Sreenivasan K.S. v. Mohanan Nair and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939** ## **Crl.Rev.Pet.No. 352 of 2017 ()** **------------------------------AGAINST THE JUDGMENT IN CRL.A. NO.82/2016 OF ADDL. SESSIONS COURT-II, THIRUVANANTHAPURAM DATED 17-01-2017. AGAINST THE JUDGMENT IN ST. NO.2259/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM DATED 15-03-2016.** **......** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------------------------------------** **SREENIVASAN K.S., TC 41/1229, KRISHNAVILAS, KURIYATHI, MANACAUD. P.O, THIRUVANANTHAPURAM.** **BY ADVS.SRI.G.HARIHARAN, SRI.PRAVEEN.H., SMT.T.T.SHANIBA, SRI.M.V.VIPINDAS, SMT.JINU ANTONY.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **-----------------------------------------------------------------------** **1. MOHANAN NAIR, AGED 47 YEARS, S/O MADHAVAN NAIR, MALLIKA BHAVAN, TC 41/2667, MANACAUD, THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.R.P.No.352 of 2017 ----------------------------------------Dated this the 22[nd] day of June, 2017 ## _**O R D E R**_ The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.2259 of 2010 on the file of the Judicial First Class Magistrate Court II, Thiruvananthapuram, instituted on the basis of a complaint filed by the first respondent herein. 2. The amount covered by Exhibit P1 dishonoured cheque in question is for Rs.75,000/-. The trial court, as per the impugned judgment rendered on 15.3.2016 has convicted the petitioner for the abovesaid offence and has sentenced him to undergo imprisonment till the rising of the court and to pay an amount of Rs.75,000/- (which is the amount covered by the cheque) along with 9% interest from 27.5.2010 till the date of realisation as compensation to the complainant under Section 357(3) of the Cr.P.C. Aggrieved by the said verdict of the trial court, the petitioner had preferred the Crl.Appeal No.82 of 2016 before the Court of the Additional Sessions Judge - II, Thiruvananthapuram. The appellate Sessions court concerned as per the impugned order rendered on 17.1.2017 has dismissed the abovesaid appeal and has thereby confirmed the impugned conviction and sentence imposed by : **:2::** **Crl.R.P.No.352/17** the trial court. It is aggrieved by the said concurrent verdicts of both the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies conferred under Section 397 read with Section 401 of the Cr.P.C. 3. Though the Criminal Revision Petition was admitted by this Court on 14.3.2017 and the execution of the impugned sentence was suspended as per the interim order passed on that day and further both parties were directed to submit on the next posting date as to whether the matter could be referred for mediation etc. and a copy of the said order dated 14.3.2017 passed by this Court in this case was also directed to be forwarded to R1/complainant while issuing notice, now it is seen as per the endorsement dated 25.5.2017 of the Registry that the notice on R1/complainant has been duly completed, but, there is no appearance for that party. Accordingly, this Court had passed orders on 29.5.2017 and 20.6.2017 to ascertain as to whether R1 is entering appearance. Today also there is no appearance for R1. 4. Heard Sri.G.Hariharan and Smt.T.TShaniba, learned Advocates appearing for the revision petitioner/accused, and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R2/State. As indicated herein above, there is no appearance for R1/complainant in respect of due service of notice on that party. **Crl.R.P.No.352/17** : **:3::** 5. The gist of the case projected in the complaint is that the accused had borrowed an amount of Rs.75,000/- from the complainant on 21.3.2010 for his personal requirement after agreeing to repay the same within two months and that he failed to repay the amount, inspite of repeated request and finally on 27.5.2010, the accused had issued the instant Exhibit P1 cheque dated 27.5.2010 for Rs.75,000/- drawn from his account payable in favour of the complainant and that the cheque when presented resulted in dishonour and that after following the statutory formalities, the instant complaint was initiated which resulted in the trial. 6. During trial, the complainant has examined himself as PW1 and has marked Exhibits P1 to P5 documents. The defence has examined DW1 (Bank Manager) and marked Exhibit D1 Bank statement. The petitioner has raised a contention that it was not he who had received Exhibit P4 statutory demand notice dated 14.6.2010. Both the courts below have overruled this contention as Exhibit P4 was sent by registered post to the accused in his address as shown in the present complaint. It is seen that the petitioner/accused has no quarrel that he had in fact received summons from the trial court which was served in the same address as shown in Exhibit P4 notice. Therefore, certainly the complainant will be entitled to draw the benefit of the presumption : **:4::** **Crl.R.P.No.352/17** envisaged in Section 27 of the General Clauses Act regarding deemed delivery of registered postal article. In this view of the matter, the petitioner does not appear to be in a position to seriously press into service the abovesaid contention regarding the alleged non service of notice. 7. However, Smt.T.T.Shaniba, learned counsel appearing for the petitioner/accused, has raised some serious contentions in this matter. It is pointed out that the basic case set up by the defence during the cross examination of PW1 was that the accused had never issued the abovesaid cheque in question to the complainant as there were no financial transaction between the two and further that the complainant frequently visit the house of the accused and that he had access to the articles kept in the house. Some time prior to 25.5.2009 the petitioner realised that the instant cheque was missing and immediately thereafter, the petitioner had given specific instructions to his Bank for stopping “payment arising out of that cheque” and it has been clearly recorded in the computerised records of the petitioner's Bank regarding the “stop payment” memo issued by the petitioner on 25.5.2009 as against that cheque. It was only later, after receiving summons in this case, the petitioner could realise that the cheque has been misused by the complainant. It is urged that the specific contention of the : **:5::** **Crl.R.P.No.352/17** complainant is that the alleged borrowal transaction took place on 21.3.2010 and that Exhibit P1 dishonoured cheque dated 27.5.2010 was given by the accused to the complainant on 27.5.2010. True that the said account of the accused did not contain any balance as deposed by DW1 and as evidenced by Exhibit D1 Bank Statement at the relevant time. Further it is the admitted case of the complainant that Exhibit P1 cheque was dishonoured as per Exhibit P2 memo dated 29.5.2010 on the ground of “stop payment” instruction, issued by the petitioner/accused. True that DW1 (Bank Manager) has deposed that as per Exhibit D1 Bank statement account for the period from 1.1.2010 up to 31.12.2010, there is no transaction in the petitioner’s account and further that Exhibit D1 would also show that for the period from 1.1.2010 up to 31.12.2010, there was no balance in the petitioner’s account. But it is to be noted that Exhibit D1 does not show as to whether the said Bank account of the accused had any Bank balance as on May 2009 when the petitioner had given the “stop payment” instruction. DW1 has also deposed that the petitioner had given a “stop payment” instruction in respect of the abovesaid account and the said instruction was duly entered in the computer records of the Bank on 25.5.2009, etc. On the basis of these facts, the petitioner's counsel would argue that since it has come out in evidence that the petitioner had given “stop payment” **Crl.R.P.No.352/17** : **:6::** instruction as early as in May 2009, it will go to the root of the prosecution story that the borrowal transaction took place on 21.3.2010 and that the cheque was handed over on 27.5.2010. It is also pointed out that both the courts below have overruled the abovesaid contention of the petitioner on the only basis that there was no balance in the petitioner's account at the relevant time. The appellate court comments about this issue at paragraph 19 on page 9 of the appellate court judgment, which reads as follows : _“Exhibit P2 shows cheque was returned due to stop payment request made by the accused. But the accused had no case that at the time of presentation of Exhibit P1 there was sufficient funds in his account to meet the cheque. He had examined the Manager of the Bank as DW1. Exhibit D1 is the copy of the account statement. The account statement and the evidence adduced by DW1 shows at the time of presentation of Exhibit P1 there was no balance in his account. So why he had issued such a stop payment, though there was no amount in the account at that time, is a matter to be explained. Stop payment memo issued by accused will get significance only when sufficient amount was there in the account. Here the evidence adduced by the accused himself shows, at that time there was no necessity to issue such a stop payment request to the Bank since his account was without any balance. So the case of the accused that Exhibit P1 was the lost cheque, misused by the complainant, cannot be believed for a moment.” (emphasis applied)._ It is seen that Exhibit D1 is for the period from 1.1.2010 up to 31.12.2010. Exhibit D1 does not necessarily show as to whether the petitioner had any balance as on May 2009 when the “stop payment” instruction was recorded. That apart the argument of the petitioner is that since there is indisputable and objective evidence on record that the petitioner had actually sent a “stop payment” memo in May 2009 and as : **:7::** **Crl.R.P.No.352/17** the very case of the complainant was that the borrowal transaction was taken place only subsequently on 21.3.2010, etc., nobody can reasonably presume or infer that the petitioner could have foreseen in May 2009 that there would be a future transaction with the complainant in March 2010 and thereafter mischievously and dishonestly issued such a “stop payment” memo so as to dishonour such a cheque issued much later on 27.5.2010. After hearing the learned counsel for the petitioner, this Court is of the view that this crucial and relevant aspect of the matter has not been duly and carefully analysed and taken into account by both the courts below. It is on this basis that the petitioner would argue that if the abovesaid crucial argument of the petitioner is accepted, then it would cut at the very root of the veracity of the prosecution case, in as much as even according to the complainant the alleged borrowal transaction took place only subsequently in March 2010 and thereafter. Therefore, the non consideration of this crucial contention raised by the petitioner is a serious illegality committed by both the courts below. 8. Yet another contention raised by Smt.T.T.Shaniba, learned counsel appearing for the petitioner, is that Exhibit P4 statutory demand notice dated 14.6.2010 and the complaint are conspicuously silent as to the nature of the transactions between the complainant and the accused **Crl.R.P.No.352/17** : **:8::** which led to the borrowal of the money. Moreover, both the complainant as well as the evidence of PW1 are totally silent as to the relationship between the parties which prompted the complainant to part with such a huge amount without any receipt or written document, etc. It is also pointed out that Exhibit P4 statutory demand notice is totally slient about even the date on which the alleged borrowal transaction taken place and as to the date on which the cheque was given etc. In this regard, Smt.T.T.Shaniba, learned counsel appearing for the petitioner/accused, would place heavy reliance on the legal principles laid down by this Court in the judgment in _**K.K.Divakaran v. State of Kerala**_ reported in _**2016 (4) KLT 233,**_ wherein it was held that non disclosure of such crucial and relevant aspect in the statutory demand notice and the complaint would amount to a suppression on the part of the complainant and which would deprive the accused of his constitutional right to fair and free trial as guaranteed in Article 21 of the Constitution of India. It is pointed out that in a criminal complaint, the accused is essentially called upon by the criminal court to meet the gravamen of the charges and allegations raised therein and if the complainant does not disclose all crucial and relevant aspects which led to the transaction in question and the aspects relating to the execution of the cheque, etc. Then it would entitle the accused for an acquittal, etc. Reference may be made : **:9::** **Crl.R.P.No.352/17** ## to paragraphs 18 and 20 of the abovesaid ruling of this Court in _K.K.Divakaran_ ’s case (supra), which reads as follows : “ _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.”_ . ## 9. The abovesaid arguments raised by the petitioner are also not seen addressed by both the courts below and therefore, such non consideration of those contentions by both the courts below will also amount to an illegality and impropriety which warrants revisional interference. This Court could have proceeded further with the assessment on the merits of these contentions sitting in revisional jurisdiction, but would refrain from doing so as both the courts below have not properly considered these aspects and it is the judicial obligation of the criminal trial court and the appellate court to address : **:10::** **Crl.R.P.No.352/17** themselves to such crucial issues. Such serious arguments cannot be brushed aside merely because the offence alleged is one under Section 138 of the Negotiable Instruments Act. It should be borne in mind that though the offence punishable under Section 138 of the Negotiable Instruments Act is on account of civil wrong being given criminal overtones by the legislative amendments, the fact of the matter remains that essentially the accused is called upon to face allegations in a criminal trial. This Court would have remitted the matter to the trial court to consider the matter afresh, but would refrain from doing so in order to avoid loss of further time. In the facts and circumstances of the case, this Court would deem it fit that at least these crucial and relevant aspects would certainly deserve serious consideration at the hands of the appellate Sessions court. 10. Accordingly, it is ordered that the impugned judgment rendered by the appellate court in Criminal Appeal No.82 of 2016 will stand set aside and the appeal will stand remitted to the said appellate court for consideration afresh. The counsel for the appellant will appear and produce the certified copy of the judgment before the appellate Sessions Court concerned at 11 A.M. on 17.8.2017 on which day the appellate court will fix up a date for hearing and in case the first respondent/ complainant is not present, notice may be issued to that : **:11::** **Crl.R.P.No.352/17** party and then proceed with the hearing of the matter. The appellate court would address the abovesaid contentions raised by the petitioner herein above as well as any of the contentions that may be raised by both sides. Both sides will also give their written argument notes which shall form part of the court records. The appellate Sessions Judge will ensure that all reasonable endeavours are taken to finally dispose of the Crl.Appeal without much delay, at any rate, within a period of four months from the date of production of a copy of this order. The Registry will forward the LCR to the appellate court. With these observations and directions, the Criminal Revision Petition stands finally disposed of. **ALEXANDER THOMAS JUDGE** csl