V. Ganesh v. K. Biju and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 25TH DAY OF SEPTEMBER 2017/3RD ASWINA, 1939** ## **Crl.L.P..No. 349 of 2017 ()** **---------------------------CC.NO. 2027/2015 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE COURT, (N.I.ACT CASES), KOZHIKODE** **-----------------** ## **PETITIONER/COMPLAINANT:** **------------------------------------------** **V.GANESH, AGED 56 YEARS, S/O. VENKITTA RAMAN, POOJA HOUSE, GALAXY APARTMENT, PANNIYANKARA, KALLAI P.O., KOZHIKODE DISTRICT.** **BY ADVS.SRI.P.V.KUNHIKRISHNAN SRI.P.V.ANOOP** ## **RESPONDENT(S)/ACCUSED AND STATE:** **------------------------------------------------------------** **1. K.BIJU, AGED 49 YEARS, S/O. KELAPPAN NAIR, KOLOTH HOUSE, MODAKALLUR, ATHOLI (P.O)., KOZHIKODE DISTRICT-673 315.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031** ## **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 25-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J.** ## **----------------------------** ## **Crl.L.P.No. 349 of 2017** **----------------------------** Dated this the 25[th] day of September, 2017 ## **ORDER** The petitioner seeks special leave of this Court under Section 378(4) of the Code of Criminal Procedure Code, 1973 to file Criminal Appeal so as to impugn the judgment dated 12.07.2017 rendered by the trial court concerned (Special Judicial First Class Magistrate (NI Act cases), Kozhikode), whereby the accused in C.C.No.2027 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 first respondent herein is the accused in the above stated C.C.No.2027 of 2015. Ext.P1 dishonoured cheque dated 15.08.2014 is for Rs.1 lakh. 2. Heard Sri.P.V.Kunhikrishnan, learned counsel appearing for the petitioner and Sri.Jestin Mathew, learned Public Prosecutor appearing for R2, State. 3. The brief of the case of the complainant is to the effect that the 1[st] respondent (accused) had borrowed an amount of Rs.1 lakh from the petitioner (complainant) and in discharge of the said liability the accused has issued Ext.P1 cheque dated Crl.L.P.No. 349 of 2017 2 15.08.2014 for Rs.1,00,000/- drawn from his account and payable in favour of the complainant. The cheque when presented resulted in dishonour as per Ext.P2 bank memo dated 17.10.2014 and consequent to which the complainant had issued Ext.P3 statutory demand notice dated 24.10.2014 calling upon the accused to pay off the amount covered by the said cheque within a period of 15 days from the date of receipt of the said notice. Though the said notice has been duly served on the accused as per Exts P4 and P5 he had not responded to the said notice. Thereupon the complainant, after following the requisite formalities, has issued the above complaint which resulted in the trial. During the trial the complainant has examined PW1 and PW2 and has marked Exts. P1 to P5 documents. The accused has not adduced any oral or documentary evidence. The basic defence taken up by the accused is to the effect that he had never borrowed the amount of Rs.1 lakh from the complainant as alleged by the complainant and that one of his friend Sri.Shaji had borrowed some amount from the complainant consequent to which at the instance of the complainant, the accused as a friend of the said person had to give his blank signed cheque as security for the said transaction. It has been misused in the present complaint etc. The trial court as per the impugned judgment has found that the accused is entitled for the benefit of acquittal in view of the following aspects. Crl.L.P.No. 349 of 2017 3 (A) The trial court has found that the crucial material particulars as to the nature of transaction, the date on which the amount has been borrowed, the date on which the cheque has been handed over etc has been completely omitted in the complaint as well as in the proof affidavit of PW1 (complainant). This Court in the decision in **K.K.Divakaran v. State of Kerala** reported in **2016(4) KLT 233** 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 complaint filed under Section 142 of the Negotiable Instruments 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_ ## Crl.L.P.No. 349 of 2017 4 _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. (B) The trial court has found that except his oral assertions, the complainant has not proved the crucial fact regarding the source of money on the basis of which he would raise Rs.1 lakh for being advanced to the accused at the time borrowal transaction in question. The Apex Court in the judgment in **John K Abraham** vs. **Simon C.Abraham** reported in ( **2014)2 SCC 236** has held that in order to draw the benefit of statutory presumption under Section 118(a) and Sec.139 of the NI Act, the burden is heavily on the complainant to prove that he had the requisite funds for advancing Crl.L.P.No. 349 of 2017 5 the money to the accused at the time of the borrowal transaction in question. The said view of the Apex Court has been reiterated by the Apex Court in the decisions as in **K.Subrahmanian v. K.Damodara Naidu** reported in **(2015) 1 SCC 99, K.Prakasan v. T.K.Surendran** reported in **(2008) 1 SCC 258** , etc. Therefore, the trial court cannot be found fault with for having taken the said view that the complainant is not entitled to draw the benefit of the statutory presumptions under Sec.118(a) and Sec.139 of the NI Act, as he had miserably failed to prove the source of funds. (C) PW(1) had deposed that the accused requested him to arrange Rs.1 lakh for expanding the latter's canteen business in June 2014 and that the accused had come to the house of the complainant at Thiruvannur for receiving the said amount of Rs.1 lakh from the complainant. Stating that the accused had borrowed Rs.1 lakh from him and that since the accused is his friend, he had agreed to repay the amount by the end of July, 2014. And that the accused failed to repay the amount when the complainant had demanded the payment, whereupon the accused come to his house and issued instant cheque dated 15.08.2014 of Rs.1 lakh drawn from his account by putting his signature on the cheque in his presence. He also stated that at that time one Sri.Sajanesh, friend of the accused was available at the time of issuance of the cheque. Later, PW1 in his cross examination stated that the cheque was Crl.L.P.No. 349 of 2017 6 handed over by the accused executing the cheque by putting his signature in his presence at a tea shop near Mavoor road. Thereafter PW1 had filed an application to reopen the complainant's evidence and it is on this basis that PW2 has been examined. PW2 is said to be the driver of the complainant. According to PW1, he was the driver employed by the complainant and that he used to take the complainant’s daughter to the medical college where she was studying and that during his frequent visits to the Medical College he happened to befriend the accused who is a contractor, who is running canteen and it is in that friendship that the accused had requested him to arrange loan and accordingly it was PW2 who had introduced the accused to PW1 who had given the loan amount etc. More importantly he would depose that the signing of the cheque by the accused was not at the residence of the accused, but in his presence at a tea shop near Mavoor Road. Further, he has also stated that apart from the complainant and PW2, no one else had witnessed the signing of the cheque by the accused etc. Therefore PW2 has also contradicted the version of PW1 that one Sajanesh the friend of the accused was present at the time of issuance of the cheque. The venue of the execution of the cheque has been drastically changed. In the light of these aspects, the trial court found that the version projected by the complainant is contradictory and does not inspire sufficient confidence regarding its Crl.L.P.No. 349 of 2017 7 credibility and believability. In the case of **Bhaskaran Nair** v **. Mohanan** reported in **2009(2) KLT 897** , this Court has held that where the materials produced disclose of suspicious circumstances surrounding the transaction and if no satisfactory explanation is tendered by the complainant in that regard, it is not safe to impose any conviction solely based on statutory presumptions. So also in the decision in **Vijay** v **. Laxman and another** reported in **2013(3) SCC 86,** the Apex Court has held that the very case set up by the holder of a cheque itself is dubious, then the initial presumption under Sec.118(a) and Sec.139 of the Negotiable Instruments Act itself comes to an end. In the light of these aspects the trial court cannot be found fault with for having taken the view that the very case set up by the complainant lacks credibility and believability due to its drastic variations and contradictions in the evidence rendered on behalf of the complainant. (D). The case set up by the complainant is to the effect that the accused was a friend of his driver and that in that connection that he had advanced the personal loan to him for expanding the canteen contract business of the accused etc. The trial court found that no convincing material evidence were let in to show the nature and proximity of the relationship between the parties which induced the complainant to part with such a huge amount of Rs.1 lakh to the accused without insisting for any receipt, Crl.L.P.No. 349 of 2017 8 documentation, security and without even charging any interest. This has constrained the trial court to view the entire transaction alleged by the petitioner with a heavy cloud of suspicion regarding its very believability. PW2 has stated that he has not witnessed the accused making any written entries in the cheque except his signature. The trial court has also found that the inks used in the signature part of the cheque is quite distinct from the one used for the other hand written entries in the cheque. It is in the light of all these aspects that the trial court has found that the very case set up by the complainant is bereft of any credibility and believability and that the accused is entitled for acquittal. 5. The said considered findings and facts made by the trial court cannot be said to be vitiated by gross 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. 6. 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.”_ Crl.L.P.No. 349 of 2017 9 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 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