Dismissed

Central Bank Ltd, v. Victor Jins

Kerala HC15 Mar 2013Crl.L.P./162/2013

Case brief

AI extract

What is this about?

In this criminal leave petition, the appellant sought to appeal against an acquittal in a Section 138 cheque dishonour case. The High Court noted the complainant failed to prove the execution of the cheque due to deficient evidence and the magistrate’s finding that the payee and drawee were the same person. Quashing the appeal as the leave petition was dismissed.

What did the court decide?

Petitioner’s application for leave to appeal was dismissed; the acquittal of the accused was upheld.

Central Bank Ltd, Vs Victor Jins — 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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FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934

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Crl.L.P..No. 162 of 2013

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AGAINST THE ORDER/JUDGMENT IN CC.1471/2010 of ADDL.C.J.M.(EO), ERNAKULAM DATED 17-11-2012

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PETITIONER/COMPLAINANT :

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CENTRAL BANK LTD,

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PERUMANOOR BRANCH, M.G.ROAD, KOCHI-16, REPRESENTED BY SENIOR REGIONAL MANAGER, REGIONAL OFFICE, ERNAKULAM.

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BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)

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RESPONDENTS/ACCUSED :

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VICTOR JINS, XII/770, ANCHUTHAIKKAL, PADAMUGHAL P.O. KAKKANADU WEST, KOCHI-30.

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

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R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15-03-2013, 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.162 of 2013

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Dated this the 15^th day of March, 2013

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ORDER

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The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks leave under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the order of the trial court by which the learned Magistrate in its complaint, acquitted the accused under Section 255(1) of the Cr.P.C.

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The complainant is a nationalised bank, namely Central Bank of India and a banking company incorporated under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Its head office is at Mumbai and the case of the complainant represented by its Branch Manager of Perumanoor Branch, M.G. Road, Ernakulam is that it released a loan in favour of the accused and towards the

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repayment of the amount the accused issued Ext.P1 cheque dated 06/03/2010 for an amount of .1,27,000/which when presented for encashment was dishonoured due to insufficiency of fund in the account maintained by the accused. It is the further case of the complainant that a statutory notice was issued, but no payment was made and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PW.1 was examined for and on behalf of the complainant and Exts.P1 to P4 documents produced. No evidence whatsoever adduced from the side of the defence. The learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam as per judgment dated 17/11/2012 in C.C.No.1471 of 2010 found that the complainant has miserably failed to prove that the accused had executed and issued Ext.P1 cheque towards an amount of 1,27,000/- out of the loan availed from the complainant Bank and that the said finding of the court below is in answer to the first point formulated by it to

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the effect that whether the accused has executed and issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt of `1,27,000/-. In answer to the second point that whether by the dishonour of Ext.P1 cheque and the non-payment of the amount within 15 days from the date of receipt of the statutory notice, the accused committed offence punishable under Section 138 of the N.I. Act, the court found that its finding on point No.2 follows that the dishonour of Ext.P1 cheque and the non-payment of the cheque amount within 15 days from the date of receipt of the statutory notice would not give raise penal liability under Section 138 of the N.I. Act. But, while answering the question under point No.2, the learned Magistrate has found that, in the present case the payee as well as the drawee is one and the same person and so no offence could attract under Section 138 of the N.I. Act. Thus, it is finally concluded that the accused had not committed the offence punishable under Section 138 of the N.I. Act and accordingly he is

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acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are sought to be challenged by filing an appeal for which leave of this Court is sought for.

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I have heard Sri.George Cherian, the learned counsel appearing for the petitioner and I have also perused the judgment of the trial court.

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The learned counsel for the petitioner vehemently submitted that the accused has admitted the execution of the cheque and therefore the trial court is wrong in its finding and acquitting the accused. According to the learned counsel, the inability of PW.1 to give correct evidence with respect to the transaction is not a ground to disbelieve the whole case of the complainant especially when PW.1 was not the officer at the time of the alleged transaction. It is also the submission of the learned counsel for the petitioner that the findings of the court below, that the offence under Section 138 of the N.I. Act is not attracted, as the payee

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and the drawee are one and the same person, is not legally sustainable. The learned counsel for the petitioner submitted that, if a chance is given to the petitioner/complainant for adducing further evidence, the complainant would be in a position to rectify the defect in the evidence by adducing better evidence. Hence, according to the counsel the petitioner is entitled to get the relief as sought for.

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I am unable to sustain the above contention especially in the given facts and circumstances of the case. The answer given by PW.1 during his crossexamination is recited in paragraph 6 of the judgment which sought to be impugned and the petitioner has no case that, whatever observed by the learned Magistrate about the evidence of PW.1, is incorrect or against the records. The learned Magistrate has found during the cross-examination of PW.1, that he continues to depose before the court he is totally unaware about the transaction of the accused as he was not the branch

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Manager at the time, when the above transaction took place. According to the learned Magistrate, PW.1 clearly stated during cross-examination that he is not having direct knowledge about the loan transaction mentioned in this case. To a specific question, by the learned Magistrate observed that, PW.1 has stated that he has no knowledge about the transaction and how much amount was advanced to the accused. He further stated that he does not know how much amount had been repaid by the accused. According to the learned Magistrate he had further deposed that he is totally unaware of the rate of interest and the amount which stood outstanding from the accused in connection with the above loan transaction. The learned Magistrate has specifically found that PW.1 did not deny the suggestive question put forward by the learned Magistrate that two blank signed cheques were obtained by the complainant bank from the accused as security at the time when the loan was advanced and the answer given by him is that he was not

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aware of it. The learned Magistrate has also found that, when the learned counsel for the defence invited the attention of the amount written in Ext.P1 cheque and the signature affixed in the cheque with different pens, PW.1 evaded from giving a specific answer by stating that he is not able to say anything authoritatively about it. So, on the basis of the above evidence and the answer given by PW.1, the learned Magistrate has observed that PW.1 is totally unaware of the nature of the loan transaction for the clearance of which the accused is said to have issued Ext.P1 cheque. So also it is found that the above witnesses have no direct knowledge regarding the execution and issuance of Ext.P1 cheque by the accused towards the repayment of an amount of `.1,27,000/-. I find no reason on the basis of the available materials to, which referred to by the learned Magistrate in the judgment sought to be challenged, find fault with the above observation and finding of the court below. In a bank transaction connected with the loan dealings,

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always the complainant need not prove its case by examining the officials, who were involved at the time of transaction itself. If they have produced such officials, it is well and good but, whenever a witness is examined from the side of the bank/the complainant, he must be able to depose before the court the facts and circumstances so as to attract the penal liability under Section 138 of the N.I. Act against the accused on the basis of the records. So, all the questions put forward during the cross-examination, can easily be answered on the basis of the facts and informations, collected from the records available in the bank. Suffice to say, in the present case no records connected with the loan transaction are also produced before the court below. What are produced are only Ext.P1 cheque and Ext.P2, the dishonour memo, Ext.P3 is the copy of the lawyer notice, Ext.P3(a) acknowledgment card and Ext.P4, the reply notice. The records pertaining to the loan transaction and the sanction of the same the statement of

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the account, ledger account, etc. are not produced. So, according to me, even if there is some discrepancies in the evidence of PW.1, the same could have been salvaged, in case the evidence in the form of documents were produced before the court. The suggestive question put to PW.1 about the signature and using of different pen shows that, except signature, all other entries could have been incorporated by somebody other than the person who put signature in Ext.P1 cheque. Even though the said facts brought out on record, the complainant did not take any steps to clarify the above facts or defect and no answer is sought during the re-examination as well. So to fix the liability upon the accused, absolutely there is no evidence particularly towards the loan transaction and the execution and thus above most important ingredients of Section 138 of the N.I. Act are not established. It is well settled that in order to avail the presumption under Sections 138 and 139 of the N.I. Act the execution of the cheque must be proved or the same must be admitted by

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the accused. From the above facts, it can be seen that the accused did not admit the execution and the complainant has miserably failed to prove the execution of the cheque and also the liability connected with Ext.P1 cheque. So the available oral evidences adduced by the complainant are not sufficient to substantiate the allegation against the accused and there is no documentary evidence as well.

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The learned counsel for the petitioner submitted that, if an opportunity is given to the complainant to adduce evidence, those defects can be rectified I am afraid of the above submission. Now we are only on the leave petition. During the consideration of the leave petition or at the time of the appeal, if the petitioner/ complainant are permitted to adduce evidence to cover up the inherent lacuna in the prosecution case, it will be resulted in miscarriage of the justice and there will be no finality for the prosecution. The petitioner has no case that the petitioner/ complainant were prevented

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from adducing appropriate evidence during the trial of the case. It is for the prosecution to produce cogent and available evidence whatsoever, during the trial of the case including the documents, which are relevant for the successful prosecution. Such document was not available with the complainant or the complainant was prevented from adducing the same in the court, we can understand the genuineness of such demand or its justification that only in appeal stage. Therefore, in the absence of any such ground, while considering the leave petition this Court is not bound to consider the same on merit, but to consider prayer in the petition on the basis of the available materials and the evidence on record. Thus it can be seen that the finding of the court below and the order of acquittal is absolutely correct and justified, since the same are supported by the available evidence and materials on record and therefore it cannot be said that the findings of the court below under point Nos.1 and 2 are perverse or illegal. Since I have found the finding of

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the court below under point Nos.1 and 2 against the petitioner, at this stage, according to me, this Court need to go into the question about the correctness of the finding of the court below as to whether offence punishable under Section 138 of the N.I. Act is attracted or not, for the reason that the payee and the drawee are one and the same person.

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In a recent decision of the Apex Court reported in Pudhu Raja & Another Vs. State represented by Inspector of Police [(2013) 1 SCC (Crl.) 430=2012 (11) SCC 196], the Hon'ble Apex Court has held that,

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“14. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of innocence, interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”

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So, on examination of the facts and circumstances involved in the case, in the light of the above dictum laid down by the Hon'ble Apex Court, it can be seen that, the findings of the court below or the judgment are perverse or illegal and the petitioner has miserably failed to make out any exceptional or substantial circumstances to interfere with the order of acquittal recorded in favour of the accused. Therefore, even if an appeal is entertained, there is little scope for interference with the above finding and the order of acquittal.

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Hence, the leave petition fails and accordingly, the same is dismissed.

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Sd/- V.K.MOHANAN, JUDGE

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skj

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True copy P.A. to Judge

Central Bank Ltd, v. Victor Jins

Case brief

What is this about?

What did the court decide?

Central Bank Ltd, v. Victor Jins

Case brief

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