Thampy Sukumaran v State of Kerala and Abdul Rahim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 31ST DAY OF JULY 2017/9TH SRAVANA, 1939** ## **Crl.Rev.Pet.No. 890 of 2017 ()** **------------------------------IN CRA 298/2012 of THE COURT OF THE ADDL.SESSIONS JUDGE-II,KOLLAM IN ST 250/2011 of J.M.F.C. - III, KOLLAM** **-----------------------------------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED :** **--------------------------------------------------------------------------** **THAMPY SUKUMARAN AGED 64 YEARS, S/O.SUKUMARAN, BHARAT PETROLEUM LTD., KOCHUVELI, TITANIUM POST, THIRUVANANTHAPURAM 695021** **BY ADVS.SRI.G.P.SHINOD SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.RAM MOHAN.G.** ## **RESPONDENT(S)/RESPONDENTS/STATE AND COMPLAINANT :** **------------------------------------------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY ITS PUBLIC PROSECUTOR, AT THE HIGH COURT OF KERALA AT ERNAKULAM** ## **2. ABDUL RAHIM** **AGED 65 YEARS, S/O.ABUBECKKER, HASANA DALE, 128, LAKSMANA NAGAR, ASRAMAM POST, KOLLAM DISTRICT, 691002, REPRESENTED BY POWER OF ATTORNEY HOLDER, IBRAHIMKUTTY, AGED 71 YEARS, S/O.ABUBECKKER, MOOLEYIL VILAYIL HOUSE, KANJAVELI POST, KOLLAM DISTRICT, 691602** **R1 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW R2 BY ADV. MANU RAMACHANDRAN(NO MEMO) R2 BY ADV. SRI.MANU RAMACHANDRAN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VS** ## ALEXANDER THOMAS, J. ============================= Crl.R.P.No.890 of 2017 ============================ Dated this the 31[st] day of July, 2017 ## ORDER The petitioner is the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the NI Act' for short) in S.T.No.250/2011 on the file of the Judicial First Class Magistrate Court-III, Kollam instituted from the complaint filed by the second respondent herein. Ext.P1 dishonour cheque dated 11.04.2009 is for Rs.1,00,000/-. The trial court as per the impugned judgment rendered on 04.10.2012 has convicted the petitioner for the above said offence and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.1,00,000/- under Section 357(3) of Cr.P.C., with the default sentence clause of simple imprisonment for 1 month. The appellate court as per the impugned judgment rendered on 31.08.2016, (Court of the II Additional Sessions Judge, Kollam) in Crl.M.A.No.298/2012 has dismissed the said appeal thereby confirming the conviction and sentence. It is aggrieved by these concurrent findings of the courts below that the petitioner has Crl.R.P.No.890 of 2017 -2- preferred this Crl.Revision Petition by taking recourse of the remedies conferred under Sections 397 and 401 of Cr.P.C. 2. Heard Sri.G.P.Shinod, the learned counsel for the petitioner(accused), Sri.Justine Mathew, the learned Public Prosecutor appearing for the first respondent/State and Sri.Manu Ramachandran, the learned counsel appearing for the second respondent (complainant). 3. Apart from the various contentions raised in this matter, Sri.G.P.Shinod, the learned counsel for the revision petitioner/accused has also placed emphasis on the following contentions:- (a) It is urged that the statutory demand notice, complaint and the proof affidavit as well as the other evidence rendered by PW1 are conspicuously silent as to the nature and details of transactions allegedly entered between the complainant and the accused, on the basis of which the alleged liabilities are sought to be made out. Further it is pointed out that not even the day on which the borrowal has taken place or on the day on which the cheque has Crl.R.P.No.890 of 2017 -3- been handed over has stated either in the demand notice, complaint or in the proof affidavit. That it is only in the cross examination, the power of attorney holder of the complainant would depose that the borrowal transaction took place sometime in February 2009 and he cannot remember the day on which it took place, even though he would claim that he had directly seen the said transaction etc. It is thus urged by the learned counsel for the petitioner on the basis of the legal principles laid down by this Court in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233 that 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 and that 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 rebut the case Crl.R.P.No.890 of 2017 -4- against him. Unscrupulous complainants refused to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution of India. That an accused in a complaint case filed under Section 142 of the NI Act 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. It should be relevant to note the legal principles laid down by this Court in paragraph 18 and 20 of K.K.Divakaran's case (supra), which reads thus:- “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 11.01.1999 for Rs.2,55,000/- in discharge of a debt. There is no explanation why these Crl.R.P.No.890 of 2017 -5- material facts were not disclosed in a 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. xxxxxxxx 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.” On the strength of the above said decision, the learned counsel for the petitioner (accused) would Crl.R.P.No.890 of 2017 -6- argue that the case of the complainant liable to be followed on this ground alone and that the accused is entitled for the benefit of acquittal. It is pointed out that both the courts below have committed a grave illegality and impropriety in overlooking these crucial aspects of the matter and in convicting the petitioner and the impugned judgments are liable to be set aside on this ground alone. (b) It is urged that the complaint has not been filed directly by the complainant but through a power of attorney holder(PW1), who is the brother of the complainant. The transactions in question alleged in the complaint would amount only to personal transactions between the accused and the complainant. The complainant is stated to be a proprietor of a petrol pump licenced by the Bharat Petroleum Corporation Ltd. It is stated by PW1 that the complainant is working abroad and that there is a regular Manager in the said petroleum pump. Though it is stated in the complaint that the power Crl.R.P.No.890 of 2017 -7- of attorney holder has direct knowledge about the transaction, no averments are made in the compliant as to the circumstances under which he had the opportunity to have direct knowledge of the personal transactions between the complainant and the accused. Still further, it is argued that no evidence has been let in by PW1 even in the proof evidence or in the cross examination as to the circumstances under which he had the opportunity to have direct knowledge of the personal transactions between the complainant and the accused. The handing over the cash and the handing over of the cheque are stated to have occurred in the petroleum pump and PW1 has admitted that the manager is running the affairs of the petroleum pump. No evidence has been let in by PW1 to show the circumstances under which the court should reach a reasonable inference that he did have the opportunity to witness the transactions not only of handing over the cash but also the Crl.R.P.No.890 of 2017 -8- subsequent transaction of handing over of the cheque. In cross examination it has been specifically suggested that PW1 did not have any opportunity to be in the petroleum pump to witness the said transactions. No explanation thereto has been given by PW1 to the said questions raised at the time of cross examination. In cross examination one of the specific questions put forwarded by the defence counsel is as follows :- Qus.ÈßBZAí ¨ çµØßæa §¿ÉÞ¿áµæ{ µáùߺîí ÏÞæÄÞKᢠ¥ùßÏßÜï ®Kí ÉùÏáKá? Ans. ©JøÎßÜï Qus. ÕÞÆßAí ÄÞWÉøc¢ §ÜïÞæÄ çµØí ²øá ÎáÄcÞVæa ÌÜJßW ÈßBZ ¨ çµØí È¿JáµÏÞæÃKí ÉùÏáKá? Ans. ©JøÎßÜï Therefore it is pointed out that since PW1 has not given any answer to these specific questions it is only to be inferred that he has agreed as regards to the correctness of the said defence suggestions. Crl.R.P.No.890 of 2017 -9- Further it is pointed out that PW1 has stated that though the complainant is in Saudi Arabia, the marriage of the complainant's son is conducted on 29.04.2012. Whereas PW1 has given his evidence during cross examination on 23.04.2012. The another pointed question PW1 would say that he is not sure whether the complainant will come to attend the marriage of the complainant's son. It is argued that from this answer it is clear that PW1 knew that the complainant's son marriage is on 29.04.2012 and that any person would have awaited till the complainant arrives so that he could have conveniently given evidence, in support of his case. It is argued that the fact that the complainant has not chosen to give any evidence though he would have been available during the relevant time, is a clear indication that the complainant has no interest to prosecute the case. (c) True that PW1 has blandly stated in his chief affidavit as well as in the cross examination that he Crl.R.P.No.890 of 2017 -10- has witnessed the transaction. But since no evidence has been given by him to convince the court as to the circumstances under which he had the opportunity to witness the two separate transactions, would clearly show that it is highly unsafe to rest a conviction on the basis of such feeble evidence given by the PW1 regarding his alleged direct knowledge about the transaction. Therefore it is argued that it is crystal clear from the evidence that no convincing evidence has been let in by PW1 to prove before the court that he did have the opportunity to witness the two separate transactions of handing over the money and subsequently handing over the cheque and that the accused is entitled for the benefit of acquittal, in view of the fact that PW1's evidence is not sufficient and safe to rest a conviction. 4. Per contra, Sri.Manu Ramachandran, the learned counsel for the first respondent/complainant would argue that the evidence tendered by PW1 is more than sufficient to justify a Crl.R.P.No.890 of 2017 -11- conviction and sentence imposed on the petitioner. Further it is pointed out that the evidence tendered by PW1 regarding the execution and issuance of the dishonour cheque in question has not been properly rebutted by the accused during cross examination of PW1 etc. Further that the very defence of the accused is to the effect that he had borrowed some money from the complainant and that he had repaid the amounts to the manager of the petroleum pump run by the complainant and that this would clearly show that he had admitted the monetary transactions. 5. In response to this contention, Sri.G.P.Shinod, the learned counsel appearing for the revision petitioner (accused) would contend that the accused has raised a specific defence version that he had given the instant cheque for a previous transaction entered into the complainant and that the entire amount in that regard was returned back to the manager of the complainant's petrol pump etc and further it is pointed out that only if the complainant has proved his case regarding the transactions which lead to the liability as well as the execution of the cheque etc, could a liability be cast upon the accused to rebut Crl.R.P.No.890 of 2017 -12- the said version of the complainant. 6. It is also pointed out by Sri.G.P.Shinod, learned counsel appearing for the revision petitioner/accused that the best evidence would have been adduced only from the complainant himself and since he has not chosen to give any evidence and that it could be reasonably inferred that he would have been certainly available in Kerala on 29.04.2012, which is only one week after the deposition of PW2 in cross examination and that the fact that the complainant has refused to give any evidence would show that he has withheld the best evidence and that therefore an adverse inference should be drawn against the complainant. 7. On a consideration of the rival pleas, this Court is of the considered view that the aforementioned specific contentions urged by the petitioner has not been considered in its proper factual and legal perspective by the both the courts below. Such non consideration of the vital and relevant aspects of the matter by both the courts below would amount to serious illegality and impropriety in the rendering of the impugned judgments by both the courts below. Therefore the matter Crl.R.P.No.890 of 2017 -13- certainly deserves a second look by the courts below. Though this Court could have remitted the matter to the trial court, this Court is of the view that such a cause of action might entail unnecessary delays. Therefore the ends of justice will more than sufficiently met if the matter is remitted to the appellate court for consideration of entire matters afresh. 8. In view of these aspects, the impugned judgment dated 31.08.2016 rendered by the II Additional Sessions Judge, Kollam in Crl.Appeal No.298/2012 will stand set aside. The said Crl.Appeal will restore on the files of the said appellate court. 9. The appellate court will consider the appeal afresh and all contentions raised both sides including the above referred contentions should be appreciated to and to consider in depth by the appellate court. Both sides may give their written argument notes shall form part of the court records. 10. The learned counsel appearing for the revision petitioner/accused and the learned counsel for the respondent/complainant will appear before the appellate court on 11 am on 30.08.2017, on which date the said court will fix up a date of hearing the appeal and then proceed to the hearing and Crl.R.P.No.890 of 2017 -14- disposal of the appeal without much delay, preferably within a period of 3-4 months from the date of production of a copy of this judgment. 11. It is made clear that the appeal should be decided by the appellate court based on the existing evidence on record and both parties should not be permitted to adduce additional evidence. With these observations and directions, this Crl.R.P. stands finally disposed of. Sd/ALEXANDER THOMAS, JUDGE VS /TRUE COPY/ PA TO JUDGE