Allowed

Davis.K.a. v. Mary Jose & State

Kerala HC3 Aug 2016CRL.A/155/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed two criminal appeals challenging acquittals in cheque bounce cases. The court reversed the acquittal after finding substantial inconsistencies in the accused's differing versions during various procedural stages. It held that the evidence proved the offenses under the Negotiable Instruments Act and convicted the accused.

What did the court decide?

The accused was convicted under Section 138 of the Negotiable Instruments Act in both cases and sentenced to imprisonment until the rising of the court, with compensation in lieu of further imprisonme

Davis.K.a. Vs Mary Jose & State — Cheque Dishonour | Kerala HC (2016)

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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 B.KEMAL PASHA

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WEDNESDAY, THE 3RD DAY OF AUGUST 2016/12TH SRAVANA, 1938

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CRL.A.No. 155 of 2009 ( )

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ST.NO. 90/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -II, ALUVA

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APPELLANT/COMPLAINANT :

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DAVIS.K.A., S/O.ANTHONY, KALLELY HOUSE, ELAVOOR P.O., ANGAMALY.

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BY ADVS.SRI.GEO PAUL SRI.SANU MATHEW SRI.M.B.SANDEEP

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RESPONDENT(S)/ACCUSED & STATE :

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1. MRS. MARY JOSE, MALIYEKKAL HOUSE, ASHTAMICHIRA P.O., KOTTAVATHIL, THRISSUR DISTRICT.

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

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R1 BY ADVS. SRI.VINEETH KURIAKOSE SMT.SREEJA SOHAN.K. R2 BY PUBLIC PROSECUTOR SMT. MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2016, ALONG WITH CRL.A.NO. 586 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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B. KEMAL PASHA, J

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===================== Crl.Appeal Nos.155 & 586 of 2009

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=====================

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Dated this the 3^rd day of August, 2016

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J U D G M E N T

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Challenging the judgment of acquittal passed

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by the Judicial First Class Magistrate’s Court-II, Aluva in S.T.No.90 of 2005 and S.T.No.91 of 2005, the complainant before the court below has come up in appeals. Both the cases before the court below were jointly tried and the same were disposed of through common judgment dated 21.10.2008.

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The cases before the court below are the result of two private complaints filed by the appellant in these appeals as complainant, against the 1^st respondent in these appeals as accused, alleging the offence punishable under Section 138 of the Negotiable Instruments Act.

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The case of the complainant is that an amount

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Crl.A.Nos.155 & 586 of 2009 2

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of 1,00,000/- was due to the complainant from the accused, in discharge of which, the accused had issued two cheques, one for 60,000/- and the other one for `40,000/- dated 04.11.2004 to the complainant. The said cheques, on presentation, returned dishonoured for insufficiency of funds in the account of the accused. On getting back the cheques as dishonoured, the complainant caused to issue Exhibits-P7 and P8 demand notices, as contemplated under Section 138(b) of the Negotiable Instruments Act. The accused having received the notices, caused to issue Exhibit-P13 reply notice through her lawyer. No amount was paid and hence these complaints.

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On the side of the complainant, PW-1 was examined and Exhibits-P1 to P13 were marked. On the side of the accused, DW-1 and DW-2 were examined. The court below found the accused not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, and acquitted her

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Crl.A.Nos.155 & 586 of 2009

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under Section 255(1) Cr.P.C. through the impugned common judgment.

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Heard the learned counsel for the appellant and the learned counsel for the 1^st respondent.

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The learned counsel for the appellant has argued that the court below has passed the impugned common judgment of acquittal without any valid reason. The court below has failed to take note of the repeated inconsistencies in the stand and contentions taken by the accused before the court below. It is also argued that the court below has failed to take note of the availability of the presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act to the complainant.

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Per contra, the learned counsel for the 1^st respondent has argued that the court below is perfectly justified in disbelieving DW-2 as well as PW-

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It is argued that there is no valid ground to interfere with the impugned common judgment.

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Crl.A.Nos.155 & 586 of 2009 4

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The learned counsel for the appellant has pointed out that the stand taken by the accused in Exhibit-P13 reply notice is that she did not know the complainant and she had no acquaintance with the complainant. The contention taken in Exhibit-P13 is that the said two cheques of the accused 'somehow happened to reach the complainant'. It has not been mentioned in Exhibit-P13 as to how the said two cheques from the account of the accused could reach the complainant. At that stage, the accused had no explanation regarding the same. Further, in ExhibitP13, the accused had no contention that those cheque leaves were issued to some other person and the same were handed over by such person to the complainant.

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Strangely enough, in the cross-examination of PW-1, the stand taken by the accused was that she had some transactions with one Jose, who is the younger brother of the father-in-law of PW-1 and the

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Crl.A.Nos.155 & 586 of 2009 5

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said Jose had filed a cheque case against the accused before the court at Chalakkudy. During the crossexamination of PW-1 also, the accused had no contention that Exhibits-P1 and P2 cheques were issued by her to the said Jose and that the said Jose had handed over those cheques to the complainant. Even a suggestion to that effect was not put to PW-1 in cross-examination.

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Strangely enough, at the stage of her examination under Section 313 Cr.P.C., the accused has taken a strange contention. The accused specifically contended as follows:

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“I have not borrowed money from Devis. I had borrowed an amount of 50,000/- from Jose, who is the father’s younger brother of the complainant, in the year 2003. Two cheque leaves were given. I had affixed my signatures only in those two cheque leaves. By making use of one of such cheque leaves, Jose filed a case before Chalakkudy court for 4,00,000/-. Exhibit-P1 is the 2^nd cheque, based on

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Crl.A.Nos.155 & 586 of 2009 6

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which, the present case is filed. I do not owe any amount to Davis. I owe amount to Jose.”

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From the aforesaid contentions, it is evident that her contention was that in the year 2003, she had borrowed an amount of 50,000/- from DW-2, Jose and two signed cheque leaves were given by her to the said Jose. It is further contented that by misusing one of the said cheque leaves, Jose filed a case before the Chalakkudy court for 4,00,000/-, and the other cheque leaf has been misused as Exhibit-P1 herein for filing the present case. It has to be noted that at that time, she had no explanation with regard to Exhibit-P2 cheque herein.

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Things again turned, when the accused mounted the Box and deposed as DW-1 before the court below. As DW-1, she deposed before the court below that she had borrowed an amount of `90,000/from the said Jose, for which, she had issued seven cheque leaves. She has also admitted that the cheque

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Crl.A.Nos.155 & 586 of 2009 7

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case filed by Jose before the Chalakkudy court for `4,00,000/- was settled between them and that the case was withdrawn. The said Jose was examined by the accused as DW-2. The evidence of DW-2 shows

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that the complaint filed by him against the accused was settled. He had explained that an amount of `1,00,000/- was paid for such a settlement and the balance amount was agreed to be paid in 13 monthly instalments.

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The court below has disbelieved the versions of DW-2 and has chosen to acquit the accused. DW-2 was cited and examined by the accused. When the court below has disbelieved DW-2, the court below ought to have disbelieved the versions of the accused and not those of the complainant. Here, in this particular case, any further discussion is not required to conclude that there was no probable contention at all from the part of the accused in the case. She pretended ignorance with regard to the identity of the

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Crl.A.Nos.155 & 586 of 2009 8

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complainant, when Exhibit-P13 reply notice was issued. At that time, her contention was that 'somehow her two cheque leaves came to the hands of the complainant'. At that stage, she had no contention that those cheque leaves were issued by her to Jose and the same came to the hands of the complainant.

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When PW-1 was cross-examined, she took a stand that she had some dealings with Jose. At that time, there was no contention that the cheque leaves allegedly issued by her to Jose were handed over by Jose to the complainant. Not even a suggestion to that effect was put to PW-1 in cross-examination.

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When she was examined under Section 313 Cr.P.C., she took a contention that she had borrowed an amount of `50,000/- from Jose in the year 2003, for which she had issued two signed cheque leaves. One was made use of by Jose to file the case at Chalakkudy court and the other one has misused by the

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Crl.A.Nos.155 & 586 of 2009 9

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complainant as Exhibit-P1 to file the present case.

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She had no explanation with regard to Exhibit-P2 cheque. When deposed as DW-1, she took a contention that she had borrowed an amount of `90,000/- from the said Jose and she had issued seven cheque leaves to the said Jose.

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From the aforesaid versions, it is evident that the accused had no contention at all. Various inconsistencies are there at different stages in her contentions. PW-1 has proved his case against the accused beyond doubt. The court below has acquitted the accused in these two cases without any valid ground. Unnecessarily the court below has thrown out the two complaints and has chosen to acquit the accused. The impugned common judgment has resulted in substantial miscarriage of justice. In this particular case, the complainant has brought out prima facie materials to invite the presumptions under Sections 118(a) and 139 of the Negotiable Instruments

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Crl.A.Nos.155 & 586 of 2009 10

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Act. The evidence adduced by the accused is not sufficient to rebut the said presumptions. It clearly stands proved that the accused has committed the offences punishable under Section 138 of the Negotiable Instruments Act. The impugned common judgment is liable to be reversed. It is found that the accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and she is convicted thereunder.

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In the result, Crl.Appeal No.155 of 2009 is allowed and the 1^st respondent/accused is convicted under Section 138 of the Negotiable Instruments Act in S.T.No.90 of 2005 of the court below. Similarly, Crl.Appeal No.586 of 2009 is also allowed and the 1^st respondent/appellant is convicted under Section 138 of the Negotiable Instruments Act in S.T.No.91 of 2005 of the court below.

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Regarding sentence, when these much period has been elapsed, this Court is of the view that the

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Crl.A.Nos.155 & 586 of 2009 11

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imprisonment to be imposed as substantive sentence can be limited to imprisonment till the rising of the court. At the same time, in S.T.No.90 of 2005 of the court below, the accused shall pay an amount of 60,000/-(Rupees sixty thousand only) as compensation to the complainant under Section 357 (3) Cr.P.C. within three months from today, in default, to undergo simple imprisonment for three months. In S.T.No.91 of 2005 of the court below, the accused shall pay an amount of 40,000/- (Rupees forty thousand only) as compensation to the complainant under Section 357(3) Cr.P.C. within three months from today, in default, to undergo simple imprisonment for two months.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/3/8/16

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// True Copy //

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P.A. To Judge

Davis.K.a. v. Mary Jose & State

Case brief

What is this about?

What did the court decide?

Davis.K.a. v. Mary Jose & State

Case brief

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