The Kerala High Court dismissed an appeal challenging an acquittal under Section 138 NI Act. The court held that the Magistrate's finding was plausible as the appellant had surrendered the vehicle registration and security cheque, negating the claim that funds were not received.
Criminal Appeal No. 602 of 2003 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 M.SASIDHARAN NAMBIAR
THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932
CRL.A.No. 602 of 2003(A)
-----------------------ST.1881/1999 of JUDL.MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR
APPELLANT/COMPLAINANT
MATHEW, S/O.AIPE, AMPATTU VEED, PARAVUTHARA MURI, N.PARUR.
BY ADV. SRI.A.MOHAMED MUSTAQUE
RESPONDENT/ ACCUSED & STATE
ADV. SRI.V.S.CHANDRASEKHARAN FOR R1 BY PUBLIC PROSECUTOR SRI. P.A.SALIM
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR, JUDGE
CRL.A.No. 602 of 2003(A)
J U D G M E N T
22ND JULY 2010
M.SASIDHARAN NAMBIAR, J.
Crl.A. No. 602 OF 2003
Dated this the 22nd day of July, 2010
J U D G M E N T
The complainant in S.T. No. 1881 of 1999 on the file of Judicial First Class Magistrate, North Paravur has filed this appeal challenging the order of acquittal. Appellant lodged the complaint taken cognizance for the offence under Section 139 of Negotiable Instruments Act by the learned Magistrate, contending that first respondent purchased a jeep from the appellant for a consideration of Rs.71,000/- and paid an advance of Rs.21,000/- and agreed to pay the balance of Rs.50,000/- within six months. When he failed to pay the amount, appellant filed a complaint before the police and first respondent was called to the police station. At the police station, first respondent admitted the liability and paid Rs.16,000/and towards the balance of Rs.34,000/- issued Ext.P1 cheque drawn on Kongorpilly Farmers Service Co-operative Bank, where he is maintaining an account. When the cheque was presented for encashment, it was dishonoured for want of sufficient funds. Appellant sent Ext.P3 notice, which was served on the first respondent evidenced by Ext.P4 acknowledgment card and first respondent did not pay the amount and instead sent Ext.P5 reply
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and thereby committed an offence under Section 138 of Negotiable Instruments Act.
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such circumstances, case of the first respondent that the dispute is with regard to the non-payment of the interest could be probable and in such circumstances, it is clear that Ext.P1 cheque was not issued towards discharge of an existing debt or liability.
that the learned Magistrate did not appreciate the evidence in the proper perspective and when issuance of the cheque and the signature therein is admitted by the first respondent, learned Magistrate should have found that Ext.P1 cheque was issued towards repayment of the loan to discharge the liability and in the light of the evidence, the order of acquittal is unsustainable.
Crl.A No.602/03
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to pay interest at the rate of Rs.3 per month. Ext.D1 also provides that appellant need hand over the registration book of the vehicle, as well as other vehicular documents, only on receipt of the balance amount of Rs.50,000/-. The agreement also shows that as security, first respondent had handed over cheque No.46411. It is the admitted case that, that cheque was subsequently handed over by the appellant to the respondent. As rightly found by the courts below, it is difficult to believe the version of PW1 that the balance amount was not received. If balance amount was not paid by the first respondent, in the normal course, appellant would not have returned the cheque leaf mentioned in Ext.D1, which was entrusted as security and would not have handed over the registration book of the vehicle as well as the other vehicular documents, when the agreement stipulates that he need return them only on receipt of the entire amount. It is on this background, the case of the appellant is to be appreciated.
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punitive rate, when there is no agreement or settlement to relinquish the interest, it cannot be for the balance principal amount only. If a cheque was issued from the police station, it cannot be for the balance of the principal amount payable under Ext.D1, but could be for the interest also. If that be so, the cheque would not have been for Rs.34,000/-.
The Criminal Appeal is dismissed.
M.SASIDHARAN NAMBIAR (JUDGE)
vps
Crl.A No.602/03
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2 issues framed by the court
Whether the High Court should interfere with the order of acquittal on the ground that the cheque was not issued for the discharge of a legal liability due to settlement of vehicles documents.
Whether the Magistrate correctly found that the balance cheque was not issued towards discharge of existing debt given the surrender of security documents.
1 provisions across 1 enactments
Matthew
Pareed Khan
The State of Kerala
M Sasidharan Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
