Kerala High Court
E.K.Purushan vs State Of Kerala on 24 July, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939
Crl.L.P..No. 159 of 2017 ()
----------------------------
ST 285/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHERTHALA
============
PETITIONER/COMPLAINANT:
-----------------------
E.K.PURUSHAN, AGED 82 YEARS
S/O.KOCHU KUTTY,SHEENA BHAVAN
PATTANAKKAD.P.O,CHERTHALA,ALAPPUZHA-688531.
BY ADVS.SRI.C.V.MANUVILSAN
SMT.K.VIDYA
SRI.VINODE V. LUKA
SMT.C.B.SABEELA
RESPONDENTS/STATE & ACCUSED:
----------------------------
1. STATE OF KERALA
REPRESENTED THROUGH THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA AT ERNAKULAM-682031.
2. NANDAKUMAR
AGED 45 YEARS,S/O.NARAYANAN,KALARICKAL HOUSE,
PATTANAKKADU.P.O,CHERTHALA,ALAPPUZHA-688531.
BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24-07-2017,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SD
ALEXANDER THOMAS , J.
- - - - - - - - - - - - - - - - -
Crl.L.P.No.159 of 2017
- - - - - - - - - - - - - - - - -
Dated this the 24th day of July, 2017
O R D E R
This is an application seeking special leave of this Court under Section 378(4) of the Code of Criminal Procedure, 1973 for instituting criminal appeal so as to impugn the judgment dated 02.02.2017 of the trial court concerned (Judicial First Class Magistrate Court-I, Cherthala) in S.T.No.285/2012 alleging the offence punishable under Section 138 of the Negotiable Instruments Act against the 2nd respondent herein, whereby the accused in the petitioner's complaint has been acquitted in the said offence. The petitioner herein is the complainant in S.T.No.285/2012.
2. Heard Sri.C.V.Manuvilsan, the learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, the learned Public Prosecutor appearing for the State.
3. The gist of the allegation in the complaint is that the accused had borrowed a sum of Rs.4 lakhs from the complainant and at that time the accused had issued Ext.P1 cheque dated 30.09.2011 drawn from his account payable in favour of the Crl.L.P.No.159 of 2017 2 complainant for discharging the said debt. The cheque when presented was dishonoured on the ground of insufficiency of funds as per Ext.P2 cheque return memo and therefore the complainant had issued Ext.P3 statutory demand notice under Section 138(b) calling upon the accused to pay off the said debt within a period of fifteen days from the date of receipt of the said notice. That the said demand notice sent by the registered post was duly received by the accused as per Exts.P4 and P5. That the accused had not sent any reply notice and that since the amount was not paid, the complainant after fulfilling the statutory formalities, has initiated the instant complaint, which led to the conduct of the trial in this case.
4. During the trial, PW1(complainant) and PW2 were examined and marked Exts.P1 to P5 documents. The defence has examined DW1 and has marked Exts.D1 to D7 documents.
5. The basic defence set up by the accused as can be seen from the challenge made by the defence during the cross examination of PW1 is to the effect that the said cheque was given as a blank signed one as security to the complainant in a transaction, that the accused has never voluntarily come forward Crl.L.P.No.159 of 2017 3 to execute and issue the said cheque dated 30.09.2011 for Rs.4 lakhs as alleged by the complainant and that the cheque has been misused by the complainant etc. In view of the defence it is clear that the accused has no dispute that the signature in the dishonoured cheque pertains to him and that the cheque has been drawn on the account maintained by him. Therefore, in view of the legal position settled by the judgments of the Apex Court and the various High Courts as in Rangappa v. Sri Mohan [(2010) 11 SCC 441], T.Vasanthakumar v. Vijayakumari {(2015) 8 SCC 378] etc., the benefit of the statutory presumption under Section 139 of the Negotiable Instruments Act could be drawn up by the complainant in this case. However, on a perusal of the conclusive findings made by the learned Magistrate, it can be seen that the said statutory presumption has been effectively and substantially rebutted by the accused in the facts of this case, in view of the following aspects:-
(A) The specific case set up in the complaint is to the effect that the accused had borrowed Rs.4 lakhs from the complainant and at that time the accused had issued Ext.P1 cheque dated 30.09.2011 for Rs.4 lakhs in favour of the Crl.L.P.No.159 of 2017 4 complainant etc. Whereas during the evidence, the complainant (PW1) has clearly deposed that he had paid Rs.4 lakhs in four installments of Rs.1 lakh each within a duration of two years and that when the accused did not repay the amount, he had called upon by the accused to pay the said amount and later, the accused has voluntarily come forward and has issued Ext.P1 cheque dated 30.09.2011 for Rs.4 lakhs in favour of the complainant.
This is in substantial and major divergence from the specific case set up by the complainant that the borrowing and the issuance of the cheque were at the same time. This has constrained the trial court to conclude that the version projected by the complainant is not believable and credible. (B) The trial court has found that the complaint is bereft of any material particulars regarding the financial transactions between the parties. The statutory notice and the complaint does not reveal as to when exactly the amounts were advanced by the complainant to the accused and when exactly the cheque was executed and handed over by the accused to the complainant. Very surprisingly, even the Crl.L.P.No.159 of 2017 5 proof affidavit is conspicuously silent about these relevant and crucial aspects of the matter. For the first time PW1 would depose only in cross examination that the borrowal of Rs.4 lakhs has taken place in four installments of Rs.1 lakh each within a duration of two long years. The dates on which each of these instalments made are not stated by the complainant. The day on which each accused has allegedly handed over Ext.P1 cheque voluntarily to the complainant is also not stated anywhere in the evidence of PW1. In a criminal trial, an accused is essentially called upon to answer only the gravamen of the specific charges and allegations raised in the complaint. In order to enable the accused to properly defend himself on the allegations in the complaint, it is imperative that the complaint should disclose the crucial and relevant aspects regarding the transaction of borrowal with respect to the liability which in turn led to the issuance and execution of the cheque in a complaint involving the offence under Section 138 of the Negotiable Instruments Act. If the complainant is given the flexibility and maneuverability to suppress these crucial and Crl.L.P.No.159 of 2017 6 material facts in the complaint, then it would give an extra handle to the complainant to vary his case by adopting a wait and watch approach to see that what exactly is the defence of the accused and then shape the case of the complainant on that basis. This would prevent the accused from being afforded a reasonable opportunity to defend the specific allegations in the complaint. The legal principles in this regard has been collated in the judgment of this Court in K.K.Divakaran v. State of Kerala [2016(4) KLT 233], wherein this Court has held that failure to state these crucial and relevant aspects in the complaint would amount to suppression of crucial aspects in the complaint and that the case of the complainant is liable to be thrown out on this ground, which should entitle the accused the benefit of acquittal. It has been held that otherwise, it would amount to deprive the right to fair and free trial guaranteed to an accused in terms of Article 21 of the Constitution of India. It is relevant to note paragraphs 18 and 20 of the above said decision of this Court in K.K.Divakaran's case (cited supra).
Crl.L.P.No.159 of 2017 7
"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 court should be closed to such fortune seekers.
19. xxxxxx
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 Crl.L.P.No.159 of 2017 8 sufficient to order his acquittal."
Since the complaint has suppressed these specific and vital details, the trial court cannot be faulted for arriving at the view that the complainant's version cannot be the safe basis for convicting the accused for offence under Section 138 of the Negotiable Instruments Act.
(C) As stated herein above, the complainant (PW1) has deposed in his cross examination that he had given Rs.4 lakhs in four installments of Rs.1 lakh each within a span of two years. He also deposed that Ext.P1 cheque was given to him by the accused on 30.09.2011. The trial court found that it is extremely difficult to believe that even after the accused does not pay the first and second installments, that the complainant has again freely and liberally advanced Rs.1 lakh each in the remaining two other installments to the accused. The above said conduct of the complainant was found to be highly suspicious in as such as the trial court has opined that any ordinary prudent person standing in the shoes of the complainant would not have advanced the last two instalments, when the accused had allegedly Crl.L.P.No.159 of 2017 9 defaulted the first two instalments. On this basis, the trial court has clearly opined that the version projected by the complainant is not a credible and believable one. (D) To the specific question as to why the complainant had given such a huge amount of Rs.4 lakhs to the accused, the complainant (PW1) has deposed that it is for the purpose of discharging the liability of the accused towards the complainant which he obtained for the purpose of obtaining a job for his wife. But in cross examination, on repeating the same question, the complainant has deposed that he does not know whether the accused has borrowed the said amount for the purpose of settling the debt for obtaining job for his wife. PW2 has categorically stated that the wife of the accused has got job 10 years prior to 2010. Therefore, the trial court has found that the said version given by the complainant regarding the purported object of the transaction is also highly improbable and suspicious. (E) The specific case of the accused is that he has given the cheque as security to the complainant and that the transaction question has already been settled with the Crl.L.P.No.159 of 2017 10 complainant, etc. PW2, who is an uncle of the accused, was examined as the complainant's witness and PW2 has given evidence in favour of the accused rather than the case of the complainant and he has deposed that it was he who executed Ext.X1 cheque in favour of the complainant for discharging the liability towards the complainant. The trial court found that, presumably as Ext.X1 cheque is a cash cheque, its encashment by itself will not necessarily prove that the amount covered by the cheque was actually received by the complainant. However, the trial court has found that the complainant's witness PW2 has not supported the case of the complainant and has given evidence in favour of the accused and that his evidence would probabilise the case of the accused. At any rate, the said evidence of PW2 would strongly improbabilise the case of the complainant.
6. In view of these aspects, the trial court has found that version of the complainant is not believable and credible. So the statutory presumption has been effectively and substantially rebutted by the accused. Thereafter, the complainant is under a Crl.L.P.No.159 of 2017 11 heavy burden to prove his case and since no cogent evidence in that regard has been adduced by the complainant, the trial court has been constrained to acquit the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
7. These findings of facts made by the trial court, cannot be said to be perverse, unreasonable or illegal. Merely because another view is plausible, is no ground to upturn a considered judgment of acquittal rendered by the trial court.
8. In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in 2012 (4) Supreme 72 = (2012) 5 SCC 789, the Apex Court has held as follows :
"24...........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."
9. Further, in the case Pudhu Raja and another v. 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 Crl.L.P.No.159 of 2017 12 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."
Even if the appeal is entertained in this case, there is no much reasonable scope for reversing the impugned judgment of acquittal. Accordingly, this Court is not inclined to grant leave in this petition and so the petition seeking special leave of this Court stands dismissed.
Sd/-
ALEXANDER THOMAS JUDGE sd // True Copy // P.A. to Judge