Kerala High Court
Dijo D. Vellamattom vs Sreenivasan on 18 July, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY,THE 18TH DAY OF JULY 2017/27TH ASHADHA, 1939
Crl.Rev.Pet.No. 1762 of 2016 ()
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CRL.A.NO. 222/2014 OF ADDL. SESSIONS COURT-II (SPECIAL), KOTTAYAM
ST.NO. 44/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, ETTUMANOOR
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REVISION PETITIONER/APPELLANTS/ACCUSED:
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DIJO D. VELLAMATTOM,
AGED 26 YEARS, S/O. DEKKARDIN MATHEW,
VELLAMATTATHIL HOUSE, HOUSE NO. 17,
PEACE PARK RESIDENTS' ASSOCIATION,
PEACE PARK ROAD, KOTHAIKUNNU,
THODUPUZHA, IDUKKI DISTRICT.
BY ADV. SRI.MVS.NAMBOOTHIRY
RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :
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1. SREENIVASAN, AGED 49 YEARS, S/O. VELUNNI,
KUZHIPARAMBIL HOUSE,
ETTUMANOOR P.O., KOTTAYAM DISTRICT-686 631
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682 031
R1 BY ADVS. SRI.RAJESH THOMAS
SRI.P.SREEKUMAR
R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 18-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
ALEXANDER THOMAS, J.
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Crl.R.P.No.1762 of 2016
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Dated this the 18th day of July, 2017
O R D E R
The revision petitioner is the accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.44 of 2013 on the file of the Judicial First Class Magistrate Court-II, Ettumanoor, instituted on the basis of a complaint filed by the first respondent herein.
2. The trial court, as per the impugned judgment rendered on 20.9.2014, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for three months and to pay Rs.4,00,000/- as compensation to the complainant under Section 357(3) of the Cr.P.C. and in default of payment thereof, the accused was ordered to undergo simple imprisonment for a further period of one month. Aggrieved thereby the petitioner had preferred Crl.Appeal No.222 of 2014 before the Sessions Court, Kottayam. The appellate court concerned (Court of the Additional Sessions Judge-II (Special), Kottayam, as per the impugned judgment rendered on 22.1.2015, had confirmed the conviction and thereby dismissed the appeal.
3. It is challenging these concurrent verdicts of both the courts Crl.R.P.No.1762/2016 ::2::
below that the petitioner has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C.
4. Heard Sri.M.V.S.Nampoothiry, learned counsel appearing for the revision petitioner/accused, Sri.P.Sreekumar, learned counsel appearing for R1/complainant and Sri.Jestin Mathew, learned prosecutor appearing for R2/State.
5. The gist of the case of the complainant is that in discharge of a debt of Rs.4,00,000/- owed by the accused to the complainant, the revision petitioner/accused had issued Exhibit P1 cheque dated 5.11.2012 for Rs.4,00,000/- drawn from his account and payable in favour of the complainant and that the said cheque when presented resulted in dishonour as per Exhibits P2 and P3 memos. Thereupon, the complainant had issued Exhibit P4 statutory demand notice dated 30.11.2012, calling upon the accused to pay off the said amounts covered by the cheque within a period of 15 days from the date of receipt of the said notice and that the said statutory demand notice sent by registered post was duly received as evidenced from Exhibits P5 and P6. The accused had not issued any reply notice and the complainant after fulfilling the requisite formalities prescribed in the statute had preferred the instant complaint which resulted in the trial.
Crl.R.P.No.1762/2016 ::3::
6. During trial, the complainant has examined PW1
(complainant) and PW2 (friend of the complainant) and has marked Exhibits P1 to P6 documents. The accused has examined himself as DW1 and has not adduced any documentary evidence.
7. Among the various contentions urged by Sri.M.V.S.Nampoothiry, learned counsel appearing for the revision petitioner/accused, he would give more emphasis on two contentions in support of his arguments against the legality and correctness of the impugned conviction and sentence in this case. The first contention is that the very transaction alleged by the complainant, which is said to be the basis for the issuance of the dishonoured cheque, is bereft of believablility and credibility. It is pointed out that even according to the complainant, he would admit that the accused was a student in his 20's who was studying for a paramedical course in the Government Medical College, Kottayam, and that the wife of the complainant was a non teaching staff who was working as attender in the said Medical College and through that connection, the accused and the complainant became familiar. Further the case of the complainant is that the accused had approached him for getting a personal loan of Rs.4,00,000/- for clearing some of his loan liabilities which he had ascertained from the father of the accused and had thereafter given Rs.4,00,000/- in cash on Crl.R.P.No.1762/2016 ::4::
9.9.2012. On the same day, the accused had given the instant Exhibit P1 postdated cheque dated 5.11.2012 and on the same day, the accused had given the instant Exhibit P1 post dated cheque dated 5.11.2012 for Rs.4,00,000/- to the complainant assuring that the cheque will be honoured as and when presented on the day shown in the cheque. It is also the case of the complainant that the said transaction took place at the residence of the complainant and that the friend of the complainant (PW2) was also present who had seen the handing over of the cash for Rs.4,00,000/- and had also seen the execution of the cheque. Sri.M.V.S.Nampoothiry, learned counsel appearing for the petitioner, would also submit that the said transaction projected by the complainant is bereft of any credibility, believability or probability. He would argue that no reasonable and prudent person placed in the position of the complainant would even venture to think of parting with such a huge amount of Rs.4,00,000/- to a person who is early in his twenty's and who is a student for paramedical course and that any ordinary prudent person placed in the position of the complainant should be imputed with the minimum commonsense that such a student is not having any access to funds, so as to pay off the huge amount. Further it is also pointed out that the complainant has not given any evidence as to what exactly was the proximity of the relationship between the parties Crl.R.P.No.1762/2016 ::5::
which induced the complainant to part such a huge amount to a young student like the accused and as to whether he had ascertained on the basis of some objective search of details as to for what purpose the accused was allegedly asking for the money and as to whether the accused indeed has any loan transaction as stated which was required to be paid by him by borrowing money from the complainant, etc. That in view of such duty to take care, no ordinary prudent person placed in the shoe of the complainant could have parted with such a huge amount and the very story projected by the complainant is suffering from lack of credibility and believability. Learned counsel for the petitioner would further argue that the very defence case set up by the accused was to the effect that his father had a transaction with one Joshy of M/s.Cooltech and that the said blank signed cheque was given as security in that transaction by his father and that when his father had given a complaint to the Superintendent of Police, Kottayam, against the said Sri.Joshy, the said person had acted in consensus with the present complaint to misuse the abovesaid cheque for filing the instant complaint, etc. Further it is also pointed out that the version of PW1 and PW2 that the written entries in the cheque were made by a friend of the accused who had come along with the accused in the residence of the complainant on the day in question, etc. is also bereft of any Crl.R.P.No.1762/2016 ::6::
believability. A college going student like the accused does not require the help of a third person for making handwritten entries in the cheque. That the said version projected by PW1 and PW2 has been made deliberately only to explain the serious discrepancy in the handwritten portion of the cheque compared to the signature in the cheque.
8. The second contention urged by Sri.M.V.S.Nampoothiry, learned counsel appearing for the petitioner/accused, is that the Apex Court has clearly held in the decision as in John K.Abraham v. Simon C.Abraham reported in (2014) 2 SCC 236 that the burden is indeed heavy on the complainant to prove that he had the required funds for making the borrowal in question, in order to enable him to draw the statutory presumption envisaged in Section 118(a) and Section 139 of the Negotiable Instruments Act. It is thus argued by the petitioner that even if it is admitted by the accused that the signature in the cheque belongs to him and that the cheque is drawn from his account, that by itself will not enable the complainant to draw the statutory presumption and that the complainant is under heavy burden to prove the source of funds at the relevant time to show that he had access of funds to make the borrowal for the transaction in question. Reliance is placed on Crl.R.P.No.1762/2016 ::7::
paragraph 9 of the abovesaid decision of the Apex Court in John K.Abraham v. Simon C.Abraham and another reported in (2014) 2 SCC 236, which reads as follows :
"9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused ; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant."
9. The petitioner would also place reliance on yet another judgment of the Apex Court in K.Subramani v. K.Damodara Naidu reported in (2015) 1 SCC 99 to fortify his contentions in that regard. On the basis of the said legal principles laid down by the Apex Court as mentioned herein above, the petitioner would argue that he had seriously challenged the very source of funds of the complainant to raise such a huge amount at the relevant time. That initially PW1 (complainant) would say that he had access to the funds on the basis of sale of a residential property. Later on he would depose in the cross that he would raise the money through sale of timber and that he did possess the amount of Rs.4,00,000/- on 8.9.2012, which is a day immediately prior to 9.9.2012, on which he had advanced the abovesaid amount to the complainant, etc. The petitioner would contend that apart from these varying versions, the complainant had not adduced any Crl.R.P.No.1762/2016 ::8::
material evidence other than his oral assertions which is also varying. It is argued that in the facts of this case, the complainant has miserably failed to prove that he had access of funds at the relevant time to raise such a huge amount of Rs.4,00,000/-. It is not merely sufficient that the petitioner asserts that generally he is having income etc., but that he should clearly and cogently prove before the trial court that he had access of funds at the relevant time on the basis of which he made the advance of money to the accused in the borrowal transaction, etc.
10. Per contra, Sri.P.Sreekumar, learned counsel appearing for the respondent/complainant, would argue that even as per the defence set up by the accused, the accused has clearly admitted that the signature in the dishonoured cheque belongs to him and that the cheque has been drawn in his account and that therefore, on the basis of these admissions alone, the complainant is entitled to draw the benefit of the statutory presumption under Section 118 (a) and 139 of the Negotiable Instruments Act. Further he would argue with necessary details that the transaction is sufficiently proved and further that the accused has no case that the complainant has not satisfied with the requisite statutory formalities for initiating the complaint, etc.
11. After hearing both sides, this Court is of the view that the abovesaid contentions raised by the revision petitioner, has not been Crl.R.P.No.1762/2016 ::9::
considered in its proper factual and legal perspective by the courts below and that the matter would certainly require a second look at the hands of the courts below. However, this Court is of the view that remitting the matter to the trial court may give rise to unnecessary delays and therefore, this Court is of the view that the interest of justice would be sufficiently meet, if the matter is remitted to the appellate court for consideration of the entire matters afresh. In this view of the matter, the impugned appellate judgment passed by the Sessions Court on 22.1.2015 in Crl.Appeal No.222 of 2014 is set aside and the said Crl.Appeal will stand restored to file of the appellate court.
12. Learned counsel appearing for the petitioner/accused and learned counsel appearing for the respondent/complainant will appear before the appellate Sessions Court at 11 A.M. on 25.9.2017, on which day the said court will fix up a date of hearing which is convenient to both sides and then later proceed to dispose of the appeal without much delay. Since the complaint has been initiated as early as in the year 2013, it is ordered that the appellate court may take all reasonable endeavours possible under the circumstances to ensure that the appeal is disposed of at least within a period of 3-4 months from the date of production of a certified copy of this order. Both sides may give their argument notes for the consideration of the appellate court and the said Crl.R.P.No.1762/2016 ::10::
written submissions will form part of the case records. It is also made clear that apart from all these contentions all the other issues are left open to be considered by the appellate court and the Sessions Court shall ensure that all the contentions raised by the petitioner as well as the contra contentions of the complainant are considered in depth and are adverted to in detail, etc. With these observations and directions, the Crl. Revision Petition will stand finally disposed of.
ALEXANDER THOMAS JUDGE csl