Kerala High Court
Mr. Vimal Kumar vs State Of Kerala on 10 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 10TH DAY OF JULY 2017/19TH ASHADHA, 1939
Crl.Rev.Pet.No. 591 of 2017 ()
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CRA.74/2016 of III ADDL. SESSIONS COURT, KOLLAM
CC.902/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT,
PARAVOOR
REVISION PETITIONER(S)/PETITIONER/APPELLANT/ACCUSED:
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MR. VIMAL KUMAR,
AGED 45 YEARS,S/O BALAN PILLAI,
RESIDING AT HOUSE NO:41,DARSANA NAGAR,
PATTATHANAM,KOLLAM,
NOW RESIDING AT KOTHETHUKALLIL VEEDU,
KADAPPAKKADA, KOLLAM.
BY ADV. SRI.S.SREEKUMAR (KOLLAM)
RESPONDENT(S)/RESPONDENT/COMPLAINANT/STATE:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.
2. MR. THULASEEDHARAN D.,
AGED 58 YEARS,S/O DAMODHARAN,
RESIDING AT ANEESH BHAVAN,
NEDUNGOLAM CHERRY,
PARAVOOR VILLAGE,
SOUTH PARAVOOR, KOLLAM-691301.
R1 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW
R2 BY ADV. SRI.M.RAJESH
THIS CRIMINAL REVISION PETITION HAVING BEEN
FINALLY HEARD ON 10-07-2017, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
EL
ALEXANDER THOMAS, J.
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Crl.R.P.No.591 of 2017
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Dated this the 10th day of July, 2017
O R D E R
The revision petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.902 of 2009 on the file of the Judicial First Class Magistrate Court, S.Paravur, instituted on the basis of a complaint filed by the second respondent herein.
2. The trial court, as per the impugned judgment rendered on 20.4.2016, had convicted the petitioner for the abovesaid offence and had sentenced him to undergo simple imprisonment for three months and to pay Rs.3,00,000/- to the complainant as compensation 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 three months. Aggrieved thereby the petitioner had preferred Crl.Appeal No.74 of 2016 before the Sessions Court, Kollam. The appellate court concerned (Court of the III Additional Sessions Judge, Kollam), as per the impugned judgment rendered on 10.3.2017, had confirmed the conviction and thereby dismissed the appeal.
3. It is challenging these concurrent verdicts of both the courts below that the petitioner has preferred the instant Criminal Revision Crl.R.P.No.591/17 ::2::
Petition by taking recourse to the remedies conferred under Sections 397 and 401 of the Cr.P.C.
4. Heard Sri.S.Sreekumar (Kollam), learned counsel appearing for the revision petitioner/accused, Sri.M.Rajesh, learned counsel appearing for R2/complainant and Sri.Jestin Mathew, learned prosecutor appearing for R1/State.
5. The gist of the allegations in the complaint is that for discharging a debt of Rs.3,00,000/- owed by the accused to the complainant, the revision petitioner/accused had issued the instant Exhibit P1 cheque dated 26.6.2009 for Rs.3,00,000/- drawn from the account of the accused and payable in favour of the complainant and that the cheque when presented had resulted in dishonour as evidenced by Exhibit P2 memo dated 7.8.2009. Thereupon the complainant had issued Exhibit P4 statutory demand notice dated 21.8.2009 in terms of Section 138(b) of the Negotiable Instruments Act, 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 notice. The said demand notice was sent by registered post as per Exhibit P5 and was duly received by the accused as per Exhibit P6. No reply to the said notice was issued by the accused and after fulfilling the requisite formalities, the complainant had initiated the instant complaint, which resulted in the Crl.R.P.No.591/17 ::3::
trial.
6. During trial, the complainant has examined PW1 (complainant) and PW2 and has marked as Exhibits P1 to P6 documents. The defence has not adduced any oral any oral or documentary evidence.
7. Both sides have been heard in detail through the depositions and documents on record. It can be seen from a perusal of the evidence tendered by PW1 (complainant) during cross examination that the very suggestion put forward by the defence was to the effect that except the signature all the other written entries in the cheque are not that of the accused. In view of the said stand taken during the cross examination of PW1, it can be seen that the accused has no serious dispute that the signature in the dishonoured cheque is that of the accused and that the said cheque has been drawn from an account maintained by him. Therefore, going by the well settled principles in that regard in various decisions of the High Court as well as the Apex Court as in Rangappa v. Sri Mohan reported in 2010 (11) SCC 441, T.Vasanthakumar v. Vijayakumari reported in (2015) 8 SCC 378 etc., the benefit of the statutory presumption could be drawn by the complainant in this case. However, on a detailed examination of the pleadings, evidence and the documents on record, it can be seen that Crl.R.P.No.591/17 ::4::
the accused could successfully and effectively rebut the statutory presumption and that thereafter the complainant has not been able to prove his case. Both the courts below have shut out the crucial and relevant evidentiary materials on record regarding this aspect and after hearing both sides, it is the considered view of this Court that both the courts below have committed a serious illegality in this regard. Moreover, the non consideration of such crucial and relevant evidentiary aspects in favour of the accused, which has led to the conviction of the petitioner, is nothing short of gross perversity or unreasonableness committed by the courts below. The reasonings arrived at this considered conclusion by this Court are stated as hereunder :
(i) The complaint is conspicuously silent about the details of the transaction and it does not in any manner throw any light as to what exactly was the proximity and nature of the relationship between the parties which induce the complainant to part such a huge amount of Rs.3,00,000/- to the accused. Except by stating that on 4.6.2007 the accused had borrowed an amount of Rs.3,00,000/- from the complainant and that the accused on the same day had given a postdated cheque dated 26.6.2009 for Rs.3,00,000/- to the complainant, etc. None of the crucial aspects which were later sought to be projected by the Crl.R.P.No.591/17 ::5::
complainant in his evidence has been even remotely stated in the complaint. The same is the case of the statutory demand notice sent by the complainant. More interestingly, the proof affidavit tendered by the complainant is also equally silent about the nature and proximity of the relationship between the parties which led to the transaction. The defence made a frontal challenge regarding the very veracity and correctness of the allegations made by the complainant regarding the transaction. It is only at that later stage during cross examination, the complainant could venture to state for the first time that the accused was running a toddy shop on license basis and that the complainant was supplying curry and food items in that toddy shop and that it is through such transactions he became close and proximate with the accused. The definite case of the complainant in the cross examination was to the effect that the accused was running the toddy shop and that it was for the purpose of renewing the license of the toddy shop, that the accused had borrowed such a huge amount of Rs.3,00,000/- from the complainant. Even this version regarding the running of the toddy shop directly by the accused is later given up by the complainant, in as much Crl.R.P.No.591/17 ::6::
as he has subsequently filed an affidavit wherein it is sworn to by him that actually one Sri.Suresh was the licensee of the shop and that the accused was only running the shop for and on his behalf. Going by the factual circumstances in this case, it is clear like the day light that such omissions on the part of the complainant to disclose these crucial and relevant aspects which are intimately and inextricably connected to the transaction, in the statutory demand notice, complaint as well as in the proof affidavit, etc. has caused serious prejudice to the accused. It will amount to nothing, but suppression of crucial and relevant aspects and would amount to depriving the accused a reasonable opportunity of fair trial as guaranteed under Article 21 of the Constitution of India. This Court in the decision in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233 held that such material and crucial aspects relating to the transaction should necessarily be disclosed in the statutory demand notice, complaint, etc. and that omission in this regard would be nothing but suppression of crucial facts which would deprive the right of an accused for fair trial. So, it is elementary that an accused is essentially called upon in a criminal trial only to meet the Crl.R.P.No.591/17 ::7::
gravamen of the charges and allegations raised against the complainant. If the crucial and relevant aspects in that regard are not disclosed in the complaint and even in the proof affidavit, the accused would be totally handicapped from defending himself and this would make the unscrupulous complainants to wait and watch to know the defence stand and then to take a stand for the complainant which would prejudice the accused. This is impermissible in law and it amounts to violation of the basic cannons of fair trial in the criminal proceedings. It will be pertinent to refer to paragraphs 18 and 20 of the decisions of this Court in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233, which reads as follows :-
"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. ..........................
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 Crl.R.P.No.591/17 ::8::
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 about that both the courts below heard egregiously in not considering these crucial aspects of the matter and in not giving the benefit of acquittal to the accused.
(ii) During cross examination of PW1, the defence has mounted a serious challenge regarding the financial capacity of the complainant in raising such a huge amount for the alleged borrowal to be given to the accused. PW1/complainant would state that he was in Gulf country and all his earnings were on account of that occupation and that the moneys in that regard should deposit in an NRI account and that all the said deposited amounts have been utilized by him. Nowhere in this evidence would PW1 even remotely suggest that he had sufficient source of money at the relevant time for lending such a huge amount to the accused. No material evidence has been produced by the complainant to show that he had the necessary access of funds at the relevant time for lending such a huge amount to the accused. The Apex Court in the decision in John K.Abraham v. Simon C.Abraham reported in (2014) Crl.R.P.No.591/17 ::9::
2 SCC 236 has held that in order to enable the complainant to draw the benefit of the statutory presumption under Sections 139 and 118(a) of the Negotiable Instruments Act, the complainant should necessarily prove his financial capacity and the source of funds for the alleged transaction. Here in the instant case, the complainant has miserably failed in this regard and therefore, on this ground alone, both the courts below ought to have thrown out the case of the complainant and should have granted the benefit of acquittal to the accused. Failure on the part of both the courts below to take into consideration this crucial and relevant aspect of the matter, would be nothing but a grave illegality and would also amount to gross perversity and unreasonableness.
(iii) In the statutory demand notice as well in the proof affidavit and in the cross examination, the definite and specific case of the complainant (PW1) is that the accused had come to the residence of the complainant on 4.6.2007 and had taken Rs.3,00,000/- as loan and had simultaneously filled up the entries in the cheque and had signed Exhibit P1 postdated cheque dated 26.6.2009. In other words, the specific case of PW1 was that all the written entries as well as the signature in Crl.R.P.No.591/17 ::10::
the cheque were made by the accused in his presence on 4.6.2007. Whereas the specific defence of the accused was that he had never executed such a cheque to the complainant.
It is also interesting to note that nowhere in the complaint or in his evidence, as PW1 has raised a case that any person other than him had witnessed the abovesaid transaction between PW1 and the accused. Thereafter, the complainant has sprung a surprise on the accused by submitting an additional list of witness and has adduced evidence to PW2. PW2 would venture to depose that he had also worked in the toddy shop which was run by the accused. In his chief examination, PW1 would broadly depose that he had actually witnessed the filling up of the cheque as well as its signing by the accused on 4.6.2007. However, in cross examination, PW2 would take a sudden reverse turn and he would depose that only the signature in the cheque was put by the accused and that he does not know the time of the abovesaid transaction. This evidence of PW2 would cut at the very case of PW1, who has projected his case all through out that all the written entries in the cheque as well as the signature belong to the accused and that all such entries and signature were made by the accused Crl.R.P.No.591/17 ::11::
on 3.6.2007 in his presence, etc. This would clearly cast a serious question mark on the very credibility and the veracity of the evidence tendered not only by PW1, but also that of PW2. This crucial and relevant aspect of the matter has been completely shut out by both the courts below and this Court is not in a position to fathom at as to what are the basis on which both the courts below have simply accepted the abovesaid contradictory evidence of PW2 without even a pinch of salt. Therefore, the very credibility and believability of the evidence tendered by PW1 and PW2 regarding the crucial aspect of the very execution of the cheque could be successfully brought in by the defence. Therefore, the judgments of both the courts below would suffer from grave illegality in this regard and non consideration of this crucial aspect would also amount to perversity and unreasonableness in the impugned judgments. The very case set up by the complainant is that the accused had borrowed an amount of Rs.3,00,000/- for renewing the toddy shop license in 2007. He also has a case that he was also working in that toddy shop by supplying curry and food items. Learned counsel for the revision petitioner/accused would submit that it is a matter of common knowledge that for Crl.R.P.No.591/17 ::12::
renewal of toddy shop license, would require hardly about Rs.10,000/- to Rs.25,000/- and nothing more and therefore, the very story put up by the complainant as a foundation for the alleged borrowal lacks any credibility or probability and that the very case set up by the complainant is highly improbable and lacks credibility. This Court finds that there is substance in the said argument raised by the learned counsel appearing for the accused.
8. Apart from all these the accused had broadly put up a case before the trial court that except the signature all the other entries in the cheque are not made by him and in order to fortify this contention, he had submitted a Crl.Miscellaneous Application praying that the written entries in the said cheque may be subjected to expert handwriting analysis to the Forensic Laboratory. Without disclosing reasons the trial court had summarily dismissed that application. In the considered view of this Court, the trial court has committed a serious illegality in dismissing the said application. Still further, the accused had submitted a list of witnesses for adducing evidence on behalf of the defence and one of the key functionaries of the toddy welfare fund authorities in order to prove that he had no connection whatsoever in the running of the toddy shop. This application was also mercilessly Crl.R.P.No.591/17 ::13::
dismissed by the trial court. The dismissal of the said application resulted in shutting out the defence evidence that was endeavoured to be put in by the accused. No doubt there is no compulsion for the accused to lead evidence. But the law is certainly conferring a right to adduce defence evidence if he so chooses and the courts cannot arbitrarily shut out such pleas. It would amount to deny the defence to shape up their case in the best and appropriate manner as deemed by them. The denial of the said reasonable opportunity to adduce defence evidence has also caused serious prejudice and failure of justice in the facts of this case. For all these reasons, this Court is constrained to hold that the accused could successfully and effectively rebut the statutory presumption. It has been held in various decisions as in Rangappa v. Sri Mohan reported in 2010 (11) SCC 441 that the standard of proof that is cast upon an accused in such cases to rebut the statutory presumption is only on the basis of preponderance of probabilities and that the accused in such a situation is not cast with the heavy burden to prove beyond reasonable doubt. This aspect would clearly show that the accused has been able to successfully and effectively rebut the statutory presumption. Both the courts below have shut out from consideration of these vital and relevant aspects as mentioned hereinabove and it would be nothing short of grave illegality Crl.R.P.No.591/17 ::14::
and gross perversity.
9. Accordingly, it is ordered in the interest of justice, the impugned judgments of both the courts below are set aside and the accused is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. Resultantly, the accused is set at liberty.
With these observations and directions, the Crl. Revision Petition stands finally disposed of.
ALEXANDER THOMAS JUDGE csl