Allowed

K.K.Govindankutty Nair v. P.a.Abijith and Another

Kerala HC30 Aug 2016CRL.A/240/2009

Case brief

AI extract

What is this about?

The High Court allowed an appeal against acquittal in an offence under Section 138 of the Negotiable Instruments Act. Reversing the lower court, which relied on extraneous reasons to discredit witness testimony, the Court held that the ingredients of the offence were proved. The accused was convicted and sentenced to jail till the rising of the court with a compensation of one lakh rupees.

What did the court decide?

Conviction under Section 138 of the Negotiable Instruments Act, 1881. Sentence: Imprisonment till the rising of the court and compensation of ₹1 lakh to PW1 within two months in default to undergo sim

K.K.Govindankutty Nair Vs P.a.Abijith and Another — 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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TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938

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CRL.A.No. 240 of 2009

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ST 1537/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THAMARASSERY DATED 25-10-2008

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APPELLANT(S)/COMPLAINANT:

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K.K. GOVINDANKUTTY NAIR, AGED 67 , S/O.LATE KUNHIRAMAN NAIR, ASIWARIA, UNNIKULAM P.O., KEDAVOOR VILLAGE, POONOOR DESOM.

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BY ADV. SRI.T.G.RAJENDRAN

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RESPONDENT(S)/ACCUSED AND STATE:

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1. P.A. AJITH, AGED 22, S/O.ASOKAN, CHAKKITTAKANDI HOUSE, KANTHAPURAM, UNNIKULAM P.O.

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

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R1 BY ADV. SRI.SUNNY MATHEW

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R2 BY SENIOR PUBLIC PROSECUTOR SRI.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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Crl. Appeal No.240 of 2009

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Dated this the 30^th day of August, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Challenging the judgment of acquittal passed by

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the Judicial First Class Magistrate's Court-I, Thamarassery in ST No.1537/2007, the complainant before the court below has come up in appeal. The case before the court below is the result of a private complaint filed by the appellant herein as complainant, against the 1^st respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

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The case of the complainant is that he was the owner of a mini bus bearing registration No.KL-11J-3666,

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Crl.A.240/2009

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: 2 :

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which he had rented out to the accused along with the route permit. In that transaction, an amount of ₹1,06,650/- fell due from the accused to the complainant. Since the amount was not paid, it paved way for a dispute between the parties, and the disputes were settled through the intervention of PW2 as a mediator. Consequently, Ext.P7 agreement was executed by the accused in favour of the complainant in the presence of PW2 and other witnesses. It was based on Ext.P7 agreement, the amount of ₹6,650/- was paid in cash, and the two cheques Exts.P1 and P2 each for ₹50,000/-, were issued. When the said cheques were presented for payment, the same returned dishonoured for insufficiency of funds in the accounts of the accused. Demand notice as contemplated under Section 138(b) of the NI Act was caused to be issued to the accused and the same returned as unclaimed. No amount was paid and hence, the complaint.

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On the side of the complainant, PW1 and PW2

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Crl.A.240/2009

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: 3 :

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were examined and Exts.P1 to P7 were marked. No defence evidence was adduced. The court below found the accused not guilty of the offence under Section 138 of the NI Act and acquitted him under Section 255(1) Cr.P.C.

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

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Learned counsel for the appellant has argued

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that the court below has invented some reasons for acquitting the accused and those reasons are not at all tenable.

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The court below has found fault with the appellant

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in not producing the records regarding the ownership of the vehicle. When Ext.P7 stands proved, any further evidence relating to the transaction between the parties was not expected to be produced, when the case is in respect of an offence punishable under Section 138 of the NI Act. What was expected from the part of the complainant in order to invite the presumptions under Section 118(a) and 139 of the

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Crl.A.240/2009

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: 4 :

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NI Act are prima facie materials to invite the said presumptions.

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Here, in this particular case, the transaction has been clearly pleaded. In the affidavit in lieu of chief examination, the complainant as PW1 has clearly narrated with regard to the original transaction between the parties, the execution of Ext.P7 and consequent issuance of Exts.P1 and P2 cheques. It is true that Ext.P7 was not initially produced before the court below. At the same time, when PW1 was questioned with regard to the same, PW1 had voluntarily agreed to produce the agreement in case it was required. He produced Ext.P7 agreement and proved the same through PW2.

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PW2 has clearly stated that he knew the transaction between the parties and that the stage carriage of the appellant was given on rent to the accused for a daily rent of ₹450/-. An amount of ₹1,06,650/- fell due to the complainant from the accused, out of which an amount of

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Crl.A.240/2009

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: 5 :

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₹6,650/- was paid. For the balance amount, Ext.P7

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agreement was entered into between the parties. Since an amount of ₹1 lakh was due from the accused to the complainant, the cheques in question were issued on the basis of Ext.P7 complaint.

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Purely by citing some extraneous reasons, the court below has chosen to discard the evidence of PW2. No cogent reasons are mentioned by the court below for disbelieving PW1 and PW2. No proper explanation has been offered by the accused as to how his cheques happened to be in the hands of PW1. Apart from putting the vague suggestion to PW1 in cross-examination that the accused had entrusted two signed blank cheques to the accused as a guarantor when one of the relatives of the accused had borrowed amounts from the complainant, no evidence has been adduced by the accused to prove such a contention. The accused had not made it clear as to who was the so-called relative and when such a transaction had

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Crl.A.240/2009

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: 6 :

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taken place. It is by believing the vague contention resorted to by the accused, the court below has chosen to disbelieve PW1 and PW2.

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In this particular case, it stands proved that the complainant is entitled to the presumptions under Sections 118(a) and 139 of the NI Act. The accused has not adduced any evidence to rebut those presumptions. It clearly stands proved that Exts.P1 and P2 cheques are supported by consideration, since the same are based on Ext.P7 agreement. The court below has committed a grave error in acquitting the accused. All the ingredients of an offence punishable under Section 138 of the NI Act have been clearly proved by the complainant. Matters being so, the impugned judgment has to be reversed.

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The accused is found guilty of the offence punishable under Section 138 of the NI Act and is convicted thereunder. Regarding sentence, this Court is of the view that after the lapse of this much period, it is not just and

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Crl.A.240/2009

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: 7 :

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proper int the interest of justice to impose a long sentence of imprisonment on the accused. This Court is of the view that a sentence of imprisonment till the rising of the court and to pay a compensation of ₹1 lakh to PW1 within a period of two months from today, in default to undergo simple imprisonment for six months, will meet the ends of justice in this case.

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In the result, this Criminal Appeal is allowed and the judgment of acquittal passed by the court below is reversed. The accused is convicted under Section 138 of the NI Act and sentenced to undergo imprisonment till the rising of the court and to pay a compensation of ₹1 lakh to PW1 within a period of two months from today, in default to undergo simple imprisonment for six months.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/30/08

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// True Copy // PA to Judge

K.K.Govindankutty Nair v. P.a.Abijith and Another

Case brief

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K.K.Govindankutty Nair v. P.a.Abijith and Another

Case brief

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