Dismissed

M/S.Prabhu Lotteries v. Kunjumuhammed and Another

Kerala HC5 Feb 2013CRL.A/2471/2009

Case brief

AI extract

What is this about?

The High Court dismissed the criminal appeal against an order of acquittal under Section 138 NI Act. Upholding the trial court's finding, the Court held the complainant failed to conclusively prove the existence of the debt or the execution of the instrument, maintaining the acquittal of the accused.

What did the court decide?

Criminal Appeal dismissed; order of acquittal of the accused affirmed.

M/S.Prabhu Lotteries Vs Kunjumuhammed and Another — 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 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934

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CRL.A.No. 2471 of 2009 (D)

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ST.901/2008 of J.M.F.C., OTTAPPALAM, DATED 31-08-2009

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APPELLANT(S)/PETITIONER/COMPLAINANT::

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M/S.PRABHU LOTTERIES, OTTAPALAM TALUK, REP.BY ITS PROPRIETOR, P.HARIDAS, AGED 42 YEARS S/O.PARAMESWARAN, PRABHU MANDIRAM, NEAR POOZHIKKUNNU TEMPLE, OTTAPALAM, BY P/A HOLDER P.GOPALAKRISHNAN AGED 51 YEARS, S/O.LATE SANKARA

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BY ADV. SRI.A.DINESH RAO

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RESPONDENT(S)/ACCUSED AND STATE::

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1. KUNJUMUHAMMED, AGED 41 YEARS, S/O.MOIDU, KUNNAMPULLI VEED, CHUNANGAD AMSOM DESOM, OTTAPALAM TALUK.

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2. STATE OF KERALA, REPRESENTED BY

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PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.2471 of 2009

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Dated this the 5^th day of February, 2013.

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J U D G M E N T

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The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since it is aggrieved by the judgment dated 31.8.2009 in S.T.No.901 of 2008 of the court of Judicial First Class Magistrate-Ottapalam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

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The case of the complainant is that the accused has issued Ext.P2 cheque for `1,10,520/- towards the dues in connection with the purchase of lottery tickets during the period 3.4.2006 to 20.5.2007 and when the said cheque presented for encashment, dishonoured for want of sufficient fund in the account maintained by the accused

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Crl.A.No.2471 of 2009

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and the accused has not paid the amount covered by the dishonoured cheque, inspite of the statutory notice. Therefore, the accused has committed the offence punishable under section 138 of the NI Act.

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During the trial of the case, PW1-the power of attorney holder of the complainant was examined and Exts.P1 to P6 documents were produced and marked. No evidence either oral or documentary produced from the side of the defence. The trial court after considering the entire evidence and materials on record, came into a conclusion that the complainant did not satisfactorily proved that an amount of `1,10,520/- was actually due from the accused and that Ext.P2 cheque was duly executed by him towards the discharge of the liability, and consequently found that Ext.P2 cheque was not duly executed towards the discharge of a legally enforceable debt and that the ingredients necessary to constitute offence under section 138 of the NI Act are not seen attracted to this case. Consequently, the accused was found not guilty and accordingly he is

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Crl.A.No.2471 of 2009

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acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged in this appeal.

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I have heard Adv.Sri.Dinesh Rao, learned counsel for the appellant and I have perused the judgment of the trial court.

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Learned counsel for the appellant vehemently submitted that the transaction is admitted by the accused and his only dispute is that an amount of `28,000/- is due to the complainant, but he has no case that he had discharged that liability. It is also the submission of the counsel that, by examining PW1, the complainant has proved the allegation as well as the transaction and the execution of Ext.P2 cheque. But the trial court on an erroneous conclusion held that the complainant has not proved the essential ingredients of section 138 of the NI Act. Therefore, the trial court's findings are liable to be interfered with and the order of acquittal is liable to be set aside.

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Crl.A.No.2471 of 2009

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I have carefully considered the arguments advanced by the counsel for the appellant.

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In the light of the arguments advanced by the counsel for the appellant and in the light of the findings of the court below on the basis of the evidence and materials referred to in the impugned judgment, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of its challenge raised against the findings of the court below and the order of acquittal recorded in favour of the accused. The trial court, after due consideration of the evidence and materials on record and considering the case of the complainant as well as the defence, has found that while giving lottery tickets to the agents, the complainant is getting security amount and almost in all cases blank cheques are being obtained. In the present case, according to PW1, the accused executed and issued Ext.P2 cheque towards the discharge of the liability that fixed in pursuance to a conciliation between the complainant and the accused.

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Crl.A.No.2471 of 2009

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Thus, the accused is indebted to the complainant to pay a sum of 1,10,520/- and towards the discharge of that liability, the accused issued Ext.P2 cheque. Whereas, the case of the accused is that the complainant has obtained a blank signed cheque from him, while he received the lottery tickets from the complainant and out of that transaction, only an amount of 28,000/- is due to the complainant and Ext.P2 cheque was not executed by him and gave it to the complainant as claimed by him. So, the primary issue to be considered is whether the complainant has succeeded in proving the liability as claimed by him. To prove the above claim of the complainant, the complainant has examined PW1 who is the power of attorney holder of the complainant. When PW1 was examined, he had also admitted that accused has not made any cash deposit at the time of taking agency from the complainant. According to him, the usual practice between the complainant and the sub agent is that the accounts are settled towards the lottery purchase by the end of each week and in the present

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Crl.A.No.2471 of 2009

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case, the accused has raised some dispute regarding the actual amount due towards the value of lottery tickets and accordingly, the complainant invited the accused for a settlement and thus, the accused has issued Ext.P2 cheque towards the discharge of the amount, that was arrived during the settlement. Though the complainant has produced Ext.P6 register showing the accounts of the accused, the learned Magistrate has found that PW1 has absolutely no direct knowledge regarding the amount that was mediated between the complainant and the accused and PW1 has also not aware of the entries in Ext.P6. The learned Magistrate has found that the entires in Ext.P6 was made by one Devan. So, the learned Magistrate found that the contents of Ext.P6 register are not properly proved. So, regarding the exact liability of the accused connected with the transaction, absolutely there is no reliable and acceptable evidence.

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It is true, PW1-the power of attorney holder when examined, deposed that the accused volunteered to execute

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Crl.A.No.2471 of 2009

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Ext.P2 cheque in pursuance to the settlement arrived between the complainant and the accused. But PW1 has stated that he was not in a position to explain clearly the original amount that was allegedly due from the accused or the amount that was settled after mediation. So regarding the liability now figured and claimed by the complainant against the accused, absolutely there is no evidence. Though PW1 has deposed that the accused executed Ext.P2 cheque in his presence, to prove those aspects, except the evidence of PW1, there is no other independent or reliable evidence. In this juncture it is relevant to note that, it is beyond dispute that Ext.P2 is a type written cheque. No explanation is forthcoming as to under what circumstances such a course was adopted. It is in this juncture, the defence pleaded by the accused become relevant. According to him, he never executed and issued the cheque as claimed by the complainant, but according to him, Ext.P2 is the cheque which was handed over to the complainant in a blank form when he was appointed as an agent of the

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Crl.A.No.2471 of 2009

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complainant. So, as rightly pointed out by the learned Magistrate, regarding the transaction, there are suspicious circumstances and the complainant has not explained the same, and failed to remove such suspicion. In this juncture it is also pertinent to note that, PW1 has admitted that generally while making appointment persons as agents of the complainant, security cheques were obtained, but in the case of the accused, PW1 has no case that any kind of security has been obtained or any cash received from the accused. So, there is no explanation from the part of the complainant in not adopting the general approach and obtain security, in the case of the accused and the said fact coupled with the fact that Ext.P2 is a type written cheque are sufficient to generate serious doubt against the case of the complainant. So, according to me, the trial court is fully justified in its finding that the complainant has miserably failed to prove the liability as claimed by him and also about the failure of the complainant in proving the execution of Ext.P2 cheque. Going by the reasons given by

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the learned Magistrate in support of the above finding, it appears to me that, the reasons are quite sound and legal, which are supported by evidence and materials on record. Therefore, it cannot be said that the findings of the court below are perverse or illegal, so as to interfere in an appeal against an order of acquittal. Therefore, even if an appeal is entertained any further, there is little scope for any interference with the findings of the court below and the order of acquittal. Therefore, according to me, the appellant has miserably failed to make out a prima facie case in support of its challenge against the impugned judgment of the trial court.

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In the result, the appeal fails and accordingly, it is dismissed.

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Sd/-

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V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

M/S.Prabhu Lotteries v. Kunjumuhammed and Another

Case brief

What is this about?

What did the court decide?

M/S.Prabhu Lotteries v. Kunjumuhammed and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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