Vijaya Kumar G. v. G. Balakrishnan Nair & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2017/22ND BHADRA, 1939** **Crl.Rev.Pet.No. 44 of 2017 () ------------------------------** ## **CRA 329/2014 of ADDL. DISTRICT & SESSIONS COURT - V, THIRUVANANTHAPURAM** **ST 1124/2010 of J.M.F.C.-III, TRIVANDRUM ----------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:-:** **------------------------------------------** **VIJAYA KUMAR G., NOW AGED 56 YEARS, S/O.LATE GOPINATHAN NAIR, KANJIRAVILA PUTHEN VEEDU, KULAKUDIYOORKONAM, NEMOM P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695 020.** **BY ADVS.SRI.D.GANESH KUMAR SMT.K.I.KAVITHA** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE:-:** **------------------------------------------------** ## **1. G. BALAKRISHNAN NAIR,** **AGED 66 YEARS, S/O.GOVINDA PILLA, T.C.64/850, ASWATHY BHAVAN, KARUMOM P.O., THIRUVANANTHAPURAM, PIN - 695 002.** ## **2. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** ## **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-09-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STK** ## **ALEXANDER THOMAS, J.** ## **-------------------------------Crl.R.P. No.44 of 2017** **----------------------------------** Dated this the 13[th] day of September, 2017 ## **O R D E R** The petitioner has been indicted for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.1124 of 2010 instituted on the basis of a complaint filed by the first respondent herein. Ext.P1 is a dishonoured cheque dated 1.2.2010 is for Rs.5 lakhs. The trial court (The Judicial First Class Magistrate Court-III, Thiruvananthapuram) as per the impugned judgment rendered on 12.09.2014 has convicted the petitioner for the aforesaid offence and sentenced him to undergo simple imprisonment for three months and to pay fine of Rs.5,50,000/- and in default thereof to undergo simple imprisonment for a further period two months. The amount of fine, if so realized was directed to be paid as compensation to the complainant as per Section 357(1)(b) Cr.P.C. Aggrieved thereby, the petitioner had preferred Criminal appeal No.329/2014 before the Court of Additional Sessions Judge-V, Thiruvananthapuram. The Appellate Sessions Court concerned as per the impugned judgment rendered on 29.07.2016 has dismissed the appeal thereby confirming the impugned conviction and sentence imposed by the trial court in this case. It is, challenging this concurrent verdicts rendered by both the courts below that the ## **Crl.R.P. No.44 of 2017** ## **-: 2 :-** petitioner has preferred the instant revision petition by taking reports to the remedies conferred under Section 397 r/w Section 401 of the Code of Criminal Procedure, 1973. 2. Heard Sri.D.Ganesh Kumar, learned counsel appearing for the revision petitioner (accused) and Sri.Sasthamangalam S. Ajithkumar, learned counsel appearing for the first respondent (complainant) and Sri.Jestin Mathew, learned Prosecutor appearing for the second respondent State. 3. The gist of the allegations in the complaint is that for discharging a liability of Rs.5 lakhs owed by the accused to the complainant, the revision petitioner accused had issued Ext.P1 cheque dated 1.02.2010 for Rs.5 lakhs drawn from the account of the accused and payable in favour of the complainant that the said cheque presented will resulted in dishonour as per Ext.P2 bank memo dated 10.03.2010 and Ext.P3 bank memo dated 25.03.2010 etc. to that, thereupon the complainant had issued Ext.P5 statutory demand notice dated 22.04.2010 calling upon the accused to pay out the amount covered by the above said cheque within a period of fifteen days from the receipt of the said notice that the complainant had issued reply notice dated 26.04.2010 raising false and untenable grounds that this constrained the complainant, after fulfilling the necessary formalities to institute the ## **Crl.R.P. No.44 of 2017** ## **-: 3 :-** present complaint is lead to the conduct of the trial in question. 4. During the trial, the complainant was examined as PW1 and had marked Exts.P1 to P6 documents. Exts.D1 and D2 documents had been marked by the defence during the cross-examination of PW1. The defence has not adduced any oral evidence in this case. 5. After hearing the learned Advocates appearing for the accused and the complainant in this case, this Court is of the considered view that both the court below had not taken into account crucial and relevant aspects of the matter and that the material evidence in the matter has been overlooked by both the court below and that the matter is liable to be remitted to the Appellate Sessions Court concerned, so as to have a serious second look at the whole issues arising in this case. The following contentions raised by the petitioner has been completely overlooked by both the courts below and that omission to consider such crucial aspects would amount to illegality and the rendering of the impugned judgments in this case by overlooking such crucial aspects would amount to illegality and perversity. The following are the crucial aspects in that regard that has been raised by the learned counsel appearing for the petitioner. _**(A).**_ The complaint, the statutory demand notice, the proof affidavit etc. are completely devoid of the crucial and relevant aspects ## **Crl.R.P. No.44 of 2017** ## **-: 4 :-** relating to the transactions which led to the liability in question in this case and that such suppression of material facts would be serious illegality, which would give the accused, the benefit of acquittal in this case. That in the complaint, the statutory demand notice, (Ext.P5) as well as in the proof of affidavit, all what is stated is that in discharge of the liability of Rs.5 lakhs owed by the accused to the complainant, the accused had issued the instant cheque. The nature of the transactions between the parties, the details as to how the liability figure of Rs.5 lakhs has arrived at etc. are completely omitted to be stated in the complaint, demand notice as well as in the proof of affidavit. Even the crucial aspects relating to as to when Ext.P1 cheque was handed over by the accused to the complainant has also been totally omitted to be stated anywhere in the compliant. It is urged by the petitioner's counsel that these omissions to state those aspects should be evaluated in the light of Ext.D2 reply notice issued by the accused stating all the details regarding the transactions in this case. Except by making an evasive reference to the reply notice dated 26.04.2010 by terming it as false, the complainant has not made any averments in the complaint or in the statutory demand notice or in the proof affidavit as to the contents of the said reply notice and as to how the said contents in the reply notice sent by the accused are false and untenable. The said reply notice has not ## **Crl.R.P. No.44 of 2017** ## **-: 5 :-** been produced along with the documents enlisted along with the complaint. In Ext.D2 reply notice, the specific case of the defence is to the effect that a joint business in running a cow farm was conducted by the petitioner, one Shri.Bhaskaran Nair, as well as the complainant in the property belonging to the complainant's wife and that the accused had invested his hard earned money of Rs.7.5 lakhs in building, infrastructure and for buying cattles in the cow farm and that the said Shri.Bhaskaran Nair had invested around Rs.1.5 lakhs and that the complainant had raised a loan for purchasing some of the cows in the farm. Further that, later the said Shri.Baskaran Nair and the complainant had withdrawn from their active participation in the business and the entire responsibility fell on the shoulders of the complainant and that as part of the arrangement, for payment of the rent by the petitioner for using the premises, the cow dung of 20 cows and two litres of milk produced every day was being taken away by the complainant and thereafter he had not given any assistance in the running of the business and it became impossible to run the business due to the non-co-operation of the complainant and Shri.Bhaskaran Nair and that later the complainant had given a false complaint to the police on 7.2.2010 (Ext.D1) alleging that the petitioner had stolen away the cows from the said cattle farm, etc. and further that when the **-: 6 :-** ## **Crl.R.P. No.44 of 2017** complainant had initially taken a loan for raising his share in the business, the accused was constrained to give Ext.P1cheque as a blank signed cheque as security to the complainant, which has been misused in the present case. The complainant has misused the above cheque and that the accused does not owe the amount of Rs.5 lakhs covered by the cheque to the complainant etc. It was only in cross examination that the complainant would venture to state that Ext.P1 cheque was handed over two to three months prior to the date of issue of the said cheque. Further, during the cross examination he would state that a loan was taken in his wife's name for investing in the project and further that the loan installments to be paid in the said loan was given by the complainant to the accused for being remitted to the bank and that the accused had not remitted those amounts and further that the business share owed to the complainant was not given by the accused and further that the complainant had suffered further loss by the action of the accused in committing theft and removal of twenty cows from the cow farm etc. and that the amount of Rs.5 lakhs was arrived at by the parties for compensating the loss thus suffered by the complainant etc. It is pointed out by the petitioner that none of these crucial aspects which were later projected by the complainant in the cross-examination has been even remotely mentioned in the complaint or in the demand notice ## **Crl.R.P. No.44 of 2017** ## **-: 7 :-** or in the proof of affidavit and that such omission to state crucial and and relevant aspects would be nothing short of suppression of truth in the complaint. The petitioner would place reliance on the judgment of this Court in _**K.K.Divakaran v. State of Kerala**_ reported in 2016 (4) KLT 233, wherein this Court has held that in a criminal case, the accused should be informed before the trial not only the nature of the offence but also the regarding the material particulars of the transaction which are necessary for him to effectively meet the case against him and that very often, unscrupulous complainants refuse to do so with the ulterior objective of denying the accused a fair trial which is guaranteed under Article 21 of the Constitution of India. An accused even in a complaint case filed under Section 142 of the Negotiable Instruments Act also entitled to know before the trial the particulars of the acquisitions and allegations raised against him and suppression of such crucial particulars in the complaint etc. alone is sufficient to order his acquittal. It is slightly profitable to refer to paras 18 and 20 of the above said decision of this Court 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 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_ ## **Crl.R.P. No.44 of 2017** ## **-: 8 :-** _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._ **==> picture [208 x 7] intentionally omitted <==** _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 these aspects the learned counsel for the petitioner would vehemently argue that the complaint is liable to be thrown out solely on the ground of suppression of crucial aspects as mentioned above and that the accused is entitled to the benefit of acquittal. _**(B)**_ . It is further contended by the petitioner that the evidence adduced by the complainant is full of inconsistencies and contradictions and it does not even remotely show as to how the liability figure of Rs.5 lakhs has been arrived at by the complainant and that the complainant's only case is that some of the loan installments to be paid in the loan taken in the name of the complainant was entrusted with the accused and the accused did not remit those amounts to the bank and the ## **Crl.R.P. No.44 of 2017** ## **-: 9 :-** accused did not share the business profits with the complainant and further that the accused had caused loss to the complainant by committing theft and unauthorised removal of about twenty cows from the cattle farm that has been run in the property of the complainant, etc. In this regard, it is pointed that Ext.D1 dated 7.2.2010 is a complaint submitted by the complainant herein before the Police Authorities concerned and it has been clearly admitted by the complainant in his evidence that the police authorities had closed the said case as and that the complainant has been miserably failed to prove the crucial fact as to how the liability of Rs.5 lakhs has arisen in the facts of this case. No accounts has been produced by the complainant to show as to what is the share of the business profits which was owed to the complainant and the quantum of the business profits which has not been allegedly handed over to the complainant and etc. The only excuse given by the complainant in that regard is that the statement of accounts was solely with the accused and that the complainant was not keeping the accounts in that regard. Further that the complainant has a case that he had taken loan of around less than Rs.4 lakhs from the bank for investing in the above said joint project and that he had suffered loss on account of the non-payment of the loan installments to the bank and that the bank was taking steps for recovery of the money by proceeding against the **Crl.R.P. No.44 of 2017** ## **-: 10 :-** property of the complainant's wife etc. Other than giving oral assertions in this regard, the complainant has not adduced any reliable evidence to show as to the quantum of the loan amount that was taken from the bank and when the said loan amount was taken, the period of the loan, its repayment period, the quantum of the money paid back to the bank in the loan account, and as to when the bank had issued recovery notices in that regard etc. That the complainant has miserably failed to show any of these crucial details in that regard to show as to what exactly was the quantum of the loan amount that was defaulted and as to the share of the accused in the said defaulted loan account. In the light of these aspects, the petitioner would seriously urge that the evidence of the complainant is highly insufficient to hold that the accused had owed an amount of Rs.5 lakhs to the complainant which is the subject matter of the dishonoured cheque etc. Accordingly, it is urged that the evidence tendered by the complainant is not reliable and cannot be believed by any court so as safely to render a judgment of conviction against the accused in the facts and circumstances of the case. 6. On a consideration of the rival contentions in this regard, this court is of the considered view that both the courts below have totally avoided from its serious consideration of any of the above said contentions urged by the petitioner. This Court could have remitted the ## **Crl.R.P. No.44 of 2017** ## **-: 11 :-** matter to the trial court, but since such a course of action would entail unnecessary delays, it is felt that the ends of justice could be sufficiently met, if the matter is remitted to the appellate court for a proper and effective consideration of all the above said aspects. In this view of the matter, the impugned appellate court judgment dated 29.07.2016 rendered by the court of Additional Sessions Judge-V, Thiruvananthapuram in Criminal Appeal No.329/2014 will stand set aside. Resultantly it is ordered that Criminal Appeal No.329/2014 will stand restored to the Appellate Sessions Court concerned. 7. The learned counsel for the appellant accused and the learned counsel appearing for the respondent complainant shall appear before the appellate court at 11.00 am on 04.11.2017, on which day, the appellate court will fix a date of hearing which is convenient to both sides and should proceed for final disposal of the appeal as directed herein above. Both sides will be at liberty to submit their respective argument notes and the said argument notes shall form part of the case records. The appellate court will consider the above said contentions raised by the petitioner in its proper and correct perspective and parties will also be at liberty to raise any other contentions that may deem fit and proper to be so raised before the appellate court. 8. It is pointed by the petitioner's counsel that the petitioner ## **Crl.R.P. No.44 of 2017** ## **-: 12 :-** had deposited an amount of Rs.1.5 lakhs before the trial court in compliance with this Court's interim order dated 13.03.17 passed in this Criminal Revision Petition. If that be so, the trial will ensure that the said amount is placed in the fixed deposit in the Treasury so as earn maximum rate of interest. The petitioner will produce copies of this order before the trial court and the appellate court. 9. Having regard to the facts that the complaint was instituted as early in the the year 2010, the appellate Sessions Court will take all earnest steps to ensure that the appeal is disposed of without much delay, at any rate within a period of three months from the date of the first appearance of the parties as directed above. With these observations and directions, the above Criminal Revision Petition stands finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//