Dismissed

Mathew K.John v. State of Kerala

Kerala HC12 Feb 2013CRL.A/2550/2009

Case brief

AI extract

What is this about?

In this criminal appeal challenging an acquittal under the Negotiable Instruments Act, the High Court held that the appellant failed to make out a prima facie case to interfere. The court upheld the trial court's finding that the alleged transaction lacked consideration.

What did the court decide?

The criminal appeal was dismissed as devoid of merit; the order of acquittal under Section 255(1) Cr.P.C. remains.

Mathew K.John Vs State of Kerala — 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 12TH DAY OF FEBRUARY 2013/23RD MAGHA 1934

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CRL.A.No. 2550 of 2009

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[AGAINST THE ORDER/JUDGMENT IN CC.91/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHENGANNUR DATED 22-04-2009]

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APPELLANT(S)/PETITIONER/COMPLAINANT:

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MATHEW K.JOHN, S/O.T.J.YOHANNAN, KALARICKATHARAYIL HOUSE, ERAMATHOOR MURI THRIPPERUNTHURA VILLAGE.

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BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP

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SMT.SURYA SASI

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RESPONDENTS(S)/STATE AND ACCUSED:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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LAILA SALIM,SANOPHAR MANIZIL, VISAVARSERIKKARA MURI, KURATTISSERI VILLAGE.

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12-02-2013, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No. 2550 of 2009

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Dated this the 12^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 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 22.4.2009 in C.C.No. 91 of 2007 of the court of Judicial First Class Magistrate, Chengannur 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, who is a lady, approached the complainant and borrowed 2,50,000/- for her business purpose and when he demanded back the amount, the accused issued Ext.P1 cheque for an amount of 2,50,000/-, which when presented for encashment, dishonoured due to insufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of statutory notice and therefore, the accused has committed the offence punishable under Section 138 of

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Crl.A.No. 2550 of 2009

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the N.I.Act. During the trial of the case, from the side of the complainant, he himself mounted to the box and got examined as PW1 and produced Exts.P1 to P5. From the side of the defence, Dws.1 and 2 were examined. After considering the entire evidence and materials, the trial court has finally found that the complainant has not succeeded in proving the execution of Ext.P1 cheque and on the other hand, from the evidence of Dws.1 and 2, the trial court found that the defence case is more probable than the complainant's case and accordingly, found that Ext.P1 was not supported by any consideration. On the basis of the above finding, the trial court has held that the accused is not guilty and accordingly, she is 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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I have heard learned counsel for the appellant.

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Learned counsel for the appellant vehemently submitted

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that the evidence adduced from the side of the defence is inconsistent

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Crl.A.No. 2550 of 2009

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and contradicting each other and therefore the trial court is wrong in accepting the case of the defence and acquitting the accused.

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I have carefully considered the contention of counsel for the appellant and I have perused the judgment of the trial court.

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In the light of the facts and circumstances involved in the case and in view of the finding of the court below and having considered the contentions of counsel for the appellant, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of his challenge against the judgment of the trial court. Having regard to the facts and circumstances involved in the case and especially, in the light of the finding of the court below, it is pertinent to note that the alleged transaction is between the complainant and the accused, who is a lady and the amount involved is `2,50,000/-. To prove the transaction, there is no documentary evidence or any other independent evidence, except the interested version of PW1/the

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Crl.A.No. 2550 of 2009

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complainant. As correctly submitted by the counsel for the appellant, in the complaint there is no datas or averments which led to the transaction and the issuance of the cheque. Counsel for the appellant submitted that the accused borrowed the amount for the purpose of the business conducted by her husband. There is no answer to the question as to why the husband of the accused has not approached the complainant and obtained the loan from the complainant. It is relevant to note that the amount alleged to have borrowed from the accused is `2,50,000/- and the cheque amount is also for the same amount. There is no explanation or evidence for giving such a huge amount and also the circumstances which led to the giving of such huge amount without any interest or without any document. According to me, in the absence of proper pleading and evidence to cater the questions from the part of the complainant, the defence set up by the accused becomes relevant. In the present case, it is relevant to note that the accused is not denying the signature

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Crl.A.No. 2550 of 2009

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contained in Ext.P1 cheque, but her version is that she had obtained a sum of `10,000/- from the complainant through one Abdulla and thereafter, she had repaid the entire amount through Abdulla and at the time of receiving the said amount, she had handed over a blank signed cheque to PW1 through the said Abdullah and it is the said cheque misused by the complainant for the purpose of the present case. In this juncture, it is relevant to note that in paragraph 8 of the impugned judgment, the learned Magistrate has observed that during the cross-examination, DW1 has stated that the accused had not received money from PW1. It is also found by the learned Magistrate that PW1 has also stated that the accused has not received any amount from him by handing over Ext.P1 to him. It is on the basis of the above evidence of DW1 as well as the evidence of PW1, the trial court has observed that it created doubt regarding the passing of consideration for Ext.P1 cheque in the present case. The appellant has no case that the trial court has failed to consider any evidence or

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Crl.A.No. 2550 of 2009

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materials, which are in favour of the complainant and against the accused. The appellant has also not denied the finding and the observation of the learned magistrate about the evidence of DW1 and PW1, which I indicated above. But, from the discussion that contained in paragraph 8 of the judgment of the trial court, it can be seen that even according to PW1/the complainant, he has no case that the accused has directly received any amount from him. If that be so, according to me, the trial court is fully justified in its finding. The said finding cannot be termed as perverse or illegal so as to interfere with the same in appeal. Therefore, according to me, even if any appeal is entertained any further, there is not even a remote scope to interfere with such finding. Therefore, according to me, the appellant has miserably failed to make out a prima facie case in support of his challenge against the finding of the court below and the order of acquittal.

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Crl.A.No. 2550 of 2009

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In the result, the appeal is devoid of any merit and

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accordingly, the same is dismissed.

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( V.K.MOHANAN ) Judge.

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MBS/

Mathew K.John v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mathew K.John v. State of Kerala

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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