Dismissed

Muhammed Basheer v. Geetha

Kerala HC14 Jun 2017Crl.L.P./108/2017

Case brief

AI extract

What is this about?

In a criminal appeal against an acquittal for cheque bounce, the High Court dismissed the leave petition to institute a criminal appeal. The court held that the trial court validly rebutted the statutory presumption under Section 139 of the Negotiable Instruments Act due to the complainant's failure to prove the financial source of the loan and suppression of material facts in the statutory demand

What did the court decide?

The Criminal Leave Petition is bereft of merit and is dismissed.

Muhammed Basheer Vs Geetha — Cheque Dishonour | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 14TH DAY OF JUNE 2017/24TH JYAISHTA, 1939

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Crl.L.P..No. 108 of 2017 ()

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JUDGMENT IN ST. 386/2016 OF C.J.M.,PALAKKAD

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PETITIONER(S)/PETITIONER/COMPLAINANT:

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MUHAMMED BASHEER,

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AGED 36 YEARS, S/O.SAIDALAVI, VENNAKKARA, NOORANI, PALAKKAD.

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BY ADV. SRI.JACOB SEBASTIAN

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RESPONDENT(S)/RESPONDENTS/ACCUSED & STATE:

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1. GEETHA, AGED 48 YEARS, D/O.KUNJIRAMAN EZHUTHACHAN, KADAMPUZHA, MALAPPURAM, PIN-676553.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 12-04-2017, THE COURT ON 14-06-2017, PASSED THE FOLLOWING:

SKG

ALEXANDER THOMAS, J.

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Crl.L.P.No. 108 of 2017

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Dated this the 14^th day of June, 2017 O R D E R

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The prayer of the petitioner is for orders from this Court to grant special leave by virtue of the enabling powers conferred under Sec.378(4) of the Cr.P.C. so as to institute Criminal Appeal to impugn the judgment dated 8.2.2017 rendered by the trial court (Chief Judicial Magistrate's Court, Palakkad), wherein the accused therein has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act.

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Heard Sri.Jacob Sebastian, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

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The brief of the prosecution case is that in discharge of a liability of Rs.10 lakh owed by the accused to the petitioner complainant, the accused had issued the instant dishonoured cheque in question viz., Ext.P-1 dated 24.10.2012 for Rs.10 lakhs, drawn from her account and payable to the complainant and that the cheque when presented, by the complainant, was dishonoured on the ground of insufficiency of funds and thereafter, the complainant had sent Ext.P-3 statutory demand notice dated 10.3.2011 calling upon the accused to pay off the amounts covered

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Crl.L.P.108/17 - : 2 :-

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by the cheque within 15 days and that the said notice was duly served as per Exts.P3 & Ps-4 and that the accused had not responded thereto. This led to the institution of the abovesaid complaint and the conduct of the trial. During the trial, the complainant has examined himself as P.W-1 and Exts.P-1 to P-4 have been marked on behalf of the complainant. The defence has marked Exts.D-1 to D-3, but has not adduced any oral evidence.

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The version of P.W-1 (complainant) is that an amount of Rs.10 lakhs was owed by the accused to him as liability, which was sought to be cleared by the dishonoured cheque in question and that he has complied with all the requisite formalities for the institution of the complaint, etc. The challenge made by the accused was that the accused had borrowed an amount of Rs.50,000/- from the complainant in the year 2000 and that at that time, she was constrained to furnish a blank signed cheque as security to the complainant and that she had discharged the entire liability on various occasions by paying even interest thereon, and the total amount paid by her comes to Rs.1.27 lakhs, but in spite of that, the complainant had not returned the security cheque stating that the same was misplaced and later, he threatened the accused that unless she pays an extra amount of Rs. 1 lakh, he will not give back the security cheque, etc. That complainant used to continuously harass the accused by making threatening calls to her and

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Crl.L.P.108/17 - : 3 :-

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she was compelled to file complaint before the Police, etc.

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Since it is admitted by the accused that she had given blank signed cheque, there is no dispute that the signature is in the cheque is that of the accused and that the cheque has been issued from an account maintained by the accused. Therefore, going by the legal principles in that regard in various decisions of the High Courts and Apex Courts as in T.Vasantha Kumar v. Vijayakumari, reported in (2015) 8 SCC 378, the benefit of statutory presumption available under Sec.139 of the Negotiable Instruments Act could be drawn in favour of the complainant. However, from the perusal of the impugned judgment of acquittal rendered by the trial court as well as the materials on record, it is seen that the said statutory presumption has been strongly and effectively rebutted by the accused in view of the following aspects:

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(a) Since the accused had denied the entire transaction regarding the borrowal of Rs.10 lakhs, the trial court held that the complainant is bound to prove his financial source as to how he could raise such a huge amount of Rs. 10 lakhs. The Apex Court in the case in John K.Abraham v. Simon C. Abraham reported 2014 (2) SCC 1, has held that in order to draw the presumption under Sec.139 and Sec.118 (a) of the N.I. Act the burden is heavily cast upon the complainant to show that he had required funds and source for having advanced the money to the accused. The trial court has found that the complainant has miserably failed to prove

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Crl.L.P.108/17 - : 4 :-

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his source of money either by producing necessary supporting evidence or by furnishing requisite details, which are sufficient and necessary to infer that he is a person having sound financial capacity to raise Rs.10 lakhs in lump sum at the relevant time. Nothing has been stated in the complaint about his source of income and the source from which he had raised a huge amount of Rs.10 lakhs. Even in his evidence, P.W-1 has not given any proper details. On the one hand, though he would depose that he conducts tea business, but he has failed to state the volume of business done by him and that he would also admit that the income generated from his business is less than the income tax limit and that he is not an income tax payee. The trial court has also makes a comment that P.W-1 was even unable to give a plausible explanation as to how he raised a huge amount of Rs. 10 lakhs and that he has no case whatsoever that the said amount was withdrawn from his account.

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(b) As the specific case of the complainant was that he had given the huge amount of Rs. 10 lakhs to the accused without any interest or without any receipt, etc. the trial court has rightly held that such monetary transactions could occur only with persons of close relationships or close acquaintance. It was found that on record, there is no evidence to prove that the complainant has any close relationship or acquaintance with the accused. In pointed cross examination, P.W-1 deposed that he does not know anything about the family background of

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Crl.L.P.108/17 - : 5 :-

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the accused and he does not know exactly for what purpose the accused had borrowed huge amount of Rs.10 lakhs. He does not know in which school the accused was working as a teacher. The trial court has noted that the accused is not a person hailing from Palakkad, whereas the complainant is from that district. P.W-1 has clearly admitted that he does not know the family members of the accused or financial capacity of the accused and the exact purpose, for which she had borrowed money, etc. P.W-1 would depose that the accused was working at Government Upper Primary School, Puthoor, and that the accused had filed application to call for documents from the said school to prove that she never worked there and the complainant had opposed that application, which resulted in dismissal. These are all factual circumstances which have come out in evidence, on the basis of which, the trial court has held that the entire story put forward by P.W-1 that he had advanced a personal loan of Rs. 10 lakhs to the accused, who is known to him, is bereft of any credibility.

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(c) The trial court has pointedly found that there has been suppression of crucial material facts in the statutory demand notice, complaint, etc. It was found that both in the statutory notice as well as in the complaint the complainant has not disclosed the date on which the accused had approached him for seeking financial assistance, date on which the complainant had paid the amount to the accused and whether

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Crl.L.P.108/17 - : 6 :-

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accused had issued a post dated cheque or not. The defence had strongly contended that all these material and relevant facts were suppressed by the complainant for the purpose of developing a story after knowing the defence that may be set up by the opposite party to suit his convenience at the time of evidence.

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This Court in the judgment in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233 has held that suppression of material facts relating to the alleged transaction in the statutory demand notice, complaint, etc. is an artifice frequently used by certain litigants, with the intention to develop a story, after knowing the defence that may be set up by the opposite party and that the doors of the court should be closed to such fortune seekers. In the said judgment this Court has held in paras 18 and 20 as follows:

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“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.

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xxx xxx xxx

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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

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Crl.L.P.108/17 - : 7 :-

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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.”

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The abovesaid factual circumstances taken into account by the trial court are certainly relevant and material aspects, on the basis of which the trial court has come to the considered conclusion that the statutory presumption has been effectively and strongly rebutted by the accused in this case. With the rebuttal of such statutory presumption, the same disappears and then the complainant is under heavy burden to prove his case and thereafter, no material evidence has been adduced in that regard to either establish the transaction or the issuance of the cheque. It is on the basis of these findings of the facts that the trial court has come to the considered conclusion that the accused is entitled for the benefit of acquittal. These factual findings on the basis of which the trial court has come to the considered conclusion cannot be said to unreasonable or perverse. Merely because another view is possible, is no ground to interfere with the considered verdict of acquittal.

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In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in (2012) 5 SCC 789 = 2012(4) Supreme 72, the Apex Court has held as follows:-

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“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.”

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Crl.L.P.108/17 - : 8 :-

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Further, in the case Pudhu Raja and another Vs. 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 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 ”.

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On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion that even if appeal is entertained, there is very little scope of any interference with the considered verdict of acquittal. Accordingly, this Court is constrained to hold that the Leave Petition is bereft of any merit and accordingly, the same is dismissed.

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Sd/-

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sdk+ ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

Muhammed Basheer v. Geetha

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Muhammed Basheer v. Geetha

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