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2017 DIGILAW 1267 (KER)

Padmakumari v. Manoj Kumar

2017-10-06

ALEXANDER THOMAS

body2017
JUDGMENT : 1. The petitioner is the accused in C.C. No. 59/2013 on the file of the Judicial First Class Magistrate's Court-III, Mavelikkara, for offence punishable under Section 138 of the Negotiable Instruments Act, instituted on the basis of the complaint filed by the 1st respondent (complainant) herein. The trial court as per the impugned judgment dated 22.3.2014 had convicted the petitioner and had sentenced him to undergo simple imprisonment for three months and to pay fine of Rs. 2,31,000/- under Section 138 of the Negotiable Instruments Act and in default thereof, the petitioner was sentenced to undergo simple imprisonment for a further period of one month. Aggrieved thereby, the petitioner had preferred Crl. Appeal No. 114/2014 before the appellate Sessions Court concerned (Court of Addl. Sessions Judge, Mavelikkara). The appellate court as per the impugned appellate judgment dated 17.3.2017 had upheld the conviction, but modified the substantive sentence to imprisonment till rising of the court and pay fine of Rs. 2,31,000/- with a default sentence clause of four months' simple imprisonment. It is aggrieved by the said findings of the courts below that the petitioner has preferred the instant revision petition by taking recourse to the remedies available under Section 397 read with Section 401 of the Cr.P.C. 2. Heard Sri. A. Shafeek (Kayamkulam), learned counsel appearing for the revision petitioner (accused), Sri. S. Shanavas Khan, learned counsel appearing for R-1 (complainant) and Sri. Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. Among the various contentions urged on behalf of the revision petitioner, Sri. A. Shafeek (Kayamkulam) appearing for revision petitioner (accused) would place more emphasis on two contentions. The first contention is to the effect that crucial material particulars relating to the transactions in question, which led to the liability and about the issuance of cheque have been suppressed in the complaint and therefore the accused is entitled for the benefit acquittal in the light of the legal principles laid down by this Court in the decision in K.K. Divakaran vs. State of Kerala, 2016 (4) KLT 233. It is stated that none of the crucial material particulars regarding the nature of the transaction, when exactly the borrowal transaction has taken place, when exactly the cheque was executed and handed over, etc. have been completely suppressed in the impugned complaint. It is stated that none of the crucial material particulars regarding the nature of the transaction, when exactly the borrowal transaction has taken place, when exactly the cheque was executed and handed over, etc. have been completely suppressed in the impugned complaint. The petitioner would place reliance on the decision of this Court in K.K. Divakaran vs. State of Kerala, 2016 (4) KLT 233, more particularly paras 18 and 20 thereof, 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. 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.” 4. 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.” 4. The second contention raised by the petitioner is to the effect that though the accused had raised serious challenge regarding the source of funds of the complainant, the latter has miserably failed to adduce any convincing and material evidence to prove the crucial fact that the complainant had source of funds to advance money to the accused at the relevant time in question. Reliance is placed by the petitioner on the legal principles laid down by the Apex Court in the decisions as in John K. Abraham vs. Simon C. Abraham, 2014 (2) SCC 236 and K. Subramani vs. K. Damodara Naidu, (2015) 1 SCC 99 , etc. Accordingly, the petitioner's counsel would strongly urge that as the complainant has miserably failed to adduce any convincing and material evidence to prove abovesaid crucial fact regarding the source of funds to make borrowal transaction, the complainant is not entitled to draw the statutory presumption under Section 118 (a) and Section 139 of the Negotiable Instruments Act. That both the courts below have totally overlooked these crucial aspects and that therefore the impugned judgments rendered by the courts below suffer from grave illegality, perversity, etc. Various other contentions are also raised by both sides. 5. Having heard the learned Advocates on both sides, this Court is of the opinion that the matter requires a serious re-look at the hands of the court below. A remit to the trial court at this stage might entail unnecessary delay and, therefore, this Court is of the view that the ends of justice could be advanced by remitting the matter to the appellate Sessions Court for consideration of the entire matter, including the abovesaid contentions, afresh. In this view of the matter, the impugned appellate judgment dated 17.3.2017 rendered by the appellate court concerned (Court of Addl. Sessions Judge-III, Mavelikkara) in Crl. Appeal No. 114/2014 will stand set aside. Resultantly, the abovesaid Crl. Appeal No. 114/2014 will stand restored to the file the abovesaid appellate Sessions Court concerned. 6. In this view of the matter, the impugned appellate judgment dated 17.3.2017 rendered by the appellate court concerned (Court of Addl. Sessions Judge-III, Mavelikkara) in Crl. Appeal No. 114/2014 will stand set aside. Resultantly, the abovesaid Crl. Appeal No. 114/2014 will stand restored to the file the abovesaid appellate Sessions Court concerned. 6. For consideration of the entire issues afresh, the learned counsel appearing for the appellant/accused and the learned counsel appearing for the respondent/complainant shall appear before the appellate Sessions Court at 11 a.m. on 28.10.2017, on which day, the court will fix up a date convenient to both sides and proceed with the final hearing of the matter. Having regard to the fact that the complaint has been initiated quite some time ago, it is ordered that the appellate court will take all endeavours and reasonable measures possible under the circumstances to ensure that the appeal is disposed of without much delay, preferably within 3-4 months from the date of appearance of the parties. The petitioner/appellant will produce a certified copy of this order before the appellate court for further necessary action. 7. With these observations and directions, the aforecaptioned Criminal Revision Petition stands finally disposed of.