Subhash v. State of Kerala and Anand

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939** **Crl.L.P..No. 353 of 2017 ()** **---------------------------S.T NO.57/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V (ADDITIONAL MUNSIFF), PALAKKAD** **------------** ## **PETITIONER/COMPLAINANT:** ## **----------------------** **SUBHASH, AGED 37 YEARS, S/O. RAMACHANDRAN, RESIDING AT PADINJARE VEEDU, WEST YAKKARA, PALAKKAD.** **BY ADVS.SRI.K.ABDUL JAWAD** **SRI.U.MUHAMMED MUSTHAFA SMT.A.GRANCY JOSE SRI.M.K.PRASANTH KUMAR** ## **RESPONDENT(S)/STATE AND ACCUSED:** **--------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682031.** **2. ANAND,** **S/O. CHELLAMUTHU, RESIDING AT GOKULAM NIVAS, ERAPPAKKODE HOUSE, KALLEPPULLY POST, PALAKKAD.678005.** **R1 BY PUBLIC PROSECUTOR SRI JESTIN MATHEW** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## ALEXANDER THOMAS, J. ================== Crl.L.P.No.353 of 2017 ================== Dated this the 15[th] day of September, 2017. ## J U D G M E N T This is a petition seeking Special Leave of this Court under Section 378(4) of the Cr.P.C., for filing Crl.Appeal so as to impugn the judgment rendered on 21.06.2017 by the trial court concerned (Court of Judicial First Class Magistrate Court-V, (Addl.Munsiff) Palakkad), whereby, the accused in S.T.No.57/2016 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 above said S.T.No.57/2016. 2. Heard Sri.K.Abdul Jawad, learned counsel appearing for the petitioner (complainant) and Sri.Jestin Mathew, learned Prosecutor for R-1 State. 3. The basic case set up in the complaint is to the effect that the accused had borrowed Rs.2,40,000/- from the complainant and in discharge of the said liability, the accused had issued Ext.P1 cheque dated 07.02.2014 for Rs.2,40,000/- Crl.L.P.No.353 of 2017 - : 2 :- drawn from his account at the Industrial Development Bank of India, Palakkad, in favour of the complainant and that the cheque was dishonoured on the ground of insufficiency of funds as per Ext.P2 memo dated 15.02.2014 and thereupon, the complainant had issued Ext.P3 statutory demand notice dated 12.03.2014 calling upon the accused to pay off the amount shown in the cheque within a period of 15 days from the date of receipt of the said notice and that the said notice sent by Registered Post was received on the address of the accused as evident from Exts.P3(a) and P3(b). The accused had not sent any reply thereto and after following the requisite formalities in that regard, the complainant has instituted the above complaint which resulted in the trial. During the trial, the complainant was examined as PW1 and has marked Exts.P1, P2 and P3 series documents. Defence has not adduced any oral or documentary evidence. The trial court, by the impugned judgment, has found that the accused is entitled for acquittal in view of the following reasons: (A) It has been admitted in evidence that at the time of the initial transaction, the complainant was an Advocate clerk and thereafter, he had given up that profession and was making his livelihood as a driver of an autorickshaw. The trial court found that other than oral assertion about his income from landed Crl.L.P.No.353 of 2017 - : 3 :- property, the complainant has not adduced any material evidence to prove the crucial fact that he had access to funds to raise the huge amount of Rs.2,40,000/- for being advanced as personal loan to the accused at the time of the borrowal transaction in question. The trial court found that the complainant has not produced any material evidence to show his income at the time of the transaction and that he had not produced any material evidence to prove the crucial fact about his access of funds for raising such a huge amount. The Apex Court in the judgment in John K.Abraham v. Simon C. Abraham reported in (2014) 2 SCC 236 has categorically held that in order to draw the benefit of the statutory presumption under Sec.118(a) and Sec.139 of the Negotiable Instruments Act, the burden is quite heavy upon the complainant to prove that he had access of funds for advancing the money to the accused at the relevant time of the borrowal transaction in question. The said view of the Apex Court has been followed in decisions as in K.Subramani v. K.Damodara Naidu reported in (2015) 1 SCC 99, K.Prakashan v. P.K. Surenderan reported in (2008) 1 SCC 258, etc. In the light of these aspects that the trial court has found that since the complainant has miserably failed to prove his source of funds at the relevant time, he is not entitled to get the benefit of the Crl.L.P.No.353 of 2017 - : 4 :- statutory presumption under Sec.118(a) and Sec.139 of the Negotiable Instruments Act and the said considered view taken by the trial court cannot be said to be perverse or illegal. The trial court has also found that PW1 has admitted that he has got a savings bank account with the District Co-operative Bank and that he could not show that he had an amount exceeding Rs.20,000/- in his bank account at any point of time. Further, PW1 has submitted that he has no bank account in his name. (B) Further, the complainant has not disclosed in the complaint, statutory demand notice etc., about the nature, place and date of the borrowal transaction and about the date on which the cheque has been handed over etc. These crucial aspects are not even stated in the proof affidavit. 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 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 and that very often, unscrupulous complainants refuse to do so with the ulterior objective of denying the accused a fair trial which is guaranteed under Article 21 of the Constitution of India. An accused in a complaint filed under Section 142 of the N.I. Act is also entitled Crl.L.P.No.353 of 2017 - : 5 :- to know before the trial the particulars of the accusation and allegations against him and suppression of these particulars in the complaint alone is sufficient to order acquittal. It is slightly profitable to refer to paras 18 and 20 of the above said decision of this Court 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. **==> picture [212 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 these aspects, the trial court cannot be found fault with for having held that the accused is entitled for acquittal in view of the crucial suppression of the material facts in the complaint and in the proof affidavit. Crl.L.P.No.353 of 2017 - : 6 :- (C) PW1 (complainant) has deposed that he does not know as to who has written Ext.P1 cheque and that the accused has signed in his presence. The trial court has referred to para.27 of the judgment of this Court in K.K.Divakaran's case (supra) which reads as follows: “A dishonest complainant who takes a signed blank cheque leaf from the accused or who misuses a signed blank cheque taken from the accused by someone else would naturally disown the liability to prove the identity of the person who entered the particulars in it stating that the accused brought to him a written up cheque and signed it in his presence. A Judicial Officer unless he has taken holidays of his common sense can easily see through this game.” Accordingly, the trial court found that the version of the complainant raises suspicions and doubts. (D) During cross examination, PW1 has admitted that nobody has seen PW1 giving money to the accused. But, PW1 has deposed that a friend accompanying the accused has seen the accused giving the cheque to PW1, but that PW1 does not know as to who is the friend. PW1 has also admitted that the ink of the signature in Ext.P1 cheque has got some darkness and that the trial court has found that it is clear from a perusal of Ext.P1 cheque and the ink of the signature of the accused and the ink of some other writing of Ext.P1 cheque are different and that this would suggest that the signature and other written entries in the cheque were not effected simultaneously. The basic defence set Crl.L.P.No.353 of 2017 - : 7 :- up by the accused is to the effect that the accused was working as an advocate clerk, had taken a personal loan from one Sri.Ashraf who is also working as an advocate clerk and at that time, he had given a blank signed cheque to the said Ashraf and that Sri.Ashraf had misused the cheque by handing over the same to the present complainant, who is also an advocate clerk. PW1 has deposed that as admitted in his evidence that at the relevant time, he, the accused, the aforesaid Sri.Ashraf were acquaintances etc. These circumstances has also been considered by the trial court to hold that the evidence given by PW1 is quite weak and feeble and cannot be a safe basis for rendering a conviction against the accused in a criminal case. It is in the light of all these aspects that the trial court has come to the considered conclusion that the accused is entitled for the benefit of acquittal. The said factual findings made by the trial court cannot be said to be vitiated by perversity or illegality. Merely because another view is reasonably plausible, it is not a ground to interfere with the findings of acquittal. 4. 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 Crl.L.P.No.353 of 2017 - : 8 :- 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”. In the light of these aspects, this Court is of the considered view 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 lacks merit and accordingly, the same is dismissed. Sd/- ## ALEXANDER THOMAS, JUDGE Bb/19/9/2017 _[True copy]_ _P.A to Judge_