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TMI Blog2017 (7) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the burden is quite heavy on the complainant to prove that he had the requisite source of funds for making borrowal of the money for the transaction in question. PW1 has claimed in her deposition that there was written agreement between the complainant s husband and the accused which would show the alleged liability of Rs.15,00,000/- owed by the accused to her husband and that a photocopy of the said alleged sale agreement is available. But, the complainant has not produced either the original or photocopy of any such agreement. PW1 has also deposed that apart from her, there were two other independent witnesses who had seen the tendering of the three cheques by the accused to the complainant. But, none of such persons have been examined as witness in the instant case to prove such a fact. These aspects could also raise a serious suspicion in the mind of any criminal court about the very believability and genuineness of the case set up by the complainant - Except making such claims, no convincing evidence whatsoever has been let in in this case to prove even remotely any such factual aspects. Therefore, in the light of all these aspects, the irresistible conclusion that could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantive sentence has been reduced to imprisonment till the rising of the court. The fine amount of Rs.5,00,000/- and the default sentence clause of simple imprisonment for six months has also been confirmed, etc. 3. In Crl.R.P.No.638 of 2017, the petitioner/accused has been convicted for the abovesaid offence as per the judgment dated 22.3.2014 of the Judicial First Class Magistrate Court-II, Perintalmanna, in S.T.No.1038 of 2012. He has also been sentenced to undergo simple imprisonment for three months and to pay fine of Rs.5,00,000/- with the default sentence clause of simple imprisonment for six months and direction to disburse the fine amount as compensation. The appellate court as per the judgment rendered on 22.2.2017 in Crl.Appeal No.125 of 2014, has confirmed the abovesaid conviction, but has reduced the substantive sentence to imprisonment till the rising of the court and to pay fine of Rs.5,00,000/- with the default sentence clause of six months simple imprisonment, etc. 4. In Crl.R.P.No.639 of 2017, the petitioner has been convicted for the offence under Section 138 of the Negotiable Instruments Act as per the judgment dated 11.3.2014 of the Judicial First Clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three cheques have been allegedly handed over by the accused to the complainant, etc. are conspicuously omitted to mention in the statutory demand notice, complaint as well as in the proof affidavit. Therefore, it is stated that the case of the complainant is liable to be thrown out and the accused is entitled for the benefit of acquittal in view of the legal principles laid down by the decisions of this Court in K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233. (ii) The second argument raised by the petitioner is that no material evidence whatsoever has been let in by the complainant that her husband had source of funds to raise such a huge amount of Rs.15,00,000/- at the relevant time to be advanced to the accused which led to the liability. It is, therefore, argued on the basis of the decision of the Apex Court that the complainant is thus disentitled from drawing the benefit of the statutory presumption under Section 118(a) and Section 139 of the Negotiable Instruments Act. (iii) The third contention raised by the petitioner/accused is that PW1/complainant has deposed in evidence that there was an agreement between her husband and the accused which led to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a criminal court should be closed to such fortune seekers. Further 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 to a fair trial, which is a constitutional right guaranteed under Article 21 of the Constitution of India. An accused in a complaint case filed under Section 142 of the Negotiable Instruments Act is entitled to know before the trial the particulars of the accusation against him and suppression of such material particulars in the complaint alone is sufficient to order the acquittal of the accused. It will be profitable to refer paragraphs 18 and 20 of K.K.Divakaran v. State of Kerala reported in 2016 (4) KLT 233, which read as follows : 18. Before she filed the complaint the second respondent sent Exhibit P4 statutory notice to the revision petitioner informing him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant s husband had necessary source of funds at the relevant time to raise such a huge amount of Rs.15,00,000/- for being advanced to the accused. The Apex Court in the judgment in John K.Abraham v. Simon C.Abraham reported in (2014 (2) SCC 236) has held that in order to enable the complainant to draw the benefit of statutory presumption envisaged under Section 118 (a) and Section 139 of the Negotiable Instruments Act, the burden is quite heavy on the complainant to prove that he had the requisite source of funds for making borrowal of the money for the transaction in question. The legal position in this regard has been reiterated by the Apex Court in K.Subramani v. K.Damodara Naidu reported in (2015) 1 SCC 99. It is only to be held that the complainant cannot succeed to claim the benefit of statutory presumption under Section 118(a) and Section 139 of the N.I. Act in the facts and circumstances of this case. Moreover, in the absence of crucial evidentiary aspects, it will be highly unsafe for any criminal court to convict an accused from the given facts of the case. 11. PW1 has claimed in her deposition that there was written agreement between the complainant s husba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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