Allowed

Binoy Varghese v. State of Kerala

Kerala HC15 Jun 2017Crl.Rev.Pet/483/2012

Case brief

AI extract

What is this about?

The High Court allowed this criminal revision petition, setting aside convictions and sentencing for cheque dishonour under Section 138 NI Act. The court held that the accused rebutted the statutory presumption via bank evidence proving substantial payment. It further quashed the conviction due to the complainant's suppression of material facts in the demand notice and complaint, violating Article

What did the court decide?

Impugned judgments of lower courts set aside; accused acquitted of the offence and set at liberty.

Binoy Varghese Vs State of Kerala — Cheque Dishonour | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

THURSDAY, THE 15TH DAY OF JUNE 2017/25TH JYAISHTA, 1939

¶5

Crl.Rev.Pet.No. 483 of 2012

¶6

AGAINST THE JUDGMENT IN CRL.A.NO. 184/2008 OF ADDITIONAL SESSIONS COURT-II, MAVELIKARA

¶7

AGAINST THE JUDGMENT IN C.C.NO. 829/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, CHENGANNUR

¶8

----------------

¶9

REVISION PETITIONER(S)/APPELLANT/ACCUSED :

¶10

BINOY VARGHESE,

¶11

S/O.VARKEY, AGED 35 YEARS, VALUMEL VEEDU, CHAKKUPALAM VILLAGE, VELUMBANCHOLA TALUK.

¶12

BY ADVS. SRI.P.MARTIN JOSE

¶13

SRI.P.PRIJITH SRI.JUSTINE JACOB SRI.ANEESH JAMES

¶14

RESPONDENT(S)/RESPONDENT/COMPLAINANT :

¶15

1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

¶16

2. BABY CHERIAN, S/O.KOSHY, VALETHUKIZHAKKE THAKIDIYIL, KODUKULANJI MURI, ALA VILLAGE, CHENGANNUR TALUK, PIN-689 136.

¶17

R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY R2 BY ADV. SRI.N.ASHOK KUMAR

¶18

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Msd.

ALEXANDER THOMAS, J.

==================

Crl.R.P.No. 483 of 2012

¶23

==================

¶24

Dated this the 15^th day of June, 2017 O R D E R

¶25

The petitioner is the accused for offence punishable under Sec.138 of the Negotiable Instruments Act, in C.C.No.829/2005 on the file of the Judicial First Class Magistrate Court-I, Chengannur, instituted on the basis of a complaint filed by R-2 herein. The trial court as per the impugned judgment rendered on 9.3.2008 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 compensation of Rs.12.5 lakhs to the complainant 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 had preferred Crl.A.No.184/2008 before the Sessions Court, Mavelikkara. The amount covered by Ext.P-1 dated 30.8.2005 in this case is Rs.11.25 lakhs. The appellate court concerned [Court of Additional Sessions Judge-II, Mavalikkara], as per the impugned judgment dated 3.10.2011 had upheld the conviction and sentence and

¶26

thereby dismissed the appeal. It is aggrieved by these verdicts, that the petitioner has preferred the instant Crl.R.P by taking recourse to the

¶27

Crl.R.P.483/12 - : 2 :-

¶28

remedy under Sec.397 r/w Sec.401 of the Cr.P.C.

¶29

Heard Sri.Martin Jose, learned counsel appearing for the petitioner-accused, Sri.N.Asok Kumar, learned counsel appearing for R-2 complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State.

¶30

It would be relevant to note the factual aspects, which led to the institution of the instant complaint. At the outset it would be appropriate to refer to the factual aspects relating to the execution and registration of Ext.D-5 sale deed dated 29.3.2005 regarding the conveyance of landed property coming to 7.31 acres, as the said transaction was sequel to some previous sale transactions. The petitioner had entered into an oral agreement for sale for a total extent of 17.42 acres of land. The said 17.42 acres of land comprised of 3.76 acres belonging to one Ramachandran Pillai, 6.40 acres belonging to Thankamma Koshy (mother of R-2 complainant) and 7.31 acres belonging to Kunjukutty, deceased brother of R-2. The said rights of deceased Kunjukutty had devolved upon R-2, his other brothers and sisters as well as his mother Thankamma Koshy. It is for this entire extent of 17.42 acres, that there was an oral agreement between the petitioner and R-2. R-2 was having a power of attorney of Ramachandran Pillai as well as other LRs of deceased Kunjukutty and on the strength of the said power of attorney given to R-2, the petitioner had entered into

¶31

Crl.R.P.483/12 - : 3 :-

¶32

an oral agreement with R-2 for sale of the entire extent of 17.42 acres for a total sale consideration of Rs.72.48 lakhs in the year 2002 and Rs.20 lakhs was paid by the petitioner to the complainant without any written documents and ultimately the respective properties of Ramachandran Pillai and Thankamma Koshy were assigned by Ext.D-1 sale deed dated 18.11.2002 and Ext.D-2 dated 18.11.2002 respectively to the petitioner's brother and petitioner's wife respectively and on a further receipt of Rs.31 lakhs by Demand Draft. By this time, the legal heirship certificate along with Gazette notification relating to late Kunjukutty was not available with R-2. On 21.11.200,2 Ext.D-3 agreement was executed whereby it was acknowledged that a total sum of Rs.51 lakhs was received out of which Rs.41 lakhs reflects the final sale consideration for Exts.D-1 and D-2 sale deeds and balance Rs.10 lakhs was acknowledged by both sides to be the advance for sale for balance 7.46 acres inclusive of 15 cents of land without title and that the sale deed has to be executed after obtaining legal heirship certificate on or before 31.12.2002. Since the sale deed was not executed for the said remaining property, initially the petitioner had sent notice dated 2.1.2003 (referred in Ext.D-4) demanding specific performance by R-2 to which R-2 had issued reply dated 10.1.2013 agreeing to execute the sale deed on 21.1.2003. In the meanwhile, the legal heirship certificate and its Gazette notification were obtained. Thereafter Ext.D-4 notice dated

¶33

Crl.R.P.483/12 - : 4 :-

¶34

23.1.2003 was issued by the petitioner to R-2 and other LRs of deceased owner demanding specific performance.

¶35

Thereafter Ext.D-5 sale deed dated 29.3.2005 was executed by R-2 in favour of the petitioner conveying the land of 7.31 acres. There are no disputes between the petitioner and R-2 as regards the factual developments up to this stage.

¶36

It is recited in Ext.D-5 sale deed dated 29.3.2005 that the entire sale consideration amount of Rs.31.25 lakhs has been paid by the petitioner to R-2 and that the said total amount of Rs.31.25 lakhs comprises of Rs.10 lakhs (which was earlier received as advance) + Rs.17.16 lakhs (given through bank transaction) + Rs.4.09 lakhs (given in cash to R-2 prior to the registration of the sale deed). However, the case of the complainant is that on the date of execution of Ext.D-5 dated 29.3.2005, the petitioner was short of funds and wanted to take a mortgage loan and that without actually receiving the entire sale consideration of Rs. 31.25 lakhs mentioned in Ext.D-5, R-2 had executed Ext.D-5 sale deed with the recital that the entire sale consideration of Rs. 31.25 lakhs was received, so as to enable the petitioner to avail mortgage loan over that property. That if non-payment of the full amount of the sale was mentioned in Ext.D-5, then the bank concerned would not have sanctioned any loan on the mortgage proposal. After Ext.D-5 sale deed, the parties (petitioner and R-2) had executed Ext.P-7 agreement

¶37

Crl.R.P.483/12 - : 5 :-

¶38

on the same day, viz., 21.3.2005, acknowledging that as a matter of fact, an amount of Rs.11.25 lakhs, out of the total sale consideration of Rs. 31.25 lakhs, was not actually paid by the petitioner and that thus the petitioner had issued Ext.P-1 cheque dated 30.8.2005 for Rs. 11.25 lakhs, which was handed over at the time of execution of Ext.P-7 agreement dated 29.3.2005. According to the complainant, when the said Ext.P-1 cheque was later presented, the same was dishonoured on account of insufficiency of funds and consequent to Ext.P-2 dishonour memo dated 30.9.2005, he had sent statutory demand notice as per Ext.P-5 calling upon the accused to pay off the amount covered by the cheque, and later on his refusal to make the payment, the complaint was instituted, etc.

¶39

The case of the petitioner accused is that the entire amount of Rs. 31.25 lakhs was actually paid prior to the execution of the Ext.D-5 sale deed, out of which Rs.10 lakhs was paid as advance and it is admitted in Ext.D-3 and has also been admitted by P.W-1 (R-2 herein) in his evidence and further that another amount of Rs.17.16 lakhs was paid through bank transaction by transfer from the petitioner's loan account to the account of R-2 at South Indian Bank, Muthalakkodam Branch, Idukki district, on 29.3.2005 before the execution of Ext.D-5 sale deed and further that Rs. 4.09 lakhs was paid in cash , which has been expressly acknowledged in Ext.P-5 etc. According to the petitioner, Ext.P-7

¶40

Crl.R.P.483/12 - : 6 :-

¶41

agreement dated 29.3.2005 and Ext.P-1 cheque were executed only to enable R-2 to explain to the co-sharers of the property, about the monies received and that though R-2 had actually received full amount of Rs.31.25 lakhs from the petitioner, R-2 had diverted Rs. 11.25 lakhs out of Rs. 31.25 lakhs for temporarily meeting the expenses in relation to the conduct of the marriage of his daughter, who got married immediately after Ext.D-5 and further that R-2 had informed his co-sharers that he had actually received only Rs.20 lakhs from the petitioner and that the balance Rs.11.25 lakhs will be paid by the petitioner through the encashment of Ext.P-1 cheque dated 30.8.2005. That the petitioner was in good terms with R-2 and had therefore acceded to the above request of R-2 as otherwise there would have been further delaying in execution of sale deed. The petitioner would contend that he had full confidence in R-2 inasmuch as it is admitted by R-2 that the petitioner had initially given Rs. 20 lakhs as advance in the oral agreement for sale without any written receipt or written documents. Further that since R-2 was in dire need of money to immediately meet some of the expenses in relation to daughter's marriage, which was conducted by the end of March, 2005, he had diverted Rs. 11.25 lakhs from the abovesaid total sale consideration and that Ext.P-7 agreement was executed only to enable R-2 to show the same to his co-sharers to explain the shortfall due to the diversion of the money and that as and when he raises the money, he would destroy

¶42

Crl.R.P.483/12 - : 7 :-

¶43

Ext.P-7 agreement and Ext.P-1 cheque etc.

¶44

The trial court and the appellate court have convicted the petitioner solely on the basis of Ext.P-7 agreement dated 29.3.2005 and that the transaction between the parties and the liability of the petitioner are proved by Ext.P-7 agreement, etc. According to the petitioner, as the very defence of the petitioner is that a blank signed cheque was given for R-2, the petitioner has no serious dispute that the cheque contains his signature and that the cheque has been drawn from a bank account maintained by him. So the statutory presumption under Sec.139 of the Negotiable Instruments Act could be drawn in this case, in view of the legal principles in that regard laid down by various High Courts and by the Apex Court in decisions as in T.Vasantha Kumar v. Vijayakumari, reported in (2015) 8 SCC 378. The question is whether the statutory presumption has been effectively rebutted by the petitioner and if so, whether the complainant has thereafter discharged his burden to prove the transaction as well as the liability in question. After consideration of the legal principles in this regard, this Court is of the considered opinion that both the courts below have omitted to take into consideration the crucial and relevant evidentiary materials on record and that the said indisputable factually and evidentiary materials on record would clearly show that the petitioner has successfully and strongly rebutted the statutory presumption under Sec. 139 of the Negotiable Instruments Act

¶45

Crl.R.P.483/12 - : 8 :-

¶46

due to the following reasons:

¶47

Both sides would agree that the total sale consideration for Ext.P-5 sale deed dated 29.3.2005 is Rs.31.25 lakhs. Both sides would also agree that an amount of Rs.10 lakhs was initially received by the complainant as advance. This is all the more clear from the indisputable facts mentioned herein above. Moreover, P.W-1 has also admitted in his evidence that Rs.10 lakhs was received from the petitioner. The petitioner accused had adduced defence evidence through DW-1, the branch manager of the South Indian Bank, Muthalakkodam branch, Idukki district. DW-1 has clearly deposed that in relation to the property transaction between these parties, a savings bank account was started in the name of the complainant on 29.3.2005 as evident from Ext.D-7 bank opening form and Ext.D-8 declaration given by the complainant. Further that Ext.D-6 is the statement of account of the said S.B. Account started by the complainant on 29.3.2005. DW-1 has deposed that in respect of the abovesaid property of 7.31 acres, a mortgage loan was sanctioned to the petitioner and thereafter based on the instructions of the petitioner, an amount of Rs.17.16 lakhs was transferred by the said bank from the petitioner's loan account to the abovesaid Ext.D-7 S.B. Account of the complainant. It is also recited in Ext.D-5 sale deed that the amount of Rs.17.16 lakhs was remitted by the petitioner to the complainant through bank transaction. So the petitioner has proved in clear and categorical

¶48

Crl.R.P.483/12 - : 9 :-

¶49

terms that apart from the advance amount of Rs.10 lakhs, he has also remitted an amount of Rs. 17.16 lakhs to Ext.D-7 S.B. Account of the complainant as evident from the entries in Ext.D-6 statement of accounts of the said bank. During the cross examination of DW-1, the learned counsel for the complainant has made a suggestion to DW-1 that it could be seen that an amount of Rs. 7.16 lakhs was withdrawn from that account and as to whether the said amount was paid to the accused herein. This is an altogether new case that has been built up by the counsel for the complainant during the cross examination of DW1. P.W-1 has no case whatsoever that he had received Rs. 17.16 lakhs through bank transaction and that out of the said Rs. 17.16 lakhs, he had withdrawn Rs. 7.16 lakhs from his bank account and then had given the said money to the accused. Such a case is not set up by the complainant either in the demand notice, complaint, sworn statement, proof affidavit or in his cross examination and when such a case is not set up by the complainant, it is not permissible for the counsel for the complainant to raise up such a plea by way of suggestion to an independent witness, viz., the bank manager concerned. The case that is attempted to be set up by the complainant at this late stage is that as a matter of fact, he had received Rs. 10 lakhs as a advance and later Rs. 17.16 lakhs was also remitted by the petitioner to the complainant's account on 29.3.2005 and that as evident from Ext.D-6, from the said amount of Rs.17.16 lakhs, an

¶50

Crl.R.P.483/12 - : 10 :-

¶51

amount of Rs. 7.16 lakhs was withdrawn by him on the same day, viz., 29.3.2005 and that he had given the said amount to the accused and further that he had not received Rs.4.09 lakhs, which is stated to have been paid in cash as per the recitals in Ext.D-5 sale deed and that the actual amount owed by the petitioner is Rs. 7.16 lakhs + Rs. 4.09 lakhs, thus amounting to the total amount of Rs.11.25 lakhs, which is mentioned in Ext.P-7 agreement and Ext.P-1 cheque. Such a case has never been addressed even before the trial court or before the appellate court. Such a case regarding the payment of Rs. 7.16 lakhs by the complainant to the petitioner on 29.3.2005 cannot be permitted to set up at all, since even P.W-1 does not have such a case at any point of time. Therefore, even without going into the difficult task of ascertaining as to the correctness of the rival and controversial version projected by the rival parties, it can be seen that the petitioner has indisputably paid an advance amount of Rs. 10 lakhs plus he had remitted amount of Rs. 17.16 lakhs from his bank account to the complainant's account on 29.3.2005, which is clearly discernible from a mere reading of Ext.D-6 bank statement of accounts. Thus even for a moment, even if it is assumed that the petitioner did not really pay Rs. 4.09 lakhs in cash as recited in Ext.D-5 sale deed, it could be seen that indisputably the petitioner has paid a total amount of Rs.10 lakhs + Rs. 17.16 lakhs = Rs. 27.16 lakhs. Therefore, even assuming for a moment that the petitioner

¶52

Crl.R.P.483/12 - : 11 :-

¶53

has not actually paid Rs. 4.09 lakhs, which was claimed to be paid as cash, then out of the total sale consideration of Rs. 31.25 lakhs, the only alleged liability that could be attributed against the petitioner is Rs. 4.09 lakhs. Whereas the definite case of the complainant based on Ext.P-7 agreement is that the petitioner had owed a total amount of Rs. 11.25 lakhs to the complainant, which is reflected in Ext.P-1 dishonoured cheque, etc. Therefore, the substratum of the complainant's case regarding the total liability of Rs.11.25 lakhs allegedly owed by the petitioner, will stand collapsed through the defence evidence of DW-1 as well as Ext.D-6.

¶54

That apart, P.W-1 has even gone to the extent of deposing in his evidence that in the said sale transaction covered by Ext.D-5 sale deed, he had only received a total amount of Rs. 10 lakhs. The said version given by P.W-1 is absolutely incorrect and false. This throws great amount of light to any court regarding the very believability and credibility of the factual versions projected by the complainant. So also, the main plank on the basis of which the complainant has sought to project his case on the basis of Ext.P-7 agreement was that the petitioner was having shortfall of money to pay off the entire sale consideration of Rs. 31.25 lakhs and that he wanted to raise that money by creating a mortgage of the property and if it had been recited in the sale deed that the total sale consideration was not actually paid, then no bank would

¶55

Crl.R.P.483/12 - : 12 :-

¶56

have sanctioned any mortgage loan and for this purpose that Ext.P-7 agreement was arrived at between the parties, etc. Whereas the evidence of DW-1 bank manager would clearly show that the mortgage loan in that regard was sanctioned to the petitioner and that Rs.17.16 lakhs was transferred from the loan account to the S.B. Account of P.W-1 on 29.3.2005 as fully evident from Ext.P-6. It is also not in dispute that during those times, the bank hours was restricted upto 2 p.m. Ext.D-6 would clearly show that an amount of Rs.17.16 lakhs was remitted from the petitioner's loan account to the complainant's S.B. account on 29.3.2005 and therefore it could have been only before 2 p.m. on that day. Whereas, Ext.D-5 sale deed would clearly show that the same was presented for registration before the Sub registrar's office only at 3.30 p.m. on 29.3.2005, as can be seen from page 2 of Ext.D-5. Therefore, the said amount of Rs. 17.16 lakhs was remitted by the petitioner to the account of the complainant well before the registration of Ext.D-5 sale deed and this clearly goes to prove the correctness of the recitals in Ext.D-5 sale deed that an amount of Rs.17.16 lakhs was paid by the petitioner to the complainant through bank transaction. True it is recited in Ext.D-5 sale deed that the said remittance is through D.D. This appears to be a clerical mistake inasmuch as the payment was on the basis of transfer from the petitioner's loan account to the S.B. Account of the complainant and both accounts were at South Indian Bank,

¶57

Crl.R.P.483/12 - : 13 :-

¶58

Muthalakkodam branch, Idukki district. That apart, this proved payment of Rs. 17.16 lakhs as per Ext.D-6 was well before the registration of Ext.D-5 sale deed. This would also show that the accused had actually been sanctioned and disbursed the mortgaged loan amount and this has also been testified by DW-1 bank manager. If that be so, the foundation of the case projected by the complainant that the whole arrangement as per Ext.P-7 agreement was created only to subsequently enable the accused to apply for the sanction of a mortgage over their property would crumble to the ground. This would also show that the version projected by the complainant was not a correct and true version. At any rate, this really probabilises the defence version of the petitioner accused. When P.W-1 has shown his lack of credibility as a witness, due to the aforestated aspects, the question is whether the version of the accused or that of the complainant regarding the alleged payment or non payment of the balance amount of Rs. 4.09 lakhs is to be relied on. As stated herein above, this Court actually need not go into that issue at all, as it has been conclusively proved Ext.D-6 as well as the admitted evidence of P.W-1 regarding the receipt of the advance money, that the petitioner has actually paid Rs. 27.16 lakhs comprising of Rs. 10 lakhs advance + Rs. 17.16 lakhs remittance as per Ext.D-6 and so even if he has not actually paid Rs.4.09 lakhs, the foundation of the allegation of the petitioner that the total liability is Rs.11.25 lakhs, would crumble to the

¶59

Crl.R.P.483/12 - : 14 :-

¶60

ground. But taking into account the fact that even P.W-1 has admitted that the marriage of his daughter was conducted towards the end of March, 2005, the version projected by the accused that it was for meeting some of the immediate expenses of the said daughter's marriage that the complainant had diverted some money for which both sides out of confidence in each other had entered into an understanding as per Ext.P7, appears to have a strong element of probability and credibility. This should be adjudged all the more in the light of the fact that the version of the complainant that he had recovered only Rs.10 lakhs as well as his version regarding the arrangements made to help the petitioner to subsequently get mortgage loan, etc. has been found to be false and therefore it will not be out of place for any court to place more credibility and believability on the version of the accused compared to that projected by complainant. These aspects are not really necessary for any determination in view of the conclusive findings regarding the payment of the total amount of Rs. 27.16 lakhs.

¶61

The very case set up by the complainant in the complaint was that the petitioner had paid Rs.20 lakhs and that he could not raise Rs.11.25 lakhs and that is the amount that is covered by Ext.P-7 agreement and Ext.P-1 cheque. The case that was sought to be projected by the learned counsel for the complainant during the cross examination of DW-1 was to the effect that he had received not only Rs. 10 lakhs as

¶62

Crl.R.P.483/12 - : 15 :-

¶63

advance, but also Rs. 17.16 lakhs through bank remittance, but that out of the said Rs. 17.16 lakhs, he had withdrawn Rs.7.16 lakhs and had given it to the accused and further that he had not actually received Rs. 4.09 lakhs, which was said to have been paid in cash, etc. and that the total liability of the petitioner is thus Rs. 7.16 lakhs + Rs. 4.09 lakhs = Rs. 11.25 lakhs, etc. As earlier held herein above, in the first place, the complainant has never set up a factual case like that. When the specific case set up by the complainant in its complaint is as stated herein above, he is obliged to prove that a transaction has been taken place in that manner and when his counsel builds up an entirely new case, it shows that the events have not taken place in the manner as suggested by the complainant in his complaint. Thus the very foundation of the complainant's case is shaken by such a new case. That apart, the complainant cannot be permitted to raise such case, which was never raised before at any stage.

¶64

Further It can be seen that Ext.P-5 demand notice dated 22.9.2005 is fully silent about any of the transactions which led to the issuance of Ext.P-1 cheque narrated herein above. Whereas in Ext.P-6 reply notice dated 10.10.2005 the petitioner has stated and disclosed the entire transactions starting from the sale of the total property extent of 17.42 acrers and that there is no legally enforceable debt or liability, etc. as alleged in the complaint, etc. The complaint is also fully silent about

¶65

Crl.R.P.483/12 - : 16 :-

¶66

any of the transactions and the complainant has not even disclosed about the aspects relating to Ext.P-7 agreement. It is in para 4 of the proof affidavit filed by the complainant in lieu of his chief examination that for the first time, he would disclose about the transactions, etc. Therefore, it can be seen that the complainant has fully suppressed the crucial and relevant aspects of the matter in his demand notice and in his complaint. It is by now too well established that in a criminal complaint, the accused is called upon essentially to defend the gravamen of the charges and allegations raised in the complaint. If the complaint does not disclose relevant and crucial factual aspects and material particulars, then it may be almost impossible for any accused to defend himself properly as he is not appraised as to what exactly he has been called upon to defend. Such omission of details would also give an easy handle to the complainant to change his version on the basis of a watch and wait game by seeing as to the defence stand that may be taken by the accused and then shape up the factual details, while giving evidence. This Court has held that such an approach would amount to deprivation of the precious right of the accused for fair and free trial as guaranteed in Art.21 of the Constitution of India and it will be relevant and profitable to refer to paras 18 and 20 of this Court's judgment in K.K.Divakaran v. State of Kerala, reported in 2016 (4) KLT 233, which read as follows:

¶67

“18. Before she filed the complaint the second respondent sent Ext.P4 statutory notice to the revision petitioner informing him about the

¶68

Crl.R.P.483/12 - : 17 :-

¶69

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.

¶70

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.”

¶71

The dictum laid down by this Court in the aforecited judgment would apply all its vigours in the facts of this case. The suppression of these crucial and relevant factual aspects in the demand notice as well as in the complaint will lead to a situation that the complaint is liable to be thrown out entitling the benefit of acquittal to the accused.

¶72

In the light of all these aspects, this Court is of the considered opinion that both the courts below have omitted to take into consideration any of the crucial and relevant aspects and has shut out such vital evidentiary aspects, which amount to grave illegality and impropriety in the rendering of the impugned judgments of both the

¶73

Crl.R.P.483/12 - : 18 :-

¶74

courts below. The impugned findings of both the courts below are vitiated by perversity and unreasonableness. The petitioner has thus been able to strongly and effectively rebut the statutory presumption, in the light of the abovesaid aspects. After the rebuttal of the statutory presumption, the complainant has not been able to prove his case as set up in his complaint. Therefore it is ordered in the interest of justice that the impugned judgments of the both the courts below are set aside and the accused is acquitted of the offence punishable under Sec. 138 of the Negotiable Instruments Act in this case and he is set at liberty.

¶75

At this stage, Sri.P.Martin Jose, learned counsel appearing for

¶76

the revision petitioner would submit that the petitioner accused has deposited Rs. 4 lakhs before the trial court in relation to this case in compliance with this Court's interim order dated 24.2.2012 in this revision. It is ordered that in case any amounts have been deposited by the petitioner before the trial court in relation to this case, then the trial court shall forthwith release that amount to the petitioner on an application in that made by that party.

¶77

With these observations and directions, the Criminal Revision Petition stands finally disposed of.

¶78

Bkn/sdk+

¶79

Sd/ALEXANDER THOMAS, JUDGE

¶80

///True Copy///

¶81

P.S. to Judge

¶82

Crl.R.P.483/12 - : 19 :-

Binoy Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

Binoy Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Muhammed Basheer Vs Geetha

Kalladikkattil Mohammed Jamal Vs State of Kerala

Ravindran.T.I Vs E.v.Mohandas

Indira Gandhi Memorial Vs Roys Abraham

Priyesh Vs Sreegruvayurappan Chit Pvt. Ltd.

A . Shaul Hameed Vs State of Kerala