In a special leave petition under Cr.P.C. 378(4), the petitioner sought leave to appeal against the magistrate's acquittal of the accused in a cheque dishonour case. The High Court held the leave petition lacks merit as the trial court's findings were not perverse.
Leave to appeal is dismissed as the leave petition is bereft of merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939
Crl.L.P..No. 215 of 2017 ()
ST 43/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHENGANNUR.
PETITIONER/COMPLAINANT:
PONNAMMA SASIDHARAN MADATHIPARAMBIL HOUSE, MUNDENCAVU PO., CHENGANNUR, ALAPPUZHA (DT).
BY ADV. SRI.P.VINODKUMAR
RESPONDENTS/ACCUSED & STATE:
1. INDIRA BHAI, ANANDHABHAVAN PAUMALA MURI, KADAPRA PO., ALAPPUZHA DT., PIN-688001.
2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31.
R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 27-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
mbr/
ALEXANDER THOMAS, J.
Crl.L.P.No.215 of 2017
----------------------------------------Dated this the 27th day of June, 2017
JUDGMENT
This is an application seeking special leave of this Court in terms of Section 378(4) of the Cr.P.C. for instituting Crl.Appeal, so as to challenge the judgment dated 27.4.2017 of the trial court concerned (Court of the Judicial First Class Magistrate Court-I, Chengannur) whereby the accused/R1 therein has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner herein is the complainant in S.T.No.43 of 2016.
Crl.L.P.No.215/17
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After complying the statutory formalities, the complaint has been filed, which resulted in the instant trial.
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she has been working as a collection agent in the post office and that she used to go to the house of the complainant for taking collection. The complainant is engaged in money lending business. The husband of the accused was examined as DW2 who deposed that he had borrowed an amount of Rs.6,00,000/- from the complainant on 6.6.2012 and that he had executed Exhibit D2 promissory note, etc., promising to repay the total amount of Rs.11lakhs within 1½ years and that Exhibit D2 promissory note was written in his own handwriting, etc. and further that six blank signed cheques of the accused were also entrusted to the complainant at that time as security.
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that she is only a house wife. She would further add that the amount available with her was left behind by her husband and such amount was given to the accused. Further It is added that the accused is not her relative and that she is having only a friendship with the accused for the last 22 years and when the accused and her husband came to her house and demanded Rs.45,00,000/-, she had given a cheque to them. Later, when confronted to the question whether the cheque was given to them on the same date, PW1 (complainant) would depose that the amount was given as cash and not by cheque. That amount was given to her by her children and it was withdrawn from the Federal Bank, Chengannur Branch. In spite of specific challenge as to whether PW1 could produce the Bank records showing withdrawal of the amount, the complainant has not bothered to produce any Bank records. The inconsistent stand taken by PW1 regarding the source of her funds and the non production of the Bank accounts were held to be fatal to the prosecution case. The trial court held that it is highly incredible and unbelievable that a house wife with no income could advance the huge amount of Rs.45,00,000/- and that too, to a collection agent of the post office. Further the complainant was not able to say whether for what purpose the amount was advanced to the accused other than the vague statement that the amount was given for her immediate financial difficulties.
Crl.L.P.No.215/17
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at the stage of cross examination that the amount of Rs.45,00,000/was given to the accused on 4.8.2014 and that the amount was withdrawn from the Bank 4 or 5 days prior to the date of transaction. The complainant was specifically asked as to why such a huge amount was not given by way of cheque or demand draft, she replied that she does not remember the reasons for it. According to PW-1, the amount, date, name of the payee in Exhibit P-1 cheque and the signature were all entered by the accused. Later, when PW-1/complainant was questioned, as to who had written the amount and date in Ext.P-1 cheque, she turned around and replied that the entries were made by the husband of the accused and it was signed by the accused, etc. These inconsistent changing stands of PW-1 would also clearly show that her version is not believable and credible. Moreover, since the complainant has admitted the previous transaction in terms of Exhibit P-2, this would also broadly probablise the believability of the defence version. Further, the demand notice, complaint and proof affidavit, are bereft of any relevant and material particulars regarding the transactions, which led to the issuance of the cheque and about the execution of the cheque, etc. Even in the evidence given by PW-1, she would change her stand on many crucial aspects.
State of Kerala , reported in 2016 (4) KLT 233 that an accused is
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essentially called upon in a criminal trial to answer only the gravamen of the charges and allegations raised in the complaint and that non-disclosure of crucial and relevant aspects in respect of the transaction which led to the issuance of the dishonoured cheque, would seriously deprive the right to free trial of the accused, as he will not be in a position to know as to what exactly are the allegations that he/she has to meet in the trial. Moreover, it would give a handle to the complainant to wait and watch for knowing the stand of the defence and then shape up the case of the complainant, etc. It would be pertinent to refer to paragraphs 18 and 20 of the decision of this Court in
K.K.Divakaran's case, which reads 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.
19.
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Crl.L.P.No.215/17
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 all these aspects, the trial court cannot be faulted for having come to the considered conclusion that the accused has rebutted the statutory presumption and that the complainant could not prove her case. Those findings of facts, which led to the acquittal of the accused cannot be said to be perverse or unreasonable.
Darshan Lal reported in (2012) 5 SCC 789 = 2012(4) Supreme 72, the Apex Court has held as follows:-
“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.”
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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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 conclusive findings of the court below, which led to the acquittal in the impugned judgment. Accordingly, this Court is constrained to hold that the Leave Petition is bereft of any merit and accordingly, the same
is dismissed.
Sd/- ALEXANDER THOMAS JUDGE
csl
3 issues framed by the court
Whether the High Court should grant special leave to appeal against the acquittal of the accused in Section 138 NI Act case.
Whether the acquittal of the accused is perverse given the complainant's failure to prove source of funds and inconsistent evidence.
Whether the petitioner's application for special leave to appeal has any merit.
Colour shows how this judgement treated each authority
T.Vasanthakumar v. VijayakumariApplied¶33
(2015 (8) SCC 378) · Who else cites this
John K.Abraham v. Simon C. AbrahamExplained¶39
(2014) 2 SCC 236 · Who else cites this
K.K.Divakaran v. State of KeralaApplied¶44
2016 (4) KLT 233
State of Rajasthan v. Darshan Singh @ Darshan LalReferred¶57
(2012) 5 SCC 789 · Who else cites this
Pudhu Raja and another Vs. StateReferred¶60
(2012) 11 SCC 196 · Who else cites this
3 provisions across 2 enactments
PONNAMMA SASIDHARAN
INDIRA BHAI
STATE OF KERALA
ALEXANDER THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
