Appellant filed criminal appeal to set aside acquittal of accused in Section 138 NI Act case. High Court upheld trial court's decision due to lack of proof regarding loan transaction and credibility of witnesses.
Criminal appeal dismissed, order of acquittal affirmed.
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 V.GIRI
MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930
CRL.A.No. 76 of 2001()
---------------------{C.C.NO.332/1998 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA}
APPELLANT(S)/COMPLAINANT:
CHERIAN, S/O. MATHEW, KUZHINJALIL HOUSE, KARUKAPPILLY KARA, ARAKKULAM VILLAGE, THODUPUZHA TALUK.
BY ADV. SRI.C.J.JOY
RESPONDENT(S)/ACCUSED & STATE:
BY GOVERNMENT PLEADER SMT.PUSHPALATHA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.GIRI, J.
CR.A.No.76 of 2001 A
Dated this the 9th day of February, 2009 .
JUDGMENT
The complainant, in C.C.No.332/98 on the file of the Chief Judicial Magistrate, Thodupuzha, is the appellant herein, who has presented this Criminal Appeal, after obtaining leave from this court, to set aside the order of acquittal.
same day, he issued a cheque dated 3.4.1997 for the same amount; that the cheque was dishonoured for insufficiency of
CR.A.No.76 of 2001 A
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funds; that a notice was sent demanding payment and when
the amount was not repaid, the complaint was instituted.
considered by the courts below, was that the accused had no previous transaction with the complainant. The accused was employed as a driver in a Bus, owned by the complainant's cousin Mathew. At the time of appointment, the accused was asked to give a blank signed cheque. This was in 1993. That, later in 1997, on the premise that the accused had caused damage to the bus, the owner required the accused to pay an amount of Rs.40,000/- as damages. This was declined by the accused. Thereafter the signed blank cheque given by him was made use of through the complainant to file the complaint.
complainant caused the examination of PW.2, a person who was allegedly a witness to the transaction, when the accused borrowed the amount from the complainant.
CR.A.No.76 of 2001 A
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PWs.1 and 2. It was found that PW.2 is not a reliable
witness. He was not quite consistent as to how he was a witness to the transaction. That, originally he had testified that he saw the accused receiving the amount, signing the cheque from within the house; but he immediately a different version.
meticulously by the court below. The court below took note
of the fact that the relationship between the accused and the owner of Anjali bus, who happened to be the cousin of the complainant, was not, in any manner, disclosed in the complaint. The contention that the complainant had proceeded to give an interest free loan of Rs.70,000/- to the accused was also appreciated by the court below, but it declined to believe the said version, on an over all appreciation of the evidence in the case. The court below considered the version given by the complainant that he was
CR.A.No.76 of 2001 A
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a broker of timber and he used to meet the accused. The testimony given by PW.2 shows that the complainant was unemployed for, at least 3 years. In the circumstances, the court below came to the conclusion that the source of funds
and the probability of a transaction between the complainant and the accused had not been suitably proved. It is on an appreciation of the evidence that the court below proceeded to acquit the accused.
have gone through the judgment of the court below and I have considered the evidence. In my view, cogent reasons are given by the court below for disbelieving the evidence of Pws.1 and 2. The existence of a relationship between the complainant and the owner of the bus, that the cheque was extracted from the accused by the owner of the bus, and it was later made use of cannot be ruled out and the reasons given by the court below to accept the said version cannot be termed as untenable or improbable. The version of the
CR.A.No.76 of 2001 A
complainant in the notice is that it was to discharge a 'previous obligation' the cheque was issued. But the version before court is that the accused issued the cheque when he borrowed the amount. This is a significant lapse in the testimony of the complainant. How did he then proceed to lodge a complaint when the cheque was dishonoured for insufficiency of funds. Learned counsel for the appellant submits that the said part of the testimony of the accused may be treated as an inadvertent lapse. In my view, it is a possible reflection of the fact that the complainant did not have any transaction with the accused as such.
CR.A.No.76 of 2001 A
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I do not find any reason to interfere with the order
of acquittal. Accordingly, the appeal is dismissed.
Sd/-
(V.GIRI)
sk/
//true copy//
P.S. to Judge
2 issues framed by the court
Whether the High Court should interfere with the order of acquittal passed by the trial court in a cheque bounce case.
Whether the reasons given by the trial court for disbelieving the complainant's evidence are cogent.
1 provisions across 1 enactments
CHERIAN, S/O. MATHEW
P.K.SANTHOSH
STATE OF KERALA
V.GIRI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
