VELAYUDHAN v. GIRISHKUMAR & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 31ST DAY OF MAY 2017/10TH JYAISHTA, 1939** ## **Crl.Rev.Pet.No. 285 of 2017 ()** **------------------------------ST.NO. 1762/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, PALAKKAD DATED 22-06-2015** **CRL.A.NO. 188/2015 OF ADDL.SESSIONS COURT - V, PALAKKAD DATED 23-07-2016** ## **REVISION PETITIONER/APPELLANT/ACCUSED.:** **-----------------------------------------------------------------------** **VELAYUDHAN, S/O.VELUMANI, AGED 42 YEARS, PANIKKARKALAM, ATHIKKODE, KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **BY ADV. SRI.RAJESH SIVARAMANKUTTY** ## **RESPONDENT(S)/COMPLAINANT AND STATE.:** **--------------------------------------------------------------------** ## **1. GIRISHKUMAR,** **S/O MOHANAN, AGED 22 YEARS, SIVAJI NAGAR, ALAMARAM, KANJIKODE, PALAKKAD DISTRICT.** **2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31-05-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## **Crl.R.P.No.285 of 2017** ----------------------------------------Dated this the 31[st] day of May, 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.Case No.1762 of 2013 on the file of the Judicial First Class Magistrate Court-I, Palakkad, instituted on the basis of a complaint preferred by the first respondent herein. 2. The trial court, as per the impugned judgment rendered on 22.6.2015, had convicted the petitioner for the above said offence and had sentenced him to undergo simple imprisonment for one month and to pay fine of Rs.1,00,000/- to the complainant under Section 357(1)(b) of the Cr.P.C. and in default of payment of compensation, to undergo simple imprisonment for one month. 3. Aggrieved thereby the petitioner had preferred Crl.Appeal No.188 of 2015 on the file of the Sessions Court, Palakkad. The appellate court concerned (Court of the Additional Sessions Judge-V, Palakkad), as per the impugned judgment rendered on 23.7.2016, had confirmed the conviction and the fine amount and default sentence, but reduced the substantive sentence imposed on the petitioner to imprisonment till the rising of the court. It is aggrieved by the concurrent **Crl.R.P.No.285/17** : **:2::** findings of both the courts below that the petitioner has preferred the instant Crl.Revision Petition by taking recourse to the provisions contained in Section 397 read with Section 401 of the Code of Criminal Procedure. 4. Though notice has been duly served on the first respondent/complainant, it is seen from the Registry’s endorsement dated 23.2.2015 that there has been no appearance for that party. This Court had adjourned the case on many previous occasions to ascertain whether there is any subsequent appearance for that parties. Till date, there has been no appearance for that party. 5. Heard Sri.Rajesh Sivaramankutty, learned counsel 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 spite of due service of notice. 6. The gist of the allegation in the complaint is that the accused had borrowed an amount of Rs.1,00,000/- from the complainant and later, on demand, he had issued the instant Exhibit P1 cheque dated 9.2.2013 for Rs.1,00,000/- drawn from the account of the accused in favour of the complainant, which when presented was dishonoured by the Bank concerned as per Exhibit P2 memo dated 13.2.2013. Thereafter, the complainant had issued the statutory **Crl.R.P.No.285/17** : **:3::** demand notice as per Exhibit P4 dated 26.2.2013 in terms of the provisions contained in proviso (b) to Section 138 of the Negotiable Instruments Act, which was duly served as evidenced from Exhibits P4(a) and P5(a) etc., calling upon the accused to make payment of the full amounts covered by the cheque within 15 days from the date of receipt of that notice. As the accused had not responded by paying the amount, the complainant has instituted the present complaint. 7. During trial, the complainant has examined himself as PW1 and the prosecution has marked Exhibits P1 to P5 documents. The defence has adduced oral evidence to DW1 and DW2. 8. It has come out in evidence that even according to the case set up by the accused, the instant Exhibit P1 cheque was given by him as a blank signed cheque to one Sri.Ananthakrishnan with whom alone the complainant had transaction and that the said cheque has been misused by presenting through the complainant. Therefore, essentially the petitioner/accused has admitted that the signature in the cheque belongs to him and that the cheque is drawn from an account maintained by him. In the light of the legal principles laid down by the decisions of various High Courts and of the Apex Court in _**T.Vasanthakumar v. Vijayakumari**_ reported in _**(2015 (8) SCC 378)**_ , once there are no disputes relating to the signature of the accused in the cheque and that the cheque is drawn from the account of the **Crl.R.P.No.285/17** : **:4::** accused, then certainly the complainant is entitled to draw the benefit of the statutory presumption available under Section 139 of the Negotiable Instruments Act. Therefore, both the courts below are correct in holding that the complainant could claim the benefit of the statutory presumption under Section 139 of the Negotiable Instruments Act. But, it has been held in the catena of rulings that the said statutory presumption is only a rebuttable warrant and that an accused in case involving offence under Section 138 of the Negotiable Instruments Act, can even draw upon the various clinching facts and circumstances available even from the evidence of the complainant, mainly through his cross examination in order to establish on the basis of preponderance of probability that he has a credible and probable case, so as to rebut the statutory presumption. For this the case laws are in legion that the standard of proof cast upon an accused to rebut the statutory presumption under Section 139 of the Negotiable Instruments Act is not on the basis of proof beyond reasonable doubt, but only on the basis of preponderance of probabilities. The accused need not necessarily be saddled with the heavy burden to adduce independent evidence in its endeavour to rebut the statutory presumption. If the accused is confident that there are various factual circumstances that is emerged from the overall evidence tendered by the complainant, in order to establish his case that the statutory presumption stands rebutted, then certainly the accused is **Crl.R.P.No.285/17** : **:5::** entitled to argue the same and the courts will have to examine such evidentiary aspects meticulously and see whether the statutory presumption is rebutted or not. The accused has the constitutional right to remain silent as adumbrated in the provisions contained in clause (2) of Article 20 of the Constitution of India. It will be improper for the courts to insist that the accused should necessarily adduce evidence in its endeavour to rebut the statutory presumption. If as stated herein above, the accused is confident about his defence strategy that he could successfully pick holes in the basic prosecution version that has emerged from the overall evidentiary materials adduced by the complainant, then certainly the courts will have to examine whether such arguments are sustainable based on the evidentiary material on record. If preponderances of probabilities so hold, then certainly the criminal courts are bound to hold that the statutory presumption in such cases stand rebutted. No doubt the accused could even exercise their right to adduce independent defence evidence in their abovesaid endeavour to rebut the presumption and it has also been held consistently by various High Courts and by the Apex Court especially in cases relating to offences punishable under Section 138 of the Negotiable Instruments Act that the prosecution endeavour cannot succeed merely on the falsity of the defence case or on some of the inherent weakness of the defence case set forth before the trial court. The criminal courts are duty bound **Crl.R.P.No.285/17** : **:6::** to independently appraise the evidence on record and to see whether the statutory presumption has been rebutted or not. Once the statutory presumption is rebutted, then it is trite that the statutory presumption totally disappears. But, even that is not the end of the road for the complainant. The complainant would then be cast with the heavy burden to prove his case, so as to establish his case meticulously and with precision. 9. On an examination of the materials on record, pertaining to this case this Court is constrained to hold that both the courts below has blatantly overlooked the crucial and relevant aspects in favour of the accused and wrongly held that the petitioner has not rebutted the statutory presumption and that he is liable for conviction. Both the courts below have also clearly overlooked the fine tuned legal principles laid down by this Court in the judgment in _**Divakaran v. State of**_ _**Kerala (2016 (4) KLT 233),**_ wherein it has been held that a complainant in an offence for Section 138 of the Negotiable Instruments Act is obliged to furnish all material particulars and relevant aspects relating to the transaction between the parties in the complaint and such material particulars in the transaction are necessary in order to enable the accused to know the précise nature of the allegations that he is made to face in the criminal trial and in the absence of such disclosure **Crl.R.P.No.285/17** : **:7::** of crucial and relevant aspects relating to transactions, the very concept of fair trial as enshrined in Article 21 of the Constitution of India will be put to peril and that many unscrupulous complainants refused to disclose such crucial and relevant aspects in the complaint with such oblique motives, the object of denying the accused a fair trial. If the criminal court overlooks such omissions of the complainants, then the accused will be deprived of his essential right to know as to what exactly is the case that he is called upon to defend in the criminal trial and accordingly, this Court held that suppression of such material particulars in the complaint by itself would be sufficient to order the acquittal of an accused in such a case. It would be profitable to refer to paragraphs 18 to 20 of the said judgment of this Court in ## _**Divakaran v. State of Kerala**_ reported in _**(2016 (4) KLT 233)**_ . “ _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_ **Crl.R.P.No.285/17** : **:8::** ## _court should be closed to such fortune seekers._ _19. In the complaint also neither the nature, nor the date of the transaction between the parties is mentioned. The only addition made in the complaint is that the date of issuance of cheque is 14.9.1998. For the first time it was in her evidence the second respondent (PW1) disclosed that the transaction between the parties was a loan of Rs.1,95,000/-. In answer to a leading question put in the examination in chief she stated that the transaction was after the marriage between her daughter Sulatha and the revision petitioner's son Pradeep, which was solemnised on 23.1.1998. She testified that the revision petitioner requested for a loan of Rs.3,00,000/- one week after the marriage of Sulatha and Pradeep and she paid him Rs.1½ lakh on 9.4.1998 and Rs.45,000/- on 8.5.1998. The amount mentioned in the cheque is Rs.2,55,000/- though the loan amount was only Rs.1,95,000/Rs.60,000/- is said to be interest. How the interest was calculated will be considered later. Her story is that in August 1998 she made a demand for repayment of the amount and then the revision petitioner undertook to pay the amount in January 1999; the second respondent insisted on getting a cheque and a document from the revision petitioner; on 14.9.1998 at her residence at Pampadi the revision petitioner executed Exhibit P1 cheque and Exhibit P8 undertaking._ _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.”_ 10. In the instant case, the complaint as well as the statutory demand notice are bereft of any details except by baldly stating that the **Crl.R.P.No.285/17** : **:9::** accused had borrowed an amount of Rs.1,00,000/- from the complainant and about the tendering of the cheque, though the date of the cheque is mentioned it is not even precisely stated in the complaint as to when exactly the cheque was executed and given by the accused to the complainant. So, the accused is entitled for the benefit of acquittal, on this ground. 11. During trial, PW1 (Complainant) has deposed that the accused used to supply construction materials and that it was not a case of borrowal of money, but that the complainant had ordered some construction materials from the accused and for that purpose, an amount of Rs.1,00,000/- was given and that the materials were not supplied by the accused. Therefore, an entirely different and distinct case has been projected by the complainant in his evidence given to the trial court, which is a total variance with the one projected in the complaint regarding borrowal of money. Yet another vital aspect of the matter is that the complainant was hardly 19 years old at the time of the alleged transaction (he was hardly 20 years at the time of deposition before the court below) and he has clearly deposed in evidence that he is only a coolie worker in the construction sector. The accused has mounted serious challenge regarding the financial capacity of the complainant. The accused has admitted that his Bank accounts will not disclose that he had access to huge sum of Rs.1,00,000/- at the time of **Crl.R.P.No.285/17** : **:10::** the alleged borrowal of the money. He has tried to impress upon the court by deposing that he had sold of the gold ornaments of his mother. But to a pointed question in the cross examination, PW1 has admitted that he cannot even say as to what exactly the quantity of gold that was sold for raising the abovesaid money. PW1 has candidly admitted before the trial court that he is hardly having income of Rs.450/- per day on days he works as a coolie worker. It has been held by the Apex Court in _**John K.Abraham v. Simon C.Abraham**_ reported in ( _**2014) 2 SCC 236 = 2014 (1) KLT 90 (SC)**_ that the complainant is obliged to prove his financial capacity at the time of the alleged transaction, in order to enable him to fortify his case seeking the abovesaid statutory presumption. Both the courts below have clearly overlooked the crucial aspect that not even iota of evidence has come from the side of the complainant to at least partially satisfy the court, as to how a 19 year old coolie worker having hardly an income of Rs.450/- per day on working days, could raise such a huge amount of Rs.1,00,000/-, so as to advance it to the complainant. PW1 has not given any convincing evidence to establish that the complainant and the accused had close personal relationship, so as to induce the complainant to raise such a huge amount of Rs.1,00,000/- to be given to the complainant. Therefore, this Court has no hesitation to hold that the omission of the **Crl.R.P.No.285/17** : **:11::** courts below in order to overlook this crucial aspect regarding the financial capacity of the complainant, could be fatal and in the given facts and circumstances, it can only be held, on a reasonable appreciation of the facts and the law governing the field, that the accused has not been able to prove his financial capacity. Therefore, this Court has no hesitation to hold that the view tendered by both the courts below is grossly perverse and unreasonable. 12. The suppression of the abovesaid crucial aspects and the total change in the story of the complainant regarding the transaction to an advance for supply of materials, etc., would also cut at the root of the very veracity of the evidence tendered by PW1. This Court has no hesitation to hold that going by the legal principles laid down by this Court in _**Divakaran v. State of Kerala**_ reported in _**(2016 (4) KLT 233)**_ , the complaint itself is liable to be thrown out and the accused is entitled for acquittal. 13. No doubt the accused in his enthusiasm has adduced defence evidence. DW1 is the accused himself and he has put forward his case cogently. DW2 happens to be none other than the father of the complainant. However, DW2 (father of the complainant), has given evidence in favour of the complainant who is his son. In the light of the aforementioned aspects, merely because the father of the complainant has given evidence that he has seen the execution of the cheque will **Crl.R.P.No.285/17** : **:12::** not itself be a conclusive aspect regarding the veracity of the prosecution story. 14. Accordingly, on an appreciation of the facts and circumstances of this case, this Court is of the opinion that the impugned judgments of both the courts below are tainted by gross perversity and unreasonableness and accordingly, it was not legal and proper on the part of the courts below to have convicted the petitioner for the abovesaid offence. In this view of the matter, the impugned judgments of both the courts below are set aside. The petitioner/accused is acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act and he is set at liberty. With these observations and directions, the Crl. Revision Petition stands finally disposed of. ## **ALEXANDER THOMAS JUDGE** csl