In a cheque bounce appeal, the High Court of Kerala dismissed the criminal appeal filed by a complainant challenging the acquittal of the accused, finding lack of prima facie evidence to invoke statutory presumptions.
Criminal appeal dismissed. Acquittal of the respondent maintained.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938
CRL.A.No. 156 of 2009 ( )
-------------------------CC.NO. 3367/2008 OF ADDL. CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM
APPELLANT/PETITIONER:
K.V.HARIHARAN, S/O. N.V.IYYER, 'SMITHA HOUSE', KANNATHODATH LANE, KANAYANNUR, NOW RESIDING AT R.P. IV-246 A, RAMANTHALI AMSOM, KANNUR.
BY ADVS.SRI.SUNNY VARGHESE SRI.P.A.AUGUSTIAN SRI.T.R.JAGADEESH
RESPONDENT(S)/ACCUSED :
1. P.K.NANDAKUMAR, PAYYAPPALLY HOUSE, MILLENIUM LANE, EDAPPALLY, ERNAKULAM.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
R1 BY ADVS. SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.V.RAJENDRAN (PERUMBAVOOR) R2 BY SR PUBLIC PROSECUTOR SRI.C.S.HRITHWIK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
B. KEMAL PASHA, J.
Crl. Appeal No.156 of 2009
Dated this the 17th day of October, 2016
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
This is an appeal filed by the complainant in C.C. No.3367/2008 of the Additional Chief Judicial Magistrate's Court, Ernakulam, challenging the judgment of acquittal. The case before the court below is the result of a private complaint filed by the appellant herein as complainant, against the 1st respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The case of the complainant is that the accused had borrowed an amount of ₹50,000/- from him on agreeing to repay the same within six months. The accused failed to repay the amount as promised and thereafter, when the complainant demanded the amount, the accused issued Ext.P1 cheque dated 02.01.2007. The said cheque, when presented, returned dishonoured for
Crl.A.156/2009
: 2 :
insufficiency of funds in the accounts of the accused. Even though a notice as contemplated under Section 138(b) of the N.I. Act was caused to be issued, it evoked no response and hence, the complaint.
Crl.A.156/2009
: 3 :
the evidence, it has come out that the complainant has failed to bring out necessary prima facie materials to invite the presumptions under Sections 118(a) and 139 of the N.I. Act. As rightly found by the court below, the mere signature in the cheque alone will not invite a presumption with regard to the consideration. Such an admission of the signature does not constitute proof of execution. In order to invite the presumptions under Sections 118(a) and 139 of the N.I. Act, the complainant has to bring out necessary prima facie materials. In the absence of such materials, the appellant is not entitled to the said presumptions. Matters being so, there is absolutely nothing to interfere with the impugned judgment. The appeal is devoid of merits and is only to be dismissed, and I do so.
In the result, this Criminal Appeal is dismissed.
Sd/- (B.KEMAL PASHA, JUDGE)
aks/17/10
// True Copy // PA to Judge
2 issues framed by the court
Whether the appellate court is entitled to interfere with the acquittal of the accused in a cheque bounce case.
Whether the primary complainant brought prima facie materials to invoke presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act, 1881.
3 provisions across 1 enactments
K.V.HARIHARAN
P.K.NANDAKUMAR
STATE OF KERALA
B.KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
