Appeal against acquittal in Section 138 cheque dishonour case. High Court held lower appellate court misread evidence, set aside acquittal, and affirmed conviction and sentence.
Crl.A. No.336/2000 set aside; judgment in C.C. No.332/1999 confirmed.
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 K.THANKAPPAN
THURSDAY, THE 15TH MARCH 2007 / 24TH PHALGUNA 1928
CRL.A.No. 568 of 2002(C)
----------------------CRA.336/2000 of ADDL. SESSIONS COURT, ALAPPUZHA CC.332/1999 of JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARY
APPELLANT/RESPONDENT/COMPLAINANT
A.K.NARAYANA KAIMAL, GOVINDAVILASAM
VEEDU, THEKKEKARA P.O., MONKOMBU, ALAPPUZHA.
BY ADV. SRI.S.K.MURALEEDHARA KAIMAL
RESPONDENTS/APPELLANT/ACCUSED
BY PUBLIC PROSECUTOR, SRI.P.RAVEENDRA BABU
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/03/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.THANKAPPAN, J.
-------------------------------Crl.A. No.568 of 2002
Dated this the 15th day of March, 2007
JUDGMENT
This appeal is filed against the judgment of the lower appellate court in Crl. Appeal No.336/2000 on the file of Additional Sessions Judge, Alappuzha. By the impugned judgment, the appellate court set aside the judgment of the trial court in C.C. No. 332/1999 on the file of the Judicial Magistrate of First Class, Ramankary. The case of the appellant/complainant before the trial court was that 1st respondent/accused had borrowed an amount of Rs.70,000/- from the appellant and for repaying the above amount, the 1st respondent had issued Ext.P1 cheque dated 3-3-1999. When the cheque was presented for encashment, the same was dishonoured on the ground of insufficiency of fund to honour the cheque. After complying the statutory provisions on receipt of dishonour, the appellant/complainant filed the complaint before the trial court. On the side of the prosecution, the appellant himself was examined as PW1. PW2-the Bank Manager was also examined to prove the dishonour of the cheque, Exts.P1 to P6 were marked. On closing the evidence of the appellant, the 1st respondent was questioned under Section 313 Cr.P.C. On denying the allegation in the complaint the 1st respondent had stated that he had borrowed an amount of Rs.37,000/from the appellant and out of which, Rs.27,000/- had been already paid. Further, the 1st respondent had stated that the appellant had sent Ext.D1 and
Crl.A. No.568 of 2002 2
D2 letters to his son, who was working abroad, requesting to him to pay the amount borrowed by the 1st respondent. However, relying on the evidence adduced by the complainant the trial court found that the complainant/appellant succeeded in proving that the 1st respondent had received an amount of Rs.70,000/- and had issued Ext.P1 cheque which was dishonoured subsequently by the Bank and hence, the 1st respondent committed an offence under Section 138 of the Negotiable Instruments Act and he was convicted thereunder and sentenced to pay fine of Rs.30,000/- to the appellant/complainant and also to execute a bond for Rs.10,000/- under Section 4 of the Probation of Offenders Act for a period of one year. Trial court also ordered that fine amount shall be paid to the complainant as compensation. Against the above judgment of the trial court, 1st respondent filed the Crl. A. No.336/2000 before the lower appellate court and on hearing the appeal the lower appellate court set aside the judgment of the trial court and held that the appellant/complainant failed to prove transaction between the appellant and the 1st respondent which lead to the issuance of the Ext.P1 cheque. At the same time, the lower appellate court also found that the 1st respondent had only received an amount of Rs.37,000/- from the appellant out of which, Rs.27,000/- had been already paid. Against the appellate Court judgment, this appeal is filed .
Crl.A. No.568 of 2002 3
court are not based on the evidence and the lower appellate court misread the entire evidence adduced by the appellant.
Crl.A. No.568 of 2002 4
court in Crl. A. No.336/2000 is set aside confirming the judgment in C.C. No.332/1999 on the file of the Judicial Magistrate of First Class, Ramankary.
K.THANKAPPAN, JUDGE
jp
3 issues framed by the court
Whether the lower appellate court erred in setting aside the conviction for dishonour of cheque based on lack of evidence regarding financial transaction
Whether the alleged limitation of debt created any liability under Section 138 given the specific case of the appellant
Whether the finding that no transaction existed was based on evidence or merely strained inference
3 provisions across 3 enactments
A.K.NARAYANA KAIMAL
P.KRISHNAN NAIR
K.THANKAPPAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
