The High Court of Kerala dismissed the cogagain appeal filed by the complainant challenging the acquittal of the accused under Section 138 of the NIL Act. The court held that the complainant failed to substantiate the loan transaction and the cheque was issued in blank.
The criminal appeal was dismissed.
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.K.MOHANAN
TUESDAY, THE 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934
CRL.A.No. 2212 of 2004
[AGAINST THE ORDER/JUDGMENT IN ST.66/2004 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE FOR TRIAL OF MARAD CASES, KOZHIKODE DATED 16-08-2004]
APPELLANT(S)/COMPLAINANT:
M.K.RAMCHANDRA MENON, S/O.LATE V.K.SANKARA MENON, MANAKAVE, KOZHIKODE.
BY ADV. SRI.P.SANJAY
RESPONDENTS(S)/ACCUSED AND STATE:
R1 BY ADV. SRI.R.BINDU (SASTHAMANGALAM) R2 BY SR.PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-02-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.A.No. 2212 of 2004
Dated this the 12th day of February, 2013
J U D G M E N T
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 appellant since he is aggrieved by the judgment dated 16.82004 in S.T.No. 66 of 2004 of the court of the Special Judicial First Class Magistrate (Marad Cases), Kozhikode by which the learned Magistrate acquitted the accused under Section 255(1) of
the Cr.P.C.
the accused borrowed a sum of `3 lakhs on 11.9.2003 promising to return the amount within three months and issued Ext.P1 cheque towards the discharge of the said liability. When the above said cheque presented for encashment, the same was dishonoured due to want of sufficient fund in the account maintained by the accused and
it is the further case of the complainant that though a statutory notice
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was served on the accused, informing the dishonour of the said cheque and demanding the amount covered by the dishonoured cheque, no amount is paid and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act.
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acquitted under Section 255(1) of the Cr.P.C. Against the said
finding and order of acquittal, this appeal is filed.
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counsel for the petitioner as well as the respondents and I have
perused the judgment of the trial court and I have gone through the evidence and materials.
that the accused borrowed a sum of 3 lakhs on 11.9.2003 and on the same date, he issued Ext.P1 cheque dated 11.12.2003 for the said amount. Whereas the defence set up by the accused is to the effect that during the year 1997, there was transaction with the complainant and he obtained a sum of 25,000/- as loan and at that time, among
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other several documents, two blank signed cheques were obtained by the complainant and Ext.P1 is one of such two cheques misused for the purpose of the present case and according to the accused, there was no transaction as claimed by the complainant and Ext.P1 cheque is without any consideration. The trial court, on physical verification of Ext.P1 cheque, has found, especially on the basis of the admission of the complainant who is examined as PW1 that the body of the cheque is written in a different hand writing and ink than the signature in it and the complainant is not in a position to say who has filled the cheque. So the fact is that Ext.P1 cheque contained different hand writing and ink. In this respect, it is relevant to note that in the complaint, the complainant has no case that the accused has demanded loan amount on an earlier occasion and there was an understanding between the complainant and the accused to pay the amount on 11.9.2003 and bring the filled up cheque on that day. But, in order to circumvent the situation that Ext.P1 cheque contains
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different hand writing and ink, the version of the complainant is that the same was filled up and brought by the accused. The above version of the complainant cannot be swallowed without a pinch of salt, since in the complaint, the complainant has no such case as I indicated earlier. In this juncture, it is also relevant to note that though the complainant is a money lender and though he claimed to have lend the money to the tune of 3 lakhs, he obtained the cheque only for that amount and there is no explanation as to why he relinquished the interest for such a huge amount though he is a money lender. So, the case of the complainant by his own evidence and materials rendered as doubtful and unacceptable. It is in this background, we have to examine the defence version. According to the accused, there was a transaction during the year 1997 and he obtained a sum of 25,000/- from the complainant and at that time, he had handed over several documents including two signed blank cheques to the complainant and it is one of such blank cheques
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misused in the present case. The physical appearance of Ext.P1 cheque, as observed by the learned Magistrate, which is admitted by the complainant probabilise the case of the accused that Ext.P1 cheque was misused by the complainant by making entries according to the whims and fancies of the complainant. In this juncture, it is relevant to note that to prove the transaction, no other independent or documentary evidence are produced by the complainant. PW1 is the complainant himself. Ext.P1 is the cheque in question. Ext.P2 is the dishonour memo and Ext.P3 to P3(b) are the intimations connected with the transactions as per the provisions of Section 138 of the N.I.Act. Besides the above, no evidence is adduced from the part of the complainant to prove the transaction. In this juncture, it is relevant to note that CMP No.1220 of 2004 has been filed by the accused to call for account books from the complainant and though the learned Magistrate allowed the same, the complainant did not produce any document rather giving lame excuse. Being a licenced
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money lender, there would have been documents and books to show the money transaction But, in the present case, the complainant has not produced any document and his explanation is that he has stopped the business. But, the learned Magistrate has specifically found that during the examination of PW1, his case is that he was conducting the money lending business for the last seventy two years and he is maintaining all the accounts. So, the non-production of the relevant materials and documents available with the complainant persuaded the learned Magistrate to draw presumption under Section 114 of the Evidence Act against the complainant. So, to prove the transaction, there is no documentary or any independent evidence.
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to D9 documents are also to the said effect. Ext.D1 is dated 3.11.2003. But, it is relevant to note that as per the claim of the complainant, he had released an amount of 3 lakhs in favour of the accused on 11.9.2003, while amount is due to the complainant as evidenced by Ext.D1 letter dated 3.11.2003. So, it is unbelievable that while huge amounts are pending due from the accused to the complainant, the complainant again released 3 lakhs on 11.9.2003. Counsel for the appellant vehemently submitted that the case of the defence is false since they did not take any action against the complainant and no stop memo was issued to stop the payment covered by the cheques which are the subject matter of Exts.D1 to D9 letters. According to me, the said contentions require no serious consideration, since those defence evidences are let into to probabilise the case of the defence and to create doubt about the veracity of the case of the complainant. It is for the complainant to prove positively by adducing cogent and acceptable evidence that he
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had paid a sum of `3 lakhs to the accused and accused has executed Ext.P1 cheque towards the discharge of the said liability. But, in the present case, as I indicated earlier, there is no convincing evidence to that effect. From the documents produced by the defence, they succeeded in making out a probable case that Ext.P1 cheque was given to the complainant in its blank form connected with the earlier transaction with the complainant. It is also the contention of counsel for the appellant that the amounts covered by the cheque mentioned in Exts.D1 to D9 were paid by the accused. If that be so, it is for the complainant to show that the cheques covered by those defence documents were returned to the accused and to further prove that the amounts due were discharged by the accused. But there is no such evidence. Considering the entire evidence and materials on record, it can be seen that the complainant has miserably failed to substantiate its case whereas the defence has succeeded in making out a probable case.
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So, according to me, the appellant has miserably failed to
make out even a prima facie case in support of his challenge against the finding of the court below and the order of acquittal. For the reason stated earlier, the above finding cannot be treated as perverse or illegal so as to interfere with the order of acquittal in appeal. As the appellant has miserably failed to make out a prima facie case in support of his challenge against the impugned judgment, the appeal fails and the same is accordingly dismissed.
( V.K.MOHANAN ) Judge.
MBS/
2 issues framed by the court
Whether the trial court's acquittal of the accused for cheque dishonour under Section 138 of the Negotiable Instruments Act should be reversed on appeal due to alleged errors in evidence appreciation.
Whether the appellant has succeeded in showing that the judgment of the trial court was perverse or illegal.
2 provisions across 2 enactments
M.K.RAMCHANDRA MENON
T.SASEENDRAN
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
