Sree Gokulam Chit & Finance Company (P) Ltd. v. State of Kerala and Abdul Jaleel

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 6TH DAY OF OCTOBER 2017/14TH ASWINA, 1939** **Crl.L.P..No. 375 of 2017 () ----------------------------** **ST 2722/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, SULTHAN BATHERY.** **........** ## **PETITIONER/COMPLAINANT:** **-----------------------** **SREE GOKULAM CHIT & FINANCE COMPANY (P) LTD., KIZHAKKEBAGATH COMPLEX, SULTHAN BATHERY, REP.BY IT'S AUTHORIZED REPRESENTATIVE, SRI.K.N.SUNIL, S/O.NARAYANAN.K.A, AGED 49 YEARS, KANDAMCHIRAYIL HOUSE, MYLAMBADI POST, PURAKKADI, S.BATHERY TALUK, WAYANAD.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR** ## **RESPONDENTS/STATE AND ACCUSED:** **------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. ABDUL JALEEL.N S/O.NOOR MUHAMMAD RAVUTHAR, SABEENA MANZIL, KARIAMBADI POST, PALAKKAMOOLA, MEENANGADI-673591.** **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 06-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **ALEXANDER THOMAS, J.** ## **----------------------------** ## **Crl.L.P.No. 375 of 2017** **----------------------------** Dated this the 6[th] day of October, 2017 ## **ORDER** Petitioner seeks special leave of this Court under Sec.378(4) of the Code of Criminal Procedure to file Criminal Appeal so as to impugne the judgment dated 31.03.2017 rendered by the trial court concerned (Judicial First Class Magistrate Court, Sulthan Bathery), whereby the accused in S.T.No.2722 of 2015 has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner herein is the complainant and the 2[nd] respondent herein is the accused in the above said S.T.No.2772 of 2015. 2. Heard Smt.N.Sudha, learned counsel appearing for the petitioner(complainant) and Sri.Saigi Jacob Paletti, learned Prosecutor appearing for R1, State. 3. The brief of the case of the complaint is to the effect that the complainant is a Private Limited Company registered under the provisions of the Companies Act, 1956 and is engaged in the business of chit transactions and that the accused is the guarantor of one Sri.A. Ahammad Ansar, who was the subscriber to a chit Crl.L.P.No. 375 of 2017 2 conducted by the complainant for a sala amount of Rs.2 lakhs and that the subscriber bid the chit and received the bid amount and accused was the surety for the said subscriber and after receiving the prize amount, the subscriber had defaulted the payment and thereupon the complainant had issued notice to the subscriber and the surety to make the payment of the defaulted amount. Thereupon the accused had voluntarily approached the branch office of the complainant company and had voluntarily issued Ext.P1 cheque dated 20.09.2013 for Rs.1,06,500/- in discharge of the above said amount drawn by the private complainant company. The cheque when presented resulted in dishonour and after issuing the statutory demand notice, the complainant has initiated the present complaint which led to the trial. The defence case set up by the accused is that the blank signed cheque given by him has been misused in the present complaint. During the trial, an official of the complainant company has been examined as PW1 and complainant has marked Exts P1 to P9 documents. Defence has not adduced any oral or documentary evidence. The trial court has found that the accused is entitled for the benefit of acquittal, due to the following reasons:- (A) The trial court found that the complainant has suppressed material particulars regarding the transaction in question and that Crl.L.P.No. 375 of 2017 3 none of the crucial details of the transaction which are mentioned in the proof affidavit filed in lieu of the chief examination have been even remotely mentioned in the complaint. The trial court found that the major details in the alleged transaction like the date of commencement of the chit, the date of termination of the chit, the date of giving of the auction chit amount to the subscriber, the agreed rate of interest and the exact amount due from the subscriber as on the date of issuance of cheque, the date on which the cheque was handed over to the complainant etc are mentioned in the complaint. Therefore the trial court held that such suppression of crucial material particulars would amount to denial of fair trial to the accused and the accused is entitled to get benefit of acquittal in the light of legal principles laid down by this Court in **K.K.Divakaran v. State of Kerala** reported in **2016(4) KLT 233.** In the above said decision, this court has held that in a criminal case, the accused should be informed and appraised before the trial not only of the nature of the offence but also the material particulars of the transaction which are necessary for him to effectively meet and rebut the case against him. That unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a constitutional fundamental right guaranteed under Article 21 of the Constitution of India. An accused in a Crl.L.P.No. 375 of 2017 4 complaint filed under Section 142 of the NI Act is also entitled to know before the trial the material particulars of the accusations and allegations raised against him. Suppression of these material particulars in the complaint alone is sufficient to order his acquittal. It is profitable to refer paras 18 and 20 of the above said decision of this Court reported in K.K.Divakaran's case (supra) which reads 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._ _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 said aspects, the trial court cannot be found fault with having taken the view of that the accused is entitled for the benefit of acquittal in view of the serious suppression of material particulars in the complaint. Crl.L.P.No. 375 of 2017 5 (B) Further the trial court has also found that Ext.P8, account statement and Ext.P9 chit agreement dated 7.09.2012 were produced not along with the complaint but belatedly about three years after the filing of the complaint. On going by the case of the complainant those documents were available with them even before the filing of the complaint and the trial court found that the subsequent production of Exts P8 and P9 documents would raise serious suspicion about the very case set up by the complainant. Further the trial court has also found that the very case set up in the complaint is to the effect that the amount covered by the dishonoured cheque includes also the interest thereon as per the agreement. Whereas at the time of giving evidence, PW1 has deposed that no interest has been charged. The trial court found that the above said aspects raises strong suspicions about the correctness of the liability figure shown in the cheque. Moreover the trial court has also found that the variyola which is a crucial and relevant document, has not been produced and marked before the trial court and that the non production of that vital document is fatal to the case of the complainant company. 4. In the light of these aspects the trial court has come to the considered conclusion that there are no safe and reliable evidence before the court to be convinced about the exact liability that was ## Crl.L.P.No. 375 of 2017 6 owed by the subscriber to the complainant company at the time of the alleged issuance of Ext.P1 cheque dated 20.09.2013. It is in the light of all these aspects, the trial court has taken the considered view that the evidence adduced by the complainant cannot be the safe basis for convicting the accused and that the accused is therefore entitled for the benefit of acquittal. The said considered findings and facts made by the trial court cannot be said to be vitiated by perversity or illegality. Merely because another view is plausible is not a ground for this Court to upturn the considered verdict of acquittal rendered by the trial court. 5. 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_ Crl.L.P.No. 375 of 2017 7 _that the trial court's order of acquittal bolsters the presumption of innocence_ ”. In the facts and circumstances of the case, this Court is of the opinion that even if the appeal is entertained, there is not much scope to reverse the judgment of acquittal rendered by the trial court. Accordingly, it is ordered that the said petition is devoid of merit and the same is accordingly dismissed. Sd/- **ALEXANDER THOMAS JUDGE** //True Copy\\ P.A to Judge IAP