Kerala High Court
Magistrate Court Ii vs By Advs.Smt.K.Deepa (Payyanur) on 17 October, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939
Crl.Rev.Pet.No. 718 of 2017 ()
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AGAINST THE JUDGMENT IN ST.NO.301/2006 of JUDICIAL FIRST CLASS
MAGISTRATE COURT II, VADAKARA.
CRA.NO.115/2013 of II ND ADDITIONAL SESSIONS COURT, KOZHIKODE.
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PETITIONER(S)/APPELLANT/ACCUSED
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REMADEVI,74 YEARS,
W/O.LATE NARAYANAN, PARVATHI NIVAS, THIRUVANGAD
THALASSERY, KANNUR (DIST).
BY ADVS.SMT.K.DEEPA (PAYYANUR)
SRI.V.R.NAZAR
RESPONDENT(S)/RESPONDENTS/STATE & COMPLAINANT:
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1. V.DAMODARAN,
S/O.KRISHNAN, 58 YEARS,NELLIYANKARA AMSOM, CHORODE
DESOM, VATAKARA TALUK, KOZHIKODE, PIN-673 101.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682 031.
R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 17-10-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
TS
ALEXANDER THOMAS, J.
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Crl.R.P.No.718 Of 2017
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Dated this the 17th day of October, 2017.
O R D E R
The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in S.T.No.301/2006 on the file of the Judicial First Class Magistrate Court-II, Vatakara, instituted on the basis of a complaint filed by R-1 herein. The trial court as per the impugned judgment rendered on 8.2.2013 had convicted the petitioner for the above said offence and sentenced her to undergo imprisonment till the rising of the court and to pay a fine of Rs.2,10,000/- and in default thereof the accused was sentenced to undergo simple imprisonment for a further period of 2 months. The fine amount realised from the accused was ordered to be paid as compensation to the complainant under Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Crl.A.No.115/2013 before the Sessions Court, Kozhikode. The appellate Sessions Court concerned (Court of Additional Sessions Judge- II, Kozhikode), as per the impugned judgment dated 14.8.2014 had upheld the conviction and sentence and thereby dismissed the appeal.
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Crl.R.P.No.718 Of 2017 It is aggrieved by these verdicts, that the petitioner has preferred the instant Crl.R.P by taking recourse to the remedy under Sec.397 r/w Sec.401 of the Cr.P.C.
2. Notice has been taken out on more than one occasion to the 1st respondent-complainant in his address as shown by that party in his own complaint. The said address as shown in the cause title of the Revision Petition as well as before the trial court and appellate court is as follows:
"V.Damodaran, S/o.Krishnan, 58 years, Nelliyankara amsom, Chorode desom, Vatakara Taluk, Kozhikode, Pin - 673 101"
The said notice taken out by registered post initially on 22.6.2017 has been returned unserved with the endorsement "insufficient address". Later, notice was taken out through the Circle Inspector of Police Vatakara and Judicial First Class Magistrate Court-II, Vatakara by affixture and the said notice to R-2 unserved with the endorsement that the "Addressee could not be located. Not known. Service not complete". Since notice has been taken out through due process to the 1st respondent complainant in the address shown by that party himself, this Court had again directed the Inspector of Police of the area concerned to conduct ::3::
Crl.R.P.No.718 Of 2017 enquiry and to submit before this Court as to the present whereabouts and correct address of the 1st respondent. The Sub Inspector of Police, Vatakara, Kozhikode, and the Sub Inspector of Police, Kozhikode, have filed separate reports before this Court through the Prosecutor stating that detailed enquiries made about the 1st respondent in the Vatakara Police Station limits like Chorode, Kainatty, Nelliankara, etc., and the statements of persons in the locality were also taken and it is revealed that the said party has not been located in the said area. Further the Inspector of Police has also reported that his detailed enquiry has also revealed that the 1st respondent is not locatable and further that in the enquiry he had also verified the court records in this case before the trial court which has revealed that the address shown in this revision petition is the one shown in the complaint and the complainant has not shown the house name or any other details except stating his name, father's name and place of amsom and desom and the said person is not locatable. This Court has taken all reasonable measures possible under the circumstances to find out the correct address of the 1st respondent and all efforts become fatal. Since registered notice and notice by affixture have been duly taken out through many process in the address of the 1st respondent, it is only to be treated as notice on the ::4::
Crl.R.P.No.718 Of 2017 1st respondent has been duly served.
3. Heard Smt.K.Deepa, learned counsel appearing for the petitioner-accused and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State.
4. The gist of the case of the complainant is to the effect that the complainant and accused are known to each other and accused had borrowed a sum of Rs.1,20,000/- from the complainant in order to meet her urgent needs and to discharge the said liability, the accused had issued the instant cheque (Ext.P-1 dated 20.9.2004) for Rs.1,20,000/-, etc., and the cheque when presented resulted in dishonor. The cheque was drawn from the account of the accused on Nedungadi Branch Limited, Thalassery Branch and that the cheque was returned as unpaid with the endorsement "funds insufficient". Immediately on receiving Ext.P-3 statutory demand notice dated 12.10.2004, the accused had sent Ext.D-1 notice dated 27.10.2004 strongly denying the entire allegations raised in the demand notice and that she had never issued cheque for Rs.1,20,000/- drawn from the account of Nedungadi Bank, Thalassery Branch and that she never had any transaction whatsoever with the complainant and that the complainant is a total stranger to the accused and that she has never had any occasion to come in contact ::5::
Crl.R.P.No.718 Of 2017 with the complainant, etc. Further it is also stated that the accused has never collected cheque leaf bearing No.540130 (which is the cheque number of Ext.P-1) from the Nedungadi Bank. It is specifically stated therein that son of the accused by name Sri.C.V.Ramachandran, had filed a complaint against one Rajamani, who is presently working at Punjab National Bank, which has taken over Nedungadi Bank and that the matter entered in conviction and that the above said Rajamani, who is an employee of the Punjab Naitonal Bank, along with the complainant fabricated a cheque leaf in order to raise a false prosecution against the accused and that the case has already been charge sheeted and that a case relating to alleged misuse of the cheque has resulted in the charge sheet issued by the Thalassery police against the above said one Rajamani (employee of Punjab Naitonal Bank/Nedungadi Bank) and the complainant, as they have created false documents so as to file false complaint against the petitioner, etc. Further that the said Rajamani earlier was an employee of the Nedungadi Bank, who helped the complainant to falsely institute the present complaint in order to wreck vengeance against the petitioner's son, etc.
5. On a perusal of the impugned judgments as well as the lower court records including the evidence adduced by the parties, this ::6::
Crl.R.P.No.718 Of 2017 Court is of the considered opinion that both the courts below have totally overlooked the crucial and relevant aspects of the matter and further that if those reliable material aspect of the matter have been properly taken into account in the correct perspective, it would have certainly ended in acquittal. This Court is of the view that the impugned judgments of both the courts below suffer from grave illegality and perversity. Reasons for arriving at such a view are given hereunder:
(A) The complaint is absolutely bereft of details regarding the nature of transaction and the details of the transaction which led to the alleged personal loan liability and date on which the moneys have been advanced to the accused, the date on which the cheque has been handed over by the accused to the complainant, the nature of relationship between the parties which induced the complainant to part with a huge amount of Rs.1,20,000/- to the accused without any receipt, security, documentation, without charging any interest, etc. Though the accused had issued Ext.D-1 reply notice to Ext.P-4 statutory demand notice, the same has been substantially suppressed in the complaint. The only averment in the complaint is to the effect that the accused had issued reply formally raising false allegations. No oral ::7::
Crl.R.P.No.718 Of 2017 evidence has been adduced by the accused. The accused marked Ext.D-1 document. The complaint and the proof affidavit does not even remotely deal with any of the factual submissions and contentions raised in Ext.D-1 reply notice. These aspects relating to the vital suppression made in the complaint has been specifically confronted to PW-1 and PW-1 has candidly admitted that he cannot offer any reasons for suppressing those crucial material aspects. PW-1 has clearly admitted in cross-examination that police charge sheeted case in C.C.No.162/2006 is pending on the file of the Judicial First Class Magistrate Court, Thalassery, in which the above said Rajamani and the complainant (PW-1) herein have been arrayed as accused, wherein the allegation is that the present Ext.P-1 cheque has been falsely created by them for opening an account and creating falsely manipulated cheque so as to institute the present complaint against the present accused, etc. The specific case of the defence is to the effect that the petitioner's son Ramachandran, is also an employee of the erstwhile Nedungadi Bank (presently Punjab National Bank) and because of the above said reasons he had instituted the complaint against the colleague Ramachandran, which ended in conviction and later the above said cheque was falsely manipulated by them by opening an account to secure the cheque, etc. ::8::
Crl.R.P.No.718 Of 2017 This Court has held in the decision in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233, that 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 filed under Sec.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. It will be profitable to refer to paras 18 & 20 of the 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 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.
xxx xxx xxx
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 ::9::
Crl.R.P.No.718 Of 2017 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, this Court has no hesitation to hold that this crucial aspect of the matter has been totally overlooked by both the courts below and that the impugned judgments thus clearly suffer from illegality. In the light of the above said serious suppression of material fact, this Court is of the clear view that the accused is entitled for the benefit of acquittal.
(B) The accused is a house wife having no exposure, who is in her early 70's at the time of the alleged transaction. It is clear that she has no occasion to have much social acquaintance. No material circumstance has been averred in the complaint or even proved in evidence by PW-1 to convince the courts as to the exact nature of the proximity of relationship between the parties and the circumstance which induced the complainant to part with such a huge amount of Rs.1,20,000/- to the accused without insisting for any security, receipt, documentation and without charging any interest. Therefore, the very transaction alleged by the complainant is tainted with heavy cloud of suspicion and doubt. Over and above, the accused has clearly and ::10::
Crl.R.P.No.718 Of 2017 categorically pointed out in Ext.D-1 reply notice that the accused has never had any occasion whatsoever to even remotely come to have any transaction with the accused. She has further pointed out that her son one Sri.Ramachandran has filed a complaint against Rajamani, an employee of the Nedungadi Bank/Punjab National Bank, and the matter ended in conviction of the said person and the said Rajamani along with the complainant has fabricated a cheque leaf to falsely institute the present complaint and that the petitioner has given a complaint regarding false allegations raised by the complainant in falsely producing the present cheque in question and the case has been charge sheeted by the Thalassery Police, etc. Further, she has also asserted in Ext.D-1 that the instant cheque No.540130 has never been collected by the petitioner from the Nedungadi bank. It is also relevant to note that at the time of issuance of the cheque on 20.9.2004, the Nedungadi Bank had already merged with the Punjab National Bank and ordinarily customers would not have accepted cheques issued by the erstwhile Nedungadi Bank, which had lost its entity and has got merged with the Punjab National Bank. Thus, the circumstances pointed out in Ext.D-1 reply notice would also create suspicion and doubt and amounts to credibility and believability of the version given by the complainant.
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Crl.R.P.No.718 Of 2017 The Apex Court in Vijay v. Laxman & anr., reported in (2013) 3 SCC 86, has held that the very case set up by the holder of a cheque itself is dubious and the initial presumption under Sec.118(a) and 139 of the Negotiable Instruments Act itself comes to an end. This Court in Bhaskaran Nair v. Mohanan, reported in 2009 (2) KLT 897, has held that where the materials produced disclose of suspicious circumstances surrounding the transaction and if no satisfactory explanation is tendered by the complainant to explain such circumstances, no conviction is legally permissible solely banking upon the statutory presumptions and the court is expected to examine whether the transaction covered by the cheque is genuine, etc. In the light of these well settled legal principles, the trial court cannot be found fault with for having taken the view that the very version projected by the complainant cannot be the safe basis for convicting the accused. In the instant case, the above said circumstances, more particularly, the fact that no warranting circumstance has been brought in evidence to show as to the reasons which induced the complainant to part with such a huge amount to the accused. Coupled with other circumstances, which emerge from Ext.D-1 would raise serious question marks about the very credibility and believability of the version of the complainant. The very ::12::
Crl.R.P.No.718 Of 2017 contention raised by the accused in Ext.D-1 reply regarding the charge sheeting of Rajamani and other employee of the bank has not even been remotely dealt with in the evidence of PW-1. For all these reasons, this Court is of the firm view that it would be a travesty of justice to convict the petitioner on the basis of feeble and week evidence tendered by the complainant.
(C) The defence has challenged the source of funds of the complainant at the relevant time to the transaction. To a specific question during cross-examination as to the source of funds, the complainant stated that the said amount was not taken by him from a bank. The complainant has not let in any credible evidence to prove that he had actually access of funds at the relevant time of transaction to borrow such a huge amount. The Apex Court has held in John K.Abraham v. Simon C.Abraham, reported in (2014) 2 SCC 236, that in order to draw presumption under Sec.118(a) and 139 of the N.I. Act, the burden is quite heavy upon the complainant to prove that he had requisite money to advance the adduced at the relevant time of the transaction in question. Similar view has also been taken by the Apex Court in K.Subramani v. K.Damodara Naidu, reported in (2015) 1 SCC 99 and K.Prakashan v. P.K.Surenderan, reported in (2008) 1 SCC 258. Since ::13::
Crl.R.P.No.718 Of 2017 the complainant has miserably failed to establish the fact that he has source of funds to raise the amount in question for advancing the amount of Rs.1,20,000/- to the accused at the relevant time of borrowal transaction, it is only to be held that the complainant is not entitled to draw the benefit of statutory presumption under Sec.118(a) r/w Sec.139 of the N.I.Act. PW-1 has admitted that nobody has witnessed the alleged borrowal transaction and that nobody has witnessed the execution and issuance of the cheque. Therefore, as the complainant is not entitled to get statutory presumption under Sec.118(a) r/w Sec.139 of the N.I. Act, the complainant was obliged to prove beyond reasonable doubt the entire transaction, which led to the liability and about the transaction which led to the alleged execution and issuance of cheque. Since no credible and believable evidence has been adduced by the complainant, it is only to be held that he has miserably failed to prove his case and the accused is only to be acquitted in this case.
(D) There is yet another crucial aspect of the matter which has been totally overlooked by both the courts below. The defence has taken the definite stand during the cross-examination as well as Ext.D-1 reply notice that none of the entries in the dishonoured cheque including the signature are pertaining to the accused. The accused has ::14::
Crl.R.P.No.718 Of 2017 filed an application for subjecting the cheque for expert handwriting analysis. The original of the dishonoured cheque Ext.P-1 along with specimen signature and specimen handwriting of the accused were sent to Forensic Science Laboratory, Government of Kerala, Thiruvananthapuram, for expert handwriting analysis. Anx.A-2 documents of the FSL, Government of Kerala, Thiruvananthapuram, has been submitted through Ext.C-1 report No.BS-46/2011 dated 15.11.2012 clearly opining that analysis of document was carefully and throughly examined and compared with the standard documents in all aspects and the person who wrote the blue enclosed standard items stamped and marked therein wrote the rend enclosed questioned signature similarly stamped and marked Q2 but she did not write the red enclosed writings similarly stamped and marked Q1. The detailed reasons arrived are also given by the expert of the State laboratory in Ext.C-1. Therein also it has been reiterated the reasons for arriving at the considered conclusion that the accused has not written the writings similarly stamped and marked as Q-1. Therefore, the complainant has not in any manner chosen to challenge the correctness of C-1 expert report opinion tendered. Sec.292 of the Cr.P.C reads as follows:
"Sec.292. Evidence of officers of the Mint .- (1) Any document purporting to be a report under the hand of any such gazetted officer of the Mint officer of any Mint ::15::
Crl.R.P.No.718 Of 2017 or of any note Printing Press or of any Security Printing Press (including the officer of the Controller of Stamps and Stationery) or of any Forensic Department or Division of Forensic Science Laboratory or any Government Examiner of Questioned Documents or any State Examiner of Questioned Documents, as the case may be, as the Central Government may, by notification, specify in this behalf, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code, although such officer is not called as a witness.
(2) The Court may, if it thinks fit, summon and examine any such officer as to the subject-matter of this report:
Provided that no such officer shall be summoned to produce any records on which the report is based.
(3) Without prejudice to the provisions of Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), no such officer shall, except with the permission of the General Manager or any officer in charge of any Mint or of any Note Printing Press or of any Security Printing Press or of any Forensic Department or any officer in charge of the Forensic Science Laboratory or of the Government Examiner of Questioned Documents Organisation or of the State Examiner of Questioned Documents Organisation, as the case may be, be permitted-
(a) to give any evidence derived from any unpublished official records on which the report is based; or
(b) to disclose the nature or particulars of any test applied by him in the course of the examination of the matter or thing."
Therefore, there was clear and categoric expert evidence before the courts below that none of the hand written entries except the signature does not pertain to the accused. This crucial piece of evidence has been totally overlooked by both the courts below. This Court is not in a position to fathom the reasons which prompted the courts below to overlook this crucial aspect. The very case of the complainant in the complainant in the complaint as well in the cross-examination is to the effect that all the entries in the cheque were made by the accused.
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Crl.R.P.No.718 Of 2017 Ext.C-1 would throw clear light that all the handwriting entries (other than the signature) do not pertain to the accused. Therefore, this piece of evidence has not been controverted by the complainant, it is only to be relied upon the facts of this case. This piece of evidence throw clear light on the complainant's version that the accused had executed the cheque by making all the entries in the cheque is wrong and unreliable. In the light of these aspects, this Court is of the considered opinion that the courts below have committed grave illegality and perversity in convicting the petitioner as per the impugned judgments. The only reasonable conclusion that can be arrived in the light of the above said aspects is that the petitioner is entitled for the benefit of acquittal. It is accordingly ordered that the impugned judgments of both the courts below are set aside the and the accused is acquitted of the offence under Sec.138 of the N.I. Act, and she is set at liberty. Smt.K.Deepa, learned counsel appearing for the petitioner, submits on the basis of instruction that the petitioner had deposited an amount of Rs.63,000/- before the trial court in relation to this case in compliance with the lower appellate court's order dated 12.3.2013 rendered in Crl.M.P.No.76/2013 in Crl.A.No.115/2013 on the file of the Sessions Court, Kozhikode. If that be so, the trial court will ensure that any ::17::
Crl.R.P.No.718 Of 2017 amount deposited by the petitioner before the trial court in relation to this shall be forthwith released to the petitioner if an application in that regard is made through her counsel. Registry will return back the LCR along with a copy of this order to the trial court.
With these observations and directions, the Crl.R.P stands finally disposed of.
ALEXANDER THOMAS, Judge.
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