Dismissed

Parivarthana Kuries (P) Ltd. v. Anil Kumar and Another

Kerala HC20 Mar 2013CRL.A/29/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the criminal appeal filed by a company aggrieved by the acquittal of the accused in a cheque dishonour case. The court held that the trial court properly found the accused did not issue the specific cheque in question for the stated liability, and the appellate court could not interfere without compelling circumstances.

What did the court decide?

The criminal appeal was dismissed, reinforcing the order of acquittal under Section 255(1) Cr.P.C.

Parivarthana Kuries (P) Ltd. Vs Anil Kumar 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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WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934

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CRL.A.No. 29 of 2010 ( )

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CC.248/2007 of J.M.F.C.,IRINJALAKUDA, DATED 23-10-2009

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APPELLANT(S)/COMPLAINANT:

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PARIVARTHANA KURIES (P) LTD., IRINJALAKUDA VILLAGE & DESOM, IRINJALAKUDA P.O., REP. BY ITS CHAIRMAN SANKARANARAYANAN, AGED 59 S/O. KOLLARA KRISHNAN, POMANGALAM VILLAGE ARIPALAM DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADVS.SRI.G.SREEKUMAR (CHELUR)

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SRI.K.RAVI (PARIYARATH)

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RESPONDENT(S)/ACCUSED AND STATE:

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1. ANILKUMAR, AGED 46 YEARS, S/O. GOVINDA MENON, EREKKATH HOUSE, “SUKRUTHAM” SANTHI NAGAR, IRINJALAKUDA NORTH DIRECTOR I C L COMPANY, V.K.K BUILDING, MAIN ROAD IRINJALAKUDA.

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

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BY PUBLIC PROSECUTOR ADV. SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2013, 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.29 of 2010

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Dated this the 20^th day of March, 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

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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 23.10.2009, in C.C.No.248 of 2007 of the court of Additional Munsiff and Judicial First Class MagistrateIrinjalakuda, 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 had to give 2,12,170/- in connection with a kuri transaction to the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 22.7.2006 for an amount of 2,12,170/-, which when presented for encashment dishonoured due to insufficiency

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of fund in the account of the accused and the accused has not repaid the amount covered by the above dishonoured cheque in spite of the statutory notice served on him and 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, Pws.1 and 2 were examined from the side of the complainant and Ext.P1 to P72 documents were produced. From the side of the defence, though no witness was examined, Ext.D1 got marked. After considering the entire evidence and materials, the learned Magistrate is of the opinion that the defence taken by the accused seems to be more probable that he might have given blank cheques at the time when his wife bid her chitty in auction and when he stood as surety for the same. The trial court has also found that the evidence on record and the version of Pws.1 and 2 were not supported the case of the complainant to prove that Ext.P1 cheque was executed by the accused. Therefore, the presumption under section 139 of the NI Act cannot be

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drawn in favour of the complainant and accordingly found that the accused has not executed Ext.P1 cheque in discharge of his liability towards the complainant. Consequent to the above finding, the accused further found as not guilty and accordingly he is acquitted under section 255(1) of Cr.P.C. Challenging the above finding and the order of acquittal, the complainant preferred this appeal.

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I have heard Sreekumar G. learned counsel for the

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appellant and Adv.Binoy Ram learned counsel for the respondent.

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Learned counsel for the appellant vehemently submitted that the accused has admitted his signature in Ext.P1 cheque and therefore the complainant has established the execution of the cheque. It is also the submission of the learned counsel that the accused has also admitted that he stood as one of the sureties for his wife who bid the chitty conducted by the complainant and thus the accused has also admitted the transaction and the liability. So according to the learned counsel, the

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complainant has established the transaction and the liability connected with the amount which are due to the complainant and also proved the execution of the cheque. Therefore, the findings of the court below are incorrect, illegal and improper. According to the learned counsel for the appellant, on an erroneous consideration of facts and circumstances and the evidence involved and on misconception in law, the trial court has erroneously found that the cheque in question was not executed and issued by the complainant towards the discharge of any liability. According to the learned counsel, the finding of the learned Magistrate that the case put forward by the defence is probable, is unfounded as the same is not supported by any legally acceptable evidence.

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On the other hand, learned counsel for the respondent strenuously submitted that the findings of the court below are supported by evidence and materials on record and therefore the appellant has miserably failed to make out any case to interfere with the above findings and

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order of acquittal and therefore the appeal is liable to be dismissed.

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I have carefully considered the rival contentions advanced and I have perused the judgment of the trial court carefully and therefore the question arise out of such consideration is whether the appellant has succeeded in making out a prima facie case in support of its challenge against the judgment of the trial court and the finding of the learned Magistrate, or whether the appellant had succeeded in making out any exceptional or substantial reasons to interfere with the findings of the court below and the order of acquittal.

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I have already referred to the case of the complainant. The specific defence taken by the accused is that Ext.P1 cheque is one among 20 blank cheques obtained by the complainant when his wife succeeded in the auction and bid the chitty and while releasing the prized chitty amount. According to the accused, he had not executed the cheque as claimed by the complainant. It is

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the further case of the accused that he was one of the partners of the complainant firm and when a dispute arose among them, the complainant launched the present complaint by misusing one of such blank cheques obtained, connected with the chitty transaction between his wife and the complainant. The learned Magistrate considered the entire case in the above backdrops of the defence case. It is relevant to note that to substantiate the complainant's case, Pws.1 and 2 were examined among which PW1 is the Chairman of the complainant company. After appreciation of his evidence, particularly in paragraph 6, the learned Magistrate has found that when PW1 was cross examined, he deposed that the wife of the accused had kuri transaction with the company but he does not know from which installment onwards the default was committed and when did the kuri bid in auction by the wife of the accused. It is also found by the learned Magistrate that, according to PW1, the actual amount due from the wife of the accused as on 22.7.2006 can be seen from the statement. He had

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also deposed before the court that when kuri was bid in auction by the wife of the accused, the accused and one another person were sureties and the accused issued Ext.P1 cheque on 22.7.2006. The learned Magistrate has found that, those facts were not mentioned in the complaint. Towards the last of paragraph 8 of the judgment, the learned Magistrate has found that,

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“...... If the complainant had stated in the complaint that wife of the accused had a kuri transaction with the company and when she committed default in remitting the instalments after the receipt of kuri amount, accused issued Ext.P1 cheque on 22.7.2006 to discharge the liability of his wife as a surety then it could have been understood. A person can issue a cheque not only for discharging his liability to others but also it can be issued to discharge debt or liability of others. There is no wrong in issuing a cheque for discharging the liability of another. If that be so the complainant should have stated that fact in the complaint. Here in this case without making such averment in the complaint when Pws.1 and 2 were examined, they brought a new case before the Court that accused issued Ext.P1 cheque as a surety of his wife who had kuri transaction with the complainant.”

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From the above findings, it can be seen that there is no proper averment in the complaint, particularly with respect

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to the transaction and the liability and as to how the liability arose so as to issue Ext.P1 cheque. The claim of PW1, the Chairman of the company, that the accused was one of the sureties for his wife, was raised for the first time during the trial of the case. So the above evidence of PW1 was not in terms of any specific pleading. According to PW1, the accused brought a written cheque and put his signature in front of him and handed over it to the Manager of the company. Nothing deposed before the court as to under what circumstances the accused brought the filled up cheque and put the signature in his front. It is beyond dispute that the accused was one of the partners. If that be so, in the absence of any contra evidence, it cannot be said that the accused was unable to write or make endorsement in the cheque and for that reason, it is unbelievable that the accused brought a filled up cheque.

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It is also relevant to note that, according to PW1, the due amount was informed to the accused by the Manager. But there is no evidence on record to show that

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the accused was made known, before the date of the cheque, ie., on 27.7.2006 that an amount of 2,12,170/- was due. From the schedule of the judgment it appears that Ext.P23 is a notice alleged to have sent to the accused intimating the due as on 17.12.2005. No other documents produced to show that the complainant informed the accused that an amount of 2,12,170/- was due as on 27.7.2006. When PW2 was examined, she has also stated that the accused issued Ext.P1 cheque being the surety of his wife. But she has no claim that the accused was informed in advance about the due amount as on 22.7.2006. According to me, the lacuna in the evidence of Pws.1 and 2 and the inherent defect in the case of the complainant and his failure in not stating the exact details and taking proper averment in the complaint, probabilise the case of the accused that Ext.P1 is one among 20 blank cheques obtained by the complainant, when the accused wife prized the chitty. Moreover, it is relevant to note that as per the evidence of Pws.1 and 2, they are not aware as

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to who wrote the entries in Ext.P1 cheque. So regarding the entries in Ext.P1 cheque towards the execution of the cheque, there is no legally acceptable evidence. Mere putting of signature in Ext.P1 is not sufficient to hold that the drawer has executed the cheque. On the other hand, the said facts again probabilise the case of the defence that a signed blank cheque was obtained from him connected with the chitty transaction between the complainant and his wife. It is also relevant to note that the complainant has suppressed the fact that the accused is one of the partners or member of the Board of Directors of the company.

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Thus going by the judgment of the trial court it can be seen that the learned Magistrate, after having due consideration and appreciation of evidence on record, came into his own finding and those findings are supported by evidence and materials and for that reason, it cannot be said that such findings and the judgment of the trial court are perverse or illegal. The appellant has no case that the

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trial court has over looked any materials or evidence on record which are in favour of the complainant. So, according to me, the appellant has miserably failed to make out even a prima facie case in support of his challenge and against the findings of the court below and the order of acquittal.

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In a decision reported in Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430} the Honourable Apex Court has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. Thus, on examination of the facts and circumstances involved in the present case and in the light of the above dictum, according to me, the appellant has miserably failed in substantiating its challenge against the findings of the court below and the

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order of acquittal. Therefore, even if this appeal is entertained any further, there is little scope for interference with the findings of the court below and order of acquittal.

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Therefore, the appeal fails and 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

Parivarthana Kuries (P) Ltd. v. Anil Kumar and Another

Case brief

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Parivarthana Kuries (P) Ltd. v. Anil Kumar and Another

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