Dismissed

A. Vilasini v. T.P. Ramlath

Kerala HC19 Feb 2013Crl.L.P./110/2013

Case brief

AI extract

What is this about?

In a criminal leave petition for an appeal under section 378(4) Cr.P.C. against an acquittal for cheque dishonour, the High Court of Kerala, dismissing the petition, held that the lower court's refusal to extend the presumption under section 139 NI Act was supported by cogent reasons and evidence regarding the cheque's details and the complainant's financial capacity.

What did the court decide?

The criminal leave petition was dismissed with no merit in the petitioner's case.

A. Vilasini Vs T.P. Ramlath — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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TUESDAY, THE 19TH DAY OF FEBRUARY 2013/30TH MAGHA 1934

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Crl.L.P..No. 110 of 2013 ()

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ST.3201/2010 of J.M.F.C.-II, KANNUR, DATED 15.11.2012

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PETITIONER/COMPLAINANT:

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A. VILASINI, AGED 47 YEARS

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D/O MAMMU, ARAMBAN HOUSE, KATTAMPALLY P.O. CHIRAKKAL, KANNUR.

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BY ADV. SRI.M.RAMESH CHANDER (SR.)

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RESPONDENTS/ACCUSED/STATE:

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1. T.P. RAMLATH,, AGED 50 YEARS W/O MUSTHAFA, 491, THOTTON, NEAR GERMAN MOTORS 5, CHIRAKKAL, CHIRAKKAL GRAMA PANCHAAYTH, KANNUR, PIN:670 011.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.

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BY PUBLIC PROSECUTOR ADV.SMT.V.H.JASMINE

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 19-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.L.P.No.110 of 2013

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Dated this the 19^th day of February, 2013.

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O R D E R

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The complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 15.11.2012 in S.T.No.3201 of 2010 of the court of the Judicial First Class Magistrate-II, Kannur, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.

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The case of the complainant is that the accused borrowed a sum of `1 lakh from her and towards the discharge of the said liability, the accused issued Ext.P1 cheque, which when presented for encashment,

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dishonoured due to insufficiency of funds in the account maintained by the accused and the accused has not repaid

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Crl.L.P.No.110 of 2013

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the amount inspite of statutory notice served on her. Therefore, according to the complainant, the accused has committed an offence punishable under section 138 of the NI Act.

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During the trial of the case, the complainant herself was examined as PW1 and produced Exts.P1 to P5 documents. No evidence either oral or documentary produced from the side of the defence.

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The trial court after considering the entire evidence and materials has found that the complainant has failed to prove that Ext.P1 cheque was issued to discharge a legally enforceable debt or liability and also failed to prove the execution of the cheque. Thus it is finally found that the accused is not guilty for the offence under section 138 of the NI Act and accordingly she is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which leave of this Court is sought for.

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Crl.L.P.No.110 of 2013

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I have heard Adv.Sri.M.Ramesh Chander learned counsel for the petitioner.

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Learned counsel for the petitioner vehemently submitted that Ext.P1 cheque contains the signature of the accused which is not disputed and the accused has no explanation as to how Ext.P1 cheque, which pertains to the account maintained by the accused, reached in the hands of the complainant. Thus according to the counsel, the court below has miserably failed to consider the above facts and erroneously found that the complainant has not proved the transaction and execution of the cheque. Therefore, the counsel submits that if an appeal is entertained, there is every chance for an interference.

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I have carefully considered the submissions made by the counsel for the petitioner and I have gone through the judgment of the trial court.

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The trial court, while considering the evidence of the complainant, it is specifically found that the defence has

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Crl.L.P.No.110 of 2013

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disputed the financial capacity of the complainant to pay a sum of 1 lakh and it is further found that PW1 has admitted that she is an ordinary labourer in a chicken stall and there is no explanation or evidence as to how PW1 has arranged 1 lakh for lending the same to the accused and no evidence is adduced to prove the financial capacity of the complainant. So, after having considered the above facts connected with the financial capacity of the complainant, the trial court concluded that there is every possibility to doubt the capacity of the complainant to lend such a huge amount to the accused.

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In paragraph 10 of the judgment, the trial court has discussed as to how far the complainant has succeeded in proving the execution and issuance of the cheque. The learned Magistrate, after perusal of Ext.P1 cheque, has found that the cheque is a self cheque and the name of payee as well as the amount are written in English. The date, payee's name and the amount are written in blue ink.

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Crl.L.P.No.110 of 2013

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But the accused signature and the name is written in black ink. It is also found by the learned Magistrate that behind the cheque, the complainant is seen signed in blue ink. The learned Magistrate has also found that the accused does not write in English as she has no much education. So in the above backdrops, the learned Magistrate has found that since the accused does not know English, it is evident that the cheque is filled by some other person. It is also found by the learned Magistrate that there is no explanation from PW1 that who filled the cheque. It is relevant to note that during the examination of PW1, the court put a question particularly during her cross examination and in answer to the same, PW1 has stated that she does not know how to write and read and she had studied up to second standard only. So the learned Magistrate has found that under the above circumstances, it was for the complainant to prove that who filled the cheque and who has written the details in the cheque. It is also found that during the examination

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Crl.L.P.No.110 of 2013

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of PW1, she contended that the entries of cheque was written and signed in her presence, but subsequently she had stated that she cannot say who and from where the amount was added and name has written. It is on the basis of the above fact and circumstances involved in the case, the learned Magistrate has found that the complainant failed in proving the transaction and execution of the cheque and therefore the learned Magistrate was not prepared to extend the presumption under section 139 of the NI Act in favour of the complainant. So going by the judgment of the trial court, it can be seen that the learned Magistrate, after an elaborate consideration and appreciation of evidence and after assigning cogent and satisfactory reasons, has refused to believe the case of the complainant regarding the transaction and the execution of Ext.P1 cheque. According to me, the above finding of the court below cannot be termed as perverse or illegal, since those findings are supported by reasons which are further

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Crl.L.P.No.110 of 2013

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supported by evidence and materials. If that be so, even if an appeal is entertained, there is little scope to interfere

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with the above findings and the order of acquittal.

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In the result, there is no merit in this petition and

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accordingly the same is dismissed.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

A. Vilasini v. T.P. Ramlath

Case brief

What is this about?

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A. Vilasini v. T.P. Ramlath

Case brief

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