has come to this considered conclusion are as follows: (A) The trial court found that both the complaint as well as the proof affidavit are conspicuously silent about the crucial and relevant material particulars regarding the transaction, like the commencement and termination of the chit, date of bidding of chit amount, distinct calculation of the default amount and the interest and the rate of interest, etc. True that P.W-1 has deposed in his cross examination about some of these details. It is also true that the complainant has also a case that these details are available in Ext.P-8 statement of accounts. However, it is to be borne in mind that an accused in a criminal trial is essentially called upon to defend himself of the gravamen of the charges and allegations raised in the complaint. The said allegations relating to the transactions, which led to the liability as well as the resultant facts relating to the execution and issuance of the dishonoured cheque, etc., which constituted the offence under Sec.138 of the N.I. Act, should be Crl.L.P.238/17 - : 4 :- distinctly and cogently stated in the complaint. Otherwise, the complainants will have the flexibility and maneuverability to change their case after knowing about the defence stand and this would amount to denying the right to fair trial guaranteed to an accused in terms of Art.21 of the Constitution of India. When the complainant has specific case as to how the particular transaction, which is the foundation for the offence, has happened, then the same should be cogently and specifically averred in the complaint as otherwise it would give undue advantage to the complainant and it would destroy the level playing field expected to be given to the adversarial parties, viz., the accuser and the complainant. The guarantee of reasonable opportunity to an accused to face his acusers in a criminal trial, is a necessary component of the concept of free trail. More particularly, the trial court has even found that these material particulars have not even stated in the proof affidavit. It is only during the cross examination that P.W-1 would divulge these details. This was held to be fatal to the very foundation of the prosecution case. This, the trial court found, would be fatal to the very foundation of the prosecution case. In the decision in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, this Court has held in paras 18 and 20 thereof 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 Crl.L.P.238/17 - : 5 :- 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 [162 x 6] 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.” In the light of the above legal principle laid down by this Court, the trial court cannot be found fault with for arriving at the considered view that the omission to state material and crucial particulars in the complaint would amount to nothing but suppression of material facts, which would seriously prejudice the right to free trial to the accused and that the accused is entitled for the benefit of acquittal, etc. (B) Further the trial court has also found that the complainant has not produced the chit variola and the authority of the complainant company to claim interest on the defaulted amounts. It has been admitted by P.W-1 in cross examination that the amount covered by Ext.P-1 cheque is inclusive of the interest. The trial court held that without producing such relevant documents, there is no safe material Crl.L.P.238/17 - : 6 :- before the court to hold that the accused is liable to pay the amount covered by the cheque and that therefore in the absence of such convincing materials, the evidence adduced by the complainant cannot be the safe basis for resting a conviction against the accused. It is on these findings that the trial court has come to the considered conclusion that the accused is entitled for acquittal. Merely because another view is plausible, is no ground to interfere with the considered verdict of acquittal. 6. 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_ ”. 7. On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the Crl.L.P.238/17 - : 7 :- 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