Kerala High Court
Mini C.S vs Unnikrishnan K.N on 26 July, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 26TH DAY OF JULY 2017/4TH SRAVANA, 1939
Crl.Rev.Pet.No. 313 of 2017 ()
-------------------------------
CRL.A 291/2011 OF III ADDITIONAL SESSIONS COURT, THRISSUR.
ST 3948/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III,
THRISSUR.
......
REVISION PETITIONER/APPELLANT/ACCUSED:
-------------------------------------
MINI C.S., AGED 52 YEARS,
W/O.DAYANANDAN, STAFF QUARTERS,
G 2/3 GOVT, ENGINEERING COLLEGE,
THRISSUR-680009.
BY ADVS.SRI.VINAY RAMDAS
SMT.K.B.ANAMIKA
SRI.VISHNUPRASAD NAIR
RESPONDENTS(COMPLAINANT & STATE):
---------------------------------
1. UNNIKRISHNAN K.N., AGED 69,
S/O.NARAYANAN NAIR, "INDEEVARAM",
ANNIKKAL HOUSE, KOTTAPURAM ROAD,
THRISSUR-680004.
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
R1 BY ADVS.SRI.G.HARIHARAN
SRI.PRAVEEN.H.
R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 26-07-2017, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
mbr/
ALEXANDER THOMAS, J.
----------------------------------------
Crl.R.P.No.313 of 2017
-----------------------------------------
Dated this the 26th day of July, 2017
O R D E R
The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.3948 of 2007 on the file of the Judicial First Class Magistrate Court-III, Thrissur, instituted on the basis of a complaint filed by the first respondent herein.
2. The trial court as per the impugned judgment rendered on 4.10.2010 has convicted the petitioner for the abovesaid offence and has sentenced her to undergo simple imprisonment for one month and to pay a sum of Rs.2,00,000/- as compensation to the complainant in terms of Section 357(3) of the Cr.P.C. and in default thereof, the accused has been ordered to undergo simple imprisonment for a period of one month. Aggrieved thereby the petitioner had preferred Crl.Appeal No.291 of 2011 before the appellate Sessions Court concerned (Court of the III Additional Sessions Judge, Thrissur). The appellate court as per the impugned judgment rendered on 13.1.2017 has dismissed the appeal and has thereby affirmed the conviction and the sentence imposed by the trial court. It is challenging these concurrent verdicts by both the courts below that the petitioner has Crl.R.P.No.313/17 ::2::
preferred the instant Crl.Revision Petition by taking recourse to the remedies conferred under Section 397 read with Section 401 of the Cr.P.C.
3. Heard Sri.Vinay Ram Das, learned counsel appearing for the revision petitioner/accused, Sri.G.Hariharan, learned counsel appearing for R1/complainant and Sri.Jestin Mathew, learned prosecutor appearing for R2/State.
4. The gist of the allegation in the complaint is that in discharge of a debt of Rs.2,00,000/- owed by the accused to the complainant, the revision petitioner/accused had issued the instant Exhibit P1 cheque dated 24.4.2007 for Rs.2,00,000/- drawn from her account and payable in favour of the complainant. The cheque when presented was dishonoured as per Exhibits P2 and P3 memos dated 24.4.2007. Pursuant to which the complainant had issued Exhibit P4 statutory demand notice dated 3.5.2007, calling upon the accused to pay off the amount covered by the cheque within a period of 15 days from the date of receipt of the said notice. According to the complainant, the said notice was sent by registered post which was served on the accused as per Exhibit P6 dated 6.5.2007. Since the accused did not respond to the same and as the amount was not paid, the complainant after following the prescribed procedure has filed the Crl.R.P.No.313/17 ::3::
instant complaint which has resulted in the trial.
5. During trial, the complainant has examined himself as PW1 and has marked Exhibits P1 to P6 documents. The defence has not adduced any oral or documentary evidence.
6. Among the various contentions urged by Sri.Vinay Ramdas, learned counsel appearing for the revision petitioner/accused, he would place more emphasis on the following contentions :
(a) It is urged by the petitioner that the complaint states about the date of borrowal of the money and also about the handing over of the cheque and the execution of the promissory note.
But, the complainant is silent about the day on which the cheque has been allegedly handed over by the accused to the complainant. Moreover, it is argued that in the examination in chief of the complainant (PW1), no details whatsoever have been deposed by him either about the date on which the amount has been allegedly borrowed by her, the consequent handing over of the promissory note, the date on which the demand for repayment was made, the date on which Exhibit P1 cheque was allegedly handed over by the accused to the complainant and the resultant alleged return of the promissory note back to the complainant, etc. No such details are Crl.R.P.No.313/17 ::4::
furnished by PW1 even in his cross examination. Therefore, it is urged by the petitioner that the complainant has miserably failed to prove his basic case regarding the alleged transaction which led to the liability as well as the consequent factual details regarding the alleged handing over of the cheque by the accused to the complainant. In other words, the complainant has miserably failed to prove the transaction as well as the alleged execution and issuance of the cheque. It is further argued that a complainant is obliged not only to give such details in the complaint, but such details should be deposed with specificity and precision even in the chief examination. In the absence of deposing such details in the chief examination, the accused need only to generally deny the transaction and need not ask any specific questions to the complainant during the cross examination as details in that regard has not been diverged by PW1 in the chief examination. On this ground, it is urged by the petitioner that the case of the complaint is liable to be thrown out and the accused is entitled for the benefit of acquittal. It is argued that the principles laid down by the judgment of this Court in K.K.Divakaran v. State of Kerala and another reported in 2016 (4) KHC 901 = 2016 Crl.R.P.No.313/17 ::5::
(4) KLT 233 which is in the context of non disclosure of such details in the complaint and in the statutory demand notice, would apply with greater vigour in the absence of such details in the examination in chief of the complainant.
(b) It is further alleged by the petitioner that no material evidence whatsoever has been let in by the complainant to prove that he had source of funds to raise the amount of Rs.2,00,000/- which he had allegedly advanced to the accused as personal loan on 1.10.2006. Except his oral evidence, no material evidence has been let in by the complainant to prove this crucial aspect of the matter. It has been held by the Apex Court in the judgment in John K. Abraham v. Simon C.Abraham and another reported in (2014) 2 SCC 236 that in order to enable a complainant to draw the benefit of statutory presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act, the burden is quite heavy on the complainant to prove the crucial fact that he had sufficient source and access to funds for advancing money in the alleged loan transaction. The legal position in this regard has been reiterated by the Apex Court in the judgment in K.Subramani v. K.Damodara Naidu reported in (2015) 1 SCC 99. On the basis of the abovesaid aspects, it Crl.R.P.No.313/17 ::6::
is urged by the petitioner that since the complainant has miserably failed to let in any material evidence, to prove his source and access of funds to raise the abovesaid amount, the courts below should have held conclusively that the complainant is not entitled to draw the benefit of the statutory presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act. The petitioner's counsel would further urge that even if the accused has no serious objection that the signature in the dishonoured cheque pertains to her and that the cheque has been drawn from her account still the complainant is under a heavy burden to prove this crucial fact relating to the source of funds in view of the legal principles laid down by this Court in John K.Abraham's case (supra) and K.Subramani's case (supra). It is pointed out that PW1 has made his tall claims that he is in the habit of lending money to various people and if that be so, then certainly there will be plethora of documentary evidence like Bank records, etc. to show that he had source of funds and financial capacity to raise Rs.2,00,000/- at the time of alleged borrowal on 1.10.2006 and in the absence of letting him such concrete material evidence to prove this crucial fact, it would be highly unsafe to rest a conviction on an accused solely on the basis Crl.R.P.No.313/17 ::7::
of the oral assertions made by the complainant.
(c) It is further urged that the complainant has set up a specific case that at the time of the initial borrowal of the money by the accused, the complainant had insisted that the accused should execute a promissory note on the same day which was handed over to him, etc. In order to explain the non production of the promissory note before the trial court, PW1 has taken up the case that as and when the accused had allegedly handed over Exhibit P1 cheque, the complainant had returned back the said promissory note and that he had not retained any copy of the same. It is argued by the learned counsel appearing for the petitioner that the said version given by the complainant is highly improbable and incredible. It is pointed out that it is the case of the complainant that he has advanced money in various loan transactions to many people and that more than four cases have been initiated by him then, etc. On this basis, it is argued that even according to the complainant he is a person who is well experienced in matters of finance and loan transactions and if that be so, then if as a matter of fact the promissory note had in fact been executed and obtained from the accused, then certainly any ordinary prudent person standing in the shoe of the complainant would Crl.R.P.No.313/17 ::8::
have certainly insisted that the original of the promissory note would be returned to the accused only after the honouring of the tendered cheque and that at least any prudent person would have kept an attested photocopy of the said document even if the same has been returned. The fact that the complainant could not produce the original of the promissory note or even its photocopy would clearly show that the story put up by the complainant regarding the alleged execution of the promissory note is a false case set up by him only to bolster his claims. This crucial aspect of the matter has been omitted to be taken into consideration by both the courts below. It is further urged that Exhibit P1 cheque would clearly show that except the signature all the other entries therein are all typewritten entries. The basic defence case of the accused is that the transactions were actually between the complainant and the husband of the accused and as insisted by the complainant, the husband of the accused was constrained to hand over a blank signed cheque of the accused to the complainant as security in the transaction between those parties and that the same has been misused in the present case, etc. It is thus pointed out that all these aspects would clearly show that the version of the complainant Crl.R.P.No.313/17 ::9::
is bereft of any credibility or believability and that on the basis of preponderance of probabilities, the accused has brought up a strong probable case. These aspects would certainly rebut the statutory presumption, even if it is assumed that the same could be drawn in the facts of this case, etc.
7. Per contra, Sri.G.Hariharan, learned counsel appearing for the first respondent/complainant, would submit that even going by the defence case set up by the accused, there is no dispute that the signature in the dishonoured cheque belongs to the accused and that the cheque has been drawn from the account maintained by the accused. Therefore, it is argued that going by the legal principles laid down by the Apex Court, the complainant is certainly entitled to draw the benefit of statutory presumption in the facts of this case. Further, it is pointed out that the basic details of the transaction and regarding the execution of the cheque have been stated with all cogency in the complaint and further that the accused has not raised any serious challenge in the cross examination of PW1. Further it is pointed out that the accused has not raised any of the present arguments now urged before this Court either before the trial court or before the appellate court or in the memorandum of the present revision petition. It is also pointed that the evidence of PW1 would clearly show that he had Crl.R.P.No.313/17 ::10::
necessary financial capacity to raise the amount for the borrowal transaction in question, etc. Further it is also argued by the complainant that the accused has not even bothered to draw the benefit of Section 313 Cr.P.C questioning process.
8. On a consideration of the rival pleas, this Court is of the firm view that the abovesaid contentions urged by the petitioner have not been considered in its factual and legal prospective by both the courts below. Non consideration of such relevant and crucial aspects would certainly be an illegality and impropriety. Therefore, certainly the matter requires a second look by the courts below. Ordinarily this Court could have remitted the matter to the trial court for consideration of these matters afresh. But in order to avoid further delays, this Court is of the view that the ends of justice would sufficiently meet if the matter is remitted before the appellate court for consideration of these aspects afresh.
9. In the light of these aspects, the impugned judgment dated 13.1.2017 rendered by the court of the IIIrd Additional Sessions Judge, Thrissur, in Crl.Appeal No.291 of 2011 will stand set aside. The said Criminal Appeal will stand restored to the file of the said appellate Sessions court for consideration afresh.
10. Learned counsel appearing for the appellant/accused and Crl.R.P.No.313/17 ::11::
learned counsel appearing for the respondent/complainant will appear before the appellate Sessions Court at 11 A.M. on 27.9.2017, on which day the appellate court will fix up a date of hearing convenient to both sides and then proceed with the consideration and disposal of the appeal on merits. Both sides shall be granted a reasonable opportunity of being heard. It will be open to both sides to submit the written argument notes which shall form part of the court records. Having regard to the fact that the complaint has been instituted as early as in the year 2007, this Court is of the opinion that the appellate court shall take all reasonable endeavours possible in these circumstances to ensure the expeditious disposal of the appeal without much delay, preferably within a period of 3-4 months from the date of production of a certified copy of this order. The petitioner will produce the certified copy of this order before the trial court and the appellate court for necessary information.
With these observations and directions, the Crl.Revision Petition will stand finally disposed of.
ALEXANDER THOMAS JUDGE csl