SUDHIKUMAR v. ARUN & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 7TH DAY OF AUGUST 2017/16TH SRAVANA, 1939** ## **Crl.L.P..No. 298 of 2017 ()** **---------------------------CC. NO.1144/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHERTHALA. ....** ## **PETITIONER/COMPLAINANT:** **-------------------------------------------** **SUDHIKUMAR, S/O. SIVASANKARAN NAIR, SREEVILASAM, VARANAN P.O., CHERTHALA.** **BY ADVS.SRI.V.P.MOHAMMED NIYAZ, SMT.AUGNES LOVELY FRANCIS, SRI.M.P.MUHAMMAD FAZIL, SRI.K.RONALD JOSE.** ## **RESPONDENTS/ACCUSED & STATE:** **----------------------------------------------------** **1. ARUN, S/O.P.R.R. BABU, PUTHUMANAPPALLI VEEDU, CMC - 2, VELORVATTOM, CHERTHALA P.O., PIN-688 501** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R1 BY ADV. SRI.C.S.MANU R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 07-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. **Crl.L.P..No. 298 of 2017** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A1 COPY OF THE ORDER DATED 03/12/2013 IN UN NUMBERED AS CRL.LP. ....../13 OF THIS HON'BLE COURT. ANNEXURE A2 COPY OF THE JUDGMENT DATED 05/08/2014 IN CRL. APPEAL NO.6/2014 OF THE HON'BLE SESSIONS COURT, ALAPPUZHA.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## ALEXANDER THOMAS, J. -------------------------Crl.L.P. No. 298 of 2017 ------------------------------Dated this the 7[th] day of August, 2017 ## ORDER This is an application seeking special leave of this Court under Section 378 (4) of Cr.P.C. to file criminal appeal so as to impugned judgment dated 17.08.2013 on the file of the Judicial First Class Magistrate Court-II, Cherthala whereby the accused in C.C.No.1144 of 2007 has been acquitted for the offence punishable under Section 138 of Negotiable Instruments Act. The petitioner herein is the complainant in C.C.No.1144/2007 and the first respondent herein is the accused therein. 2. Heard Sri.V.P.Mohammed Niyas, learned counsel appearing for the petitioner/accused, Sri.C.S.Manu, learned counsel for R1 and Sri.Saigi Jacob Palatty, learned Public Prosecutor for R2/State. 3. The gist of the case set up by the complainant is that due to prior friendship, the accused had requested the complainant on 10.06.2007, to advance an amount of Crl.L.P. No. 298 of 2017 2 Rs.4,00,000/- for his urgent personal needs and that the complainant had advanced Rs.4,00,000/- in cash to the accused on 10.06.2007 and that later in discharge of that liability, the accused had issued Ext.P1 cheque dated 18.07.2007 for Rs.4,00,000/- drawn from his account and payable in favour of the complainant. The cheque when presented was dishonoured on the ground of insufficiency of funds as per Ext.P2 memo and the same was returned by Ext.P3. Then the complainant had issued Ext.P4 statutory demand notice calling upon the accused to pay off the amount covered by the cheque within a period of 15 days from the date of receipt of the said notice. Since the amount was not paid, the complainant, after fulfilling the requisite formalities, had instituted the present complaint which resulted in the trial. During the trial the complainant has examined himself as PW1 and marked Exts.P1 to P5 documents. The defence has not adduced any oral or documentary evidence. 4. The basic defence set up by the accused in this Crl.L.P. No. 298 of 2017 3 case is that he had earlier borrowed an amount of Rs.10,000/- from the complainant in July 2014 and as security in that transaction, the present cheque was given as blank signed one and the above amount was repaid the complaint had not returned the blank signed cheque, and the said cheque has been misused for filing the present complaint and that no transactions has occurred between the parties as alleged in the complaint etc. Since the accused has suggested that the blank signed cheque was given to the complainant, there is no serious dispute that the signature of the cheque belongs to him and that the cheque has been drawn from his account. Therefore going by the legal principles laid down by the Apex Court in Rangappa v. Sri Mohan (2010) 11 SCC 441, T.Vasanthakumar v. Vijayakumari (2015) 8 SCC 378, the benefit of the statutory presumption under Section 139 of NI Act could be claimed by the complainant in the facts of this case. However, the trial court has held that the accused has successfully and effectively rebutted the said statutory Crl.L.P. No. 298 of 2017 4 presumption in view of the following reasons: (A). The complainant has not let in sufficient evidence to convince the court as to the circumstances which induced him to part with such a huge amount of Rs.4,00,000/- to the accused without any security, documentation or receipt. The complainant has even taken the case that he had borrowed sum amount from his immediate relatives and had also received certain amounts due from some other business concerned, for advancing the huge amount of Rs.4,00,000/- to the accused. The trial court felt that no convincing circumstances have been brought out in evidence so as to justify the conduct of the complainant in advancing such huge amount without any security or receipt and as to the nature and proximity of the relationship between the parties, which induced the complainant to part with such a huge amount, without any receipt or security. The trial court has come to the Crl.L.P. No. 298 of 2017 5 conclusion that the case set up by the complainant is not convincing and that there is a strong element of suspicion about the credibility and correctness of the case set up by the complainant. The Apex Court has held in Vijay v. Laxman and another (2013) 3 SCC 86 that if the case set up by the holder of the cheque/complainant is dubious, then the initial presumption under Section 139 of NI Act itself will come to an end. Therefore, the trial court cannot be faulted with for arriving at a conclusion that the evidence let in by the complainant is not a safe basis for convicting the accused for the aforesaid offence. (B). Though the complainant has stated that he is a businessman engaged in fabrication of steel furniture and that he is having 14 employees working under him and he is an income tax assessee, etc., no material has been made available by the complainant to establish all those aspects Crl.L.P. No. 298 of 2017 6 and also to prove the crucial fact that he had access of funds on 10.06.2007 (date of alleged borrowal), to raise such a huge amount of Rs.4,00,000/- for being advanced to the accused. The complainant would depose that the father of the accused had contacted him on 10.06.2007 at 9.30 a.m. in the morning for financially helping the accused and that the complainant had later contacted two other business concerns (M/s.Sarath Furniture and M/s.Subash Furniture), from whom monies were owed to him and that he had collected monies from those business concerns and that he could also raise the balance amount from his immediate relatives etc. and that he had thus advanced the amount of Rs.4,00,000/- to the accused on 10.06.2007 evening. The trial court found that 10.06.2007 is a Sunday and ordinarily it may be very difficult to raise those monies from business concerns on a Sunday which is a holiday and further Crl.L.P. No. 298 of 2017 7 that no material evidence has been let in by the accused to show that he had access of funds to raise such a huge amount of Rs.4,00,000/- in order to effect the borrowal of that money to the accused etc. It has been held by the Apex Court in John K.Abraham v. Simon C. Abraham and another (2014) 2 SCC 236 has held that in order to draw the presumption under Section 118(a) read with Section 139 of the Negotiable Instruments Act, the burden is heavily upon the complainant to prove that he had requisite funds for having advanced the money to the accused in the borrowal transaction. Similar view has been taken by the Apex Court in the case in K.Subramani v. K.Damodara Naidu (2015) I SCC 99, and K.Prakashan v. P.K.Surenderan (2008) 1 SCC 258. As a matter of fact, if the complainant was running a business concern successfully as stated by him, then it was quite easy for him to produce the requisite materials and Crl.L.P. No. 298 of 2017 8 documentary evidence including bank records to show that he had access of funds on 10.06.2007 to make the borrowal of Rs.4,00,000/- to the accused. The complainant has failed to produce any material evidence, and therefore, the trial court cannot be found fault with for not believing the case of the complainant. Moreover in view of the aforesaid Apex court rulings, the benefit of the statutory presumption itself cannot be available to the petitioner, as he has failed to prove his source of funds. It is on the basis of these factual aspects that the trial court has found that there is no acceptable evidence to convict the petitioner and has therefore acquitted the accused. The said findings and facts made by the trial court cannot be said to be perverse or unreasonable or illegal. 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:- Crl.L.P. No. 298 of 2017 9 “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.” 6. 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 constrained to take the view that this petition is liable to be dismissed and it is ordered accordingly. sd/ALEXANDER THOMAS, JUDGE AMV/08/08/2017 /TRUE COPY/ P.A.TO JUDGE