T.A Chandran, S/O.Ayyappan, Aged 57 Years, Thenkunner House, Manakkadavu P.O., Vellad Amsom, Taliparamba Taluk, Kannur District V. N.M Hassan Rauther, S/O.Musthafa Rauther, Hill Produced Dealer, Nhondimakkal House, Manakkadavu P.O., Vellad Amsom, Taliparamba Taluk, Kannur District-670 571 and State of Kerala, Rep.BY the Public Prosecutor, High Court of Kerala at Ernakulam

Crl.Rev.Pet/123/2015

AI Insights

The case revolves around a complaint filed by N.M. Hassan Rauther against T.A. Chandran for dishonoring a cheque of Rs. 4 lakhs issued as a loan repayment. The Judicial First Class Magistrate Court convicted Chandran, which was upheld by the Additional Sessions Court. However, the High Court found significant lapses in the complainant's evidence, particularly the lack of details regarding the transaction and the source of funds, leading to the acquittal of the accused.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 690710 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 02-08-2017
• Assessment Year: misc
• Other Referred Cases: K.K.Divakaran v. State of Kerala, John K.Abraham v. Simon C.Abraham, K.Subramani v. K.Damodara Naidu, K.Prakashan v. P.K.Surenderan
• Laws Referred To: Negotiable Instruments Act, Cr.P.C.
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: C P PEETHAMBARAN; MINI A; SAIGI PALATTY
• Assessee Lawyers: V T MADHAVANUNNI; V A SATHEESH; J ABHILASH
• Keywords: Acquittal; Cheque dishonour; Compensation; Criminal Revision Petition; Criminal Revision Petition; Negotiable instruments act
• Section: 139; 142; 138; 401; 397; 118(a); 357(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY , THE 2ND DAY OF AUGUST 2017/11TH SRAVANA, 1939 Crl.Rev.Pet.No. 123 of 2015 ------------------------------------------ AGAINST THE JUDGMENT IN CRL.A.NO. 455/2008 OF ADDITIONAL SESSIONS COURT- II, THALASSERY AGAINST THE JUDGMENT IN S.T.NO. 2754/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TALIPARAMBA ------------------- PETITIONER(S)/APPELLANT/ACCUSED : ------------------------------------------------------------- T.A CHANDRAN, S/O.AYYAPPAN, AGED 57 YEARS, THENKUNNEL HOUSE, MANAKKADAVU P.O., VELLAD AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE : ----------------------------------------------------------------------------------------- 1. N.M HASSAN RAUTHER, S/O.MUSTHAFA RAUTHER, HILL PRODUCED DEALER, NHONDIMAKKAL HOUSE, MANAKKADAVU P.O., VELLAD AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT-670 571. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R1 BY ADVS. SRI.C.P.PEETHAMBARAN SMT.MINI.V.A. R2 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Msd. ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.123 Of 2015 --------------------------------- Dated this the 2 nd day of August, 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.C.No.2754/2005 on the file of the Judicial First Class Magistrate Court, Taliparamba, instituted on the basis of a complaint filed by R-1 herein. The trial court as per the impugned judgment rendered on 27.9.2008 had convicted the petitioner for the above said offence and sentenced him to undergo simple imprisonment for a period of six months and to pay Rs.4.25 lakhs to the complainant as compensation under Sec.357(3) of the Cr.P.C., and in default thereof the accused was sentenced to undergo simple imprisonment for a further period of three months. Aggrieved thereby, the petitioner has preferred Crl.A.No.455/2008 before the Sessions Court, Thalassery. The appellate court (Court of Additional Sessions Judge-II, Thalassery) concerned, as per the impugned judgment dated 26.11.2014 had upheld the conviction and modified and reduced the substantive sentence to imprisonment till the rising of the court and also confirmed the compensation amount and its default sentence ::2:: Crl.R.P.No.123 Of 2015 clause. 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. Heard Sri.V.T.Madhavanunny, learned counsel appearing for the revision petitioner-accused, Sri.C.P.Peethambaran, learned counsel appearing for R-1 and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. The case of the allegations in the complaint is that for discharging a debt of Rs.4 lakhs owed by the accused to the complainant, the revision petitioner-accused had issued Ext.P-1 cheque dated 16.5.2005 for Rs.4 lakhs drawn from his account in favour of the complainant. The cheque when presented by the complainant resulted in dishonour as per bank memo dated 20.5.2005 pursuant to which the complainant had served Ext.P-3 statutory demand notice calling upon the accused to repay the amount covered by the cheque within 15 days of receipt of the statutory demand notice. The said notice send on 30.5.2005 by registered post has been duly served on the accused as per Exts.P-4 & P-5. During the trial, the complainant was examined as PW-1 and marked Exts.P-1 to P-5 documents. The defence adduced ::3:: Crl.R.P.No.123 Of 2015 oral evidence through DWs 1 & 2 and has also marked Exts.D-1 to D-4 documents. 4. Both sides have been heard in extenso. After going through the materials on record and depositions of witnesses, this Court is of the considered view that the material and vital aspects of the matter have been shut out by both the courts below from their consideration which had rendered the impugned sentence and conviction illegal and improper. The only conclusion that could be reached from the evidence on record is that the complainant has miserably failed to prove his source of funds to advance such a huge amount of Rs.4 lakhs to the accused as alleged by him and therefore he is dis-entitled from securing the statutory presumption under Sec.118(a) and Sec.139 of the N.I. Act. Further, the statutory demand notice, complaint and proof affidavit and evidence tendered in cross-examination are all conspicuously silent and bereft of any of the details regarding the liability in question and also regarding the issuance and execution of the cheque. Therefore, the case of the complainant is liable to be thrown out and the accused is entitled to the benefit of acquittal. Further there are many other aspects which would vitiate the impugned conviction and sentence imposed on the ::4:: Crl.R.P.No.123 Of 2015 petitioner in this case. On a consideration of these matters, this Court is of the considered view that the accused is entitled for the benefit of acquittal due to the following reasons: (A) A perusal of the statutory demand notice, complaint, proof affidavit and cross-examination of PW-1 (complainant) would disclose that none of the rudimentary and elementary aspects relating to the transaction, which has allegedly occurred between the parties, which led to the liability in question and also the crucial factual aspects relating to execution and issuance of the cheque are conspicuously omitted to be stated by the complainant. There are no whisper of averments either in the demand notice, complaint, proof affidavit and in the cross-examination as to the nature of the transactions between the parties and as to the date on which the amount of Rs.4 lakhs was allegedly handed over by the complainant to the accused as advance in the personal loan transaction and as to the date on which the cheque in question has been handed over by the accused to the complainant. To a pointed question to PW-1, during cross-examination, as to the reasons for not disclosing these details in the demand notice, complaint, proof affidavit, etc., the complainant (PW-1) has stated that he has no reasons ::5:: Crl.R.P.No.123 Of 2015 to offer in that regard. 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. ::6:: Crl.R.P.No.123 Of 2015 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 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 view of the above said aspects, the only conclusion that could have been arrived at by the criminal court is that the case of the complainant is bereft of any credibility and it would be highly unsafe to convict the accused for the offence alleged on the basis of a complaint, which has suppressed the vital and crucial aspects and which has deprived the accused a reasonable opportunity to face the trial. In this view of the matter, the complaint is liable to be thrown out on this ground alone. (B) No material circumstance has been brought out by the complainant's evidence as to the nature of relationship between the parties and proximity of the relationship so as to convince the court as to the circumstances, which induced the complainant to advance such a huge amount of Rs.4 lakhs to the accused without any security, documentation or receipt. Therefore, the basic allegations raised by the complainant regarding the very origin of the transaction is colluded ::7:: Crl.R.P.No.123 Of 2015 with suspicion and in order to alleviate this, the complainant should have let in cogent and precise evidence to satisfy the criminal court that there were justifying circumstances which induced him to advance such huge amount of Rs.4 lakhs without any security, receipt, etc. In the absence of such convincing evidence on record, it is highly unsafe for the criminal court to convict the accused on the basis of such week evidence. (C) Both the courts below have egregiously erred in holding that the complainant has proved his source of funds. Nowhere in the complaint or in the proof affidavit has the complainant made any averments in that regard but, during cross-examination, PW-1 has clearly deposed that he is not an Income Tax payee and he has only income from his trading business. The nature of his trading business is not disclosed by PW-1. But he would candidly admit before the court that the annual profit in the year is Rs.1 lakh and that he cannot give the exact evidence in that regard and that he is not maintaining account relating to Profit & Loss account in the running of the business. He has also stated that he has extra income from agriculture. But that his major source of his income is from his trade. Further he would depose ::8:: Crl.R.P.No.123 Of 2015 that he had taken a loan of Rs.1.5 lakhs from the North Malabar Gramin Bank for running of his business. Nowhere has he stated in the evidence that it was the amount by way of loan from the Gramin Bank that was advanced to the accused. On the other hand, the deposition of PW-1 is very clear that the loan that he had taken from the Gramin Bank was some time ago and that too for running his trading business. However, the trial court has made some findings in the impugned judgment as if the complainant had utilised the loan amount from the Gramin Bank as the money which has borrowed to the accused. The said factual findings made by the trial court are perverse and unreasonable. No evidence has been let in by the complainant to show that he has access to sufficient funds by which he could advance huge amount of Rs.4 lakhs at the relevant time. PW-1 himself has admitted that his major source of income is from agriculture in which he is getting annual profit of Rs.1 lakh. PW-1 has stated his income from the trading business. Taking into account the admission made by PW-1 that his income may be 50% from agriculture and 50% from the trading business, even then it is highly unbelievable that the complainant would be able to make borrowal of Rs.4 lakhs at the relevant time. No ::9:: Crl.R.P.No.123 Of 2015 material evidence has been let in by the complainant to convince the court that he had necessary source of funds at the relevant time for making the borrowal to the accused. The Apex Court in the decision in John K.Abraham v. Simon C.Abraham reported in (2014) 2 SCC 236 = 2014 (1) KLT 90 (SC) = 2014 (3) KHC 2483 (SC), has held that the in order to draw statutory presumption under Secs.118(a) and Sec.139 of the N.I. Act, the burden is cast heavily on the complainant for having advanced the money to the accused, at the relevant time, etc. The legal position in this regard has been reiterated by the Apex Court in the judgments 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. In the light of the above said legal principles settled by the Apex Court, the only conclusion that could have been reached by a court is that the complainant has miserably failed to prove his source of funds at the relevant time to make such a huge amount of Rs.4 lakhs to the accused and therefore the complainant has failed to get the benefit of statutory presumption under Sec.118(a) and Sec.139 of the N.I. Act. (D) Both the courts below have gravely erred in rendering the finding that the complainant has not challenged the execution and ::10:: Crl.R.P.No.123 Of 2015 issuance of the cheque and that he has not denied the averments relating to execution of the cheque, etc. A scanning of the cross- examination of PW-1 would clearly indicate that the defence has raised serious objections as against the very execution and and issuance of the cheque and stated the suggestion that such transaction has never been taken place between the parties. The basic defence set up by the accused was that the 3 cheque leaves were missing from 2005 and that he has no transaction with the complainant. Therefore, the findings of the courts below that the accused has not challenged the execution and issuance of the cheque while cross-examining PW-1 is incorrect and plainly wrong. 5. In the light of the above said aspects, this Court is of the considered view that both the courts below have committed grave illegality and impropriety in rendering of the impugned judgments inasmuch as the above said vital and crucial aspects of the matter have been shut out from consideration. The upshot of the above discussion is that the impugned judgments of conviction are liable to be reversed and the accused is entitled for the benefit of acquittal. Accordingly, it is ordered that the impugned judgment of both the courts below are set ::11:: Crl.R.P.No.123 Of 2015 aside and the accused is acquitted of the offence punishable under Sec.138 of the N.I. Act and he is set at liberty. 6. It is submitted by Sri.V.T.Madhavanunny, learned counsel appearing for the revision petitioner-accused, that the petitioner has deposited an amount of Rs.1 lakh before the trial court in relation to this case in compliance of the interim order of this Court dated 20.2.2015. If that be so, the trial court will take immediate steps to release the said amount to the accused on an application made by that party. With these observations and directions, the Crl.R.P stand finally disposed of. ALEXANDER THOMAS, Judge. bkn/- "