V.G. Kanakkamma v. Babukuttan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939 Crl.L.P..No. 101 of 2017 ()** **---------------------------CRA.517/2013 of ADDL. DISTRICT & SESSIONS COURT-I, MAVELIKKARA CC.148/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT, HARIPAD** ## **PETITIONER(S)/COMPLAINANT:** **-------------------------** **V.G. KANAKAMMA, D/O GOURIAMMA, POORNIMA NIVAS, MUTHUKULAM SOUTH MURI, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT - 690 506.** **BY ADVS.SRI.NISHIL.P.S. SRI.A.RAJESH** ## **RESPONDENT(S)/ACCUSED & STATE:** **------------------------------** ## **1. BABUKUTTAN,** **AGED ABOUT 50 YEARS, S/O VASU, NIDHIN NIVAS (PUTHAN PURAYIL), MUTHUKULAM SOUTH MURI, MUTHUKULAM P.O., MUTHUKULAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT - 690 506.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALETTY** **THIS CRIMINAL LEAVE PETITION COME UP FOR ADMISSION ON 11.04.2017, THE COURT ON 21.06.2017 PASSED THE FOLLOWING:** **EL** ## ALEXANDER THOMAS, J. ================== Crl.L.P.No. 101 of 2017 ================== Dated this the 21[st] day of June, 2017 ## J U D G M E N T This is an application to seek special leave of this Court so as to enable the petitioner to institute criminal appeal to impugn the appellate judgment of acquittal rendered by the Addl. Sessions Judge-I, Mavelikkara, in Crl.Appeal No.517/2013. The petitioner is the complainant alleging offence punishable under Sec.138 of the Negotiable Instruments Act, in which 1[st] respondent herein has been arrayed as accused. The amount covered by the dishonoured cheque is Rs. 2 lakhs. The trial court as per the judgment rendered on 24.11.2013 has convicted the petitioner for the abovesaid offence and has sentenced him to undergo simple imprisonment for four months and to pay fine of Rs.2 lakhs, which is the cheque amount, with the default clause of simple imprisonment for one month and the fine amount, if so realised, was directed to be paid as compensation to the complainant under Sec.357(1) (b) of the Cr.P.C. Aggrieved thereby, the accused had preferred Crl.Appeal No.517/2013 before the appellate sessions court, in which the appellate court has rendered its judgment on 19.1.2012 acquitting the accused. Crl.L.P.101/17 - : 2 :- 2. Heard Sri.A.Rajesh, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. In the nature of the order that is proposed to be passed in this petition, notice to R-1 will stand dispensed with. 3. The specific case projected by the defence is that the instant cheque in question was given as security by him as a blank signed cheque to one Sri.Gopalakrishnan, who was the then secretary of the cooperative society, where the petitioner got appointment as daily collection agent and that Sri.Gopalakrishnan had insisted for giving a blank signed cheque as security at the time of commencement of his employment and that the later, when he had difference of opinion with Sri.Gopalakrishnan, he has misused the cheque by handing over the same to the complainant, who is his friend and that the cheque has been misused in the instance of the present complainant, etc. 4. Therefore, going by the tone and tenor of the very defence set up by the accused, it is admitted by him that at least the signature of the cheque is that of the accused and that the cheque has been issued from the account maintained by the accused. Therefore, going by the legal principles laid down by various High Courts and the Apex Court, decisions as in Vasanthakumari v. Vijayakumar, reported in (2015) 8 SCC 378, the complainant is entitled to draw the benefit of the statutory presumption arising out of Sec.139 of the Negotiable Instruments Act. Crl.L.P.101/17 - : 3 :- However, in view of the conclusive factual findings rendered by the appellate court in the impugned judgment, it is seen that the said statutory presumption is strongly and effectively rebutted by the accused. Following are the crucial aspects in that regard: (A) The complainant P.W-1 is a house wife and her husband, who was an ex-service man had died on 7.7.2005. The complainant has not adduced any materials to prove her financial capacity to raise such a huge amount of Rs.2 lakhs at the time of the alleged borrowal on 10.12.2011. P.W-1 (complainant) has deposed that her son used to deposit amounts in the State Bank of Travancore and that an amount of Rs.1.5 lakhs was given to her for maintenance of the house and that she has got family pension and income derived from the property. DW1 (secretary of the service co-operative bank) has deposed that as per Ext.D-2 ledger copy, the complainant had availed a loan of Rs.25,000/- and yet another loan of Rs.25,000/- was taken by her and she had also availed another loan of Rs. 2 lakhs and later loan upto 2008 was closed. It is also come out in evidence that the complainant had defaulted payment of instalments and the loan account was closed by availing another loan. On the basis of these evidentiary aspects, the appellate court has concluded that this clearly shows that the complainant is not a person having substantial money with her so as to part with a huge amount to a person like the accused. That if she had sufficient money to spare Rs.2 lakhs, to be given Crl.L.P.101/17 - : 4 :- to the accused, then it would be quite unlikely that she would approach the bank on many occasions to secure loan on interest. The Apex Court in the judgment in John K Abraham v. Simon C. Abraham, reported in 2014 (2) SCC 236, has held that the complainant will have to effectively prove his/her source of income to raise money for the alleged borrowal transaction, in order to draw the benefit of statutory presumption under Sec. 139 and Sec. 118 (a) of the Cr.P.C. This was taken as a very strong factual circumstance, which constrained the appellate court to hold that the very version of the complainant regarding the alleged borrowal of the money is not believable or credible. (B) Further the appellate court has found that the complaint is bereft of material particulars regarding the alleged transaction between her and the accused. It has not been stated as to what purpose the accused had borrowed the money. Even according to the complainant, she had advanced money without any interest and without any written documents or receipts. The complainant has not been able to prove that there was any close or proximate relationship between the parties, which constrained her to give such a huge amount in spite of her limited income, to a person like the accused. The very nature of the transaction between the parties, the date of issuance of the cheque, etc. are not seen disclosed either in the demand notice or in the complaint. Therefore, going by the legal principles laid down by this Court in the decision in Crl.L.P.101/17 - : 5 :- K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, the appellate court was of the considered opinion that the version given by the complainant is bereft of any credibility or believability and that the accused is entitled for acquittal. This Court in K.K.Divakaran's case supra has clearly held that the complainant is obliged to disclose in the complaint the crucial and relevant aspect of the alleged transaction between the parties, which led to the issuance of the cheque in question, as otherwise the accused would be compelled to face the trial without knowing as to what exactly he has to defend. Suppression of such crucial facts would also give an extra leverage and handle to the complainant to wait and see the defence strategy and then pounce upon the accused with a strategy that may be devised subsequently by the complainant after knowing the defence strategy. In a criminal trial it is trite that the accused is essentially called upon to defend a gravamen of the charges and allegations raised in the complaint. Therefore, the accused has the right to know as to what exactly of the allegations that he is called upon to defend. The non-disclosure of such crucial relevant aspects would inevitably lead to the violation of the precious right of free trial guaranteed to an accused in terms of Art.21 of the Constitution of India. It will be apposite to refer to paras 18 and 20 of the decision in K.K.Divakaran's case supra, which read as follows: “18. Before she filed the complaint the second respondent sent Ext.P4 statutory notice to the revision petitioner informing him about the Crl.L.P.101/17 - : 6 :- 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. 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.” Therefore, non disclosure and suppression of crucial facts is also one of the strong reason, which constrained the appellate court to hold that the accused is entitled for acquittal. (C). The appellate court has also noted that P.W-1 has deposed that the accused came to her residence on 18.1.2012 and brought cheque with her and then put signature in the cheque. That after coming to the house the accused had entered the amount and the date in the cheque. To another question, the complainant has deposed that the accused put the signature in the cheque in her presence, but she had not seen the other endorsements made by the accused and that she has no definite case as to whether other endorsements in the cheque were written by the accused or any other persons. This contradictory version of Crl.L.P.101/17 - : 7 :- the complainant was also led to the appellate court in holding that the version given by the complainant is not believable or probable. (D). The complainant has examined another witness as P.W-2, who according to her, is the only witness to the transaction. P.W-2 is a coconut climber. P.W-2 would depose that on 10.2.2011, by about 11.30 a.m. when he had gone to the house of the complainant in order to pluck coconuts, he had seen the accused coming to the house and receiving an amount of Rs.2 lakhs from the complainant. That later, when he went to pluck coconuts on another occasion the complainant had informed him that she is going to the bank and had sent him back. That the complainant told him that the accused had issued the cheque and she is going to withdraw the amount. The appellate court found that the abovesaid version of P.W-2 is bereft of any credibility. The appellate court noted that ordinarily a person who comes for coconut plucking will not go to any particular house on every other day and it is done only occasionally and it is quite surprising that P.W-2 happened to do his seasonal job on both these crucial days. Further it is not a probable version that a person who comes to a house for plucking coconut will have occasion to witness the transaction of handing over of money or giving of a cheque. For all these reasons, the appellate court cannot be faulted for the disbelieving the version given by P.W-2. Ext.D1 is the receipt which would show that an amount of Rs.5,000/- was received Crl.L.P.101/17 - : 8 :- from the accused by the service co-operative bank concerned as security deposit on 18.3.2009. The case of the accused was that the said amount was given when he was offered job as a daily collection in the said society. The accused has a case that the abovesaid Sri.Gopalakrishnan, the secretary of the co-operative society, had insisted that apart from the said deposit, he should give a blank signed cheque as security as well as salary certificate of another person and that accordingly he had given Ext.P-1 cheque as a blank signed cheque to the said Sri.Gopalakrishnan, the secretary of the society. D.W-2 has deposed that he is a school teacher in a Government school and that at the time when the accused was offered job he had given a salary certificate on 18.2.2009 and that he had given the same to Sri.Gopalakrishnan, the secretary of the society and that when he entered the cabin of the secretary, he had seen the accused and one Sunikumar, were present there and that the security deposit of Rs.5000/- and a blank signed cheque was also entrusted. Later when he came to know that Sri.Gopalakrishnan, was suspended from service, he had requested to return of the salary certificate and the administrative committee of the society sought time. The only ground on which D.W-2 was disbelieved by the trial court was that the close friend of the accused. However, the appellate court has noted that a Government employee will be willing to give salary certificate as security of another person only if the other person happened to be his close Crl.L.P.101/17 - : 9 :- friend or acquaintance. Therefore, the version of DW-2 cannot be believed solely on the ground that he had acquaintance with DW3, who is working in the same co-operative bank for the last 7 years and that Ext.P-1 is the said blank signed cheque. (F). The only suggestion that was made by the complainant to challenge the evidence of DW3 was that he and the accused belonged to the same political party. However the appellate court has noted that being an employee, the presence of DW2 is quite probable. DW4 is the another witness who is the one among the board of directors of the cooperative bank and he had deposed that the accused is the daily collection agent and when he received an application from the accused, he was instructed by secretary to deposit Rs. 5,000/- and the board had decided to give him the job. Later the bank had decided to suspend the accused from service. At that time when they perused his service file, they could find a cheque and since the accused was found to be innocent regarding the the alleged charges, he was not dismissed. That later, the accused had given a notice requesting not to misuse the said cheque and Ext.P-1 is the said cheque and Ext.D-3 is the said notice and that Ext.D4 reply notice stating that they have not authorised to obtain blank signed cheque. Ext.D-5 is the copy of the complaint filed in the magistrate court against the said Sri.Gopalakrishnan by the complainant alleging commission of offences punishable under Secs. 408, 468, 469, Crl.L.P.101/17 - : 10 :- 473 and 196 read with Sec. 34 of the I.P.C. 5. In view of these evidentiary aspects, the appellate court has found that the accused has clearly brought out a probable case explaining as to how his cheque happened to be in the possession of the complainant. 6. It is for all these aforementioned reasons, that the appellate court has held that the accused is entitled to the benefit of acquittal. The abovesaid factual finding of the appellate court cannot be said to be unreasonable or perverse. Merely because another view is plausible, is no ground to interfere with the considered verdict of acquittal. 7. 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.” 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_ ”. Crl.L.P.101/17 - : 11 :- 8. On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion 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 is bereft of any merit and accordingly, the same is dismissed. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge