Dismissed

Vijayan v. State of Kerala and Another

Kerala HC6 Feb 2013CRL.A/798/2009

Case brief

AI extract

What is this about?

In an appeal against an acquittal for cheque dishonour, the High Court affirmed the lower court's finding that the complainant failed to prove the basic transaction underlying the cheque issuance. Consequently, the appeal was dismissed, upholding the accused's acquittal.

What did the court decide?

The criminal appeal is dismissed and the judgment of the court below upholding the acquittal is affirmed.

Vijayan Vs State of Kerala 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 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934

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CRL.A.No. 798 of 2009 (D)

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ST.218/2007 of J.M.F.C.-II, HARIPAD DATED 04-02-2007

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APPELLANT(S)/COMPLAINANT:

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VIJAYAN, S/O.GOVINDAN, KRISHNASREE, ERUVA PADINJARE MURI, PATHIYOOR VILLAGE.

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BY ADVS.SRI.R.REJI

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RESPONDENT(S)/ACCUSED & STATE:

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1. STATE OF KERALA AND ANOTHER

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REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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2. VIDHYADHARAN,S/O.NARAYANAN, PUTHANKATTIL HOUSE, MAHADEVIKADU MURI KARTHIKAPPILLY VILLAGE.

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BY ADV. SRI.K.SUBASH CHANDRA BOSE BY ADV. PUBLIC PROSECUTOR ADV.SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2013, 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.798 of 2009

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Dated this the 6^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

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punishable 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 4.2.2009 in S.T.No.218 of 2007 of the court of Judicial First Class Magistrate-II, Haripad, 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 borrowed a sum of `3,50,000/- from him on 17.6.2006 and towards the discharge of the said liability, the accused issued Ext.P1 cheque, which when presented for collection, returned dishonoured due to insufficiency of fund in the account maintained by the accused. Thereafter, according

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Crl.A.No.798 of 2009

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to the complainant, he was forced to sent a formal demand notice to the accused but the same returned as unclaimed

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and the accused has not repaid the amount. Hence, 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 produced Exts.P1 to P6. From the side of the defence, DW1 was examined and Exts.D1 and D2 were produced. The defence set up by the accused is to the effect that the cheque which was given as security connected with the chitty transaction conducted by the complainant is misused for filing the present complaint. The trial court on the basis of the available evidence and materials considered the case of the complainant and the defence, and found that the version of the complainant is unbelievable and the learned Magistrate opted to accept the case of the defence as more probable. Accordingly,

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Crl.A.No.798 of 2009

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

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I have heard Adv.Sri.R.Reji, learned counsel for the appellant and Adv.Sri.Subhash Chandra Bose, learned counsel for the respondent and I have perused the judgment of the trial court.

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Learned counsel for the appellant vehemently submitted that the transaction claimed by the appellant is proved through the evidence of Pws.1 and 2, but the learned Magistrate on misconception of facts proceeded to hold that the complainant has failed to prove his case and accordingly acquitted the accused.

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I have carefully considered the submissions of the counsel for the appellant.

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Though the complainant's allegation is that the accused borrowed a sum of `3,50,000/- on 17.6.2006 and issued the cheque in question, the only evidence is that of

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Crl.A.No.798 of 2009

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Pws.1 and 2 and Exts.P1 to P6. Exts.P1 to P6 are the documents connected with the cheque and its dishonour, and sending of notice. To prove the exact transaction, there is no documentary evidence. As I indicated earlier, the specific defence taken by the accused is to the effect that Ext.P1 cheque was actually given as a security connected with the chitty transaction conducted by the complainant. According to the complainant, the amount now covered by Ext.P1 cheque is a personal loan availed by the accused and the same was not given from the firm of the complainant. But the learned Magistrate has found that the complainant has no case that he has maintained any account regarding the payment of money to the accused and also did not obtain any document from the accused as security for the payment, so claimed to have made by him in favour of the accused. The complainant has also admitted that he has chitty transaction of `5 lakhs with the accused. The learned Magistrate, particularly in

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paragraph 10 of his judgment, has found that the case of the complainant is highly improbable, since the complainant is pleading ignorance about the date on which the accused has received the chitty amount from his firm and he has also pleaded ignorance about the amount which was due from the accused connected with the chitty transaction, when allegedly he gave 3,50,000/- to the accused. From the evidence of PW2, the learned Magistrate has found that an amount of more than 4 lakhs was due to the complainant when he allegedly gave `3,50,000/- to the accused. So, on the basis of that facts and circumstances, the learned Magistrate has held that no prudent man will lend such a huge amount to a person, who has committed default in payment of the chitty amount and further found that in such a circumstance, no amount will be paid without obtaining any document. According to me, the above findings of the court below appears to be correct and reasonable.

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Counsel for the appellant submitted that the learned Magistrate on a misconception of facts has held that there is a gap of four months from the date of withdrawal of 10 lakhs from the bank of the complainant and the alleged payment of 3,50,000/-. According to me, even if the said finding is incorrect, according to me, the same has no bearing with respect to the other findings of the court below. In this juncture it is also relevant to note that, when PW1 was examined initially, he has no case that the amount given to the accused on 17.6.2006 was out of the amount withdrawn from his bank account. But the above version of the complainant brought on record, after filing a petition under section 311 of Cr.P.C. and his further examination. The learned Magistrate has found that, such a course was adopted as an after thought. According to me, the complainant is a man who is conducting chitty business and therefore connected with that business or some other business, there is likely to

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withdraw amount from his bank. As correctly found by the learned Magistrate, there is nothing to show that the amount claimed to have given to the accused on 17.6.2006, is out of the amount allegedly withdrawn from the bank account of the complainant. In the present case, the accused has succeeded, as rightly held by the learned Magistrate that, in making out a probable case as to how Ext.P1 cheque reached in the hands of the complainant. So, with respect to the alleged transaction and the execution of the cheque, absolutely there is no legally acceptable evidence. Therefore, the learned Magistrate is correct in not extending the benefit under section 139 of the NI Act in favour of the complainant, particularly when the complainant miserably failed to prove the execution of the cheque.

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Thus, on an examination of the findings of the court below, particularly in the light of the evidence and materials referred to by the learned Magistrate in the

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impugned judgment, I find no reason to hold that the findings of the learned Magistrate are perverse or illegal. If that be so, even if an appeal is entertained any further, there is not even a remote scope to interfere with the finding and order of acquittal recorded in favour of the accused. Therefore, the appellant has miserably failed to make out any ground to substantiate his challenge against the findings of the court below.

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In the result, 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

Vijayan v. State of Kerala and Another

Case brief

What is this about?

What did the court decide?

Vijayan v. State of Kerala and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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