Dismissed

E.Jayakumar v. v.Satheesh Chandran

Kerala HC26 Oct 2016CRL.A/262/2009

Case brief

AI extract

What is this about?

In a criminal appeal against an acquittal under Section 138 of the Negotiable Instruments Act, the High Court dismissed the appeal, holding that the lower court's finding that the accused's explanation was correct was not erroneous and the complainant was not entitled to statutory presumptions.

What did the court decide?

The criminal appeal is dismissed with no order passed in the matter.

E.Jayakumar Vs v.Satheesh Chandran — 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 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938

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CRL.A.No. 262 of 2009 ( )

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IN Crl.L.P. 85/2009 of HIGH COURT OF KERALA DATED 29-01-2009

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AGAINST THE JUDGMENT IN ST 3067/2008 of J.M.F.C.-II (MOBILE)KOZHIKODE DATED 16.10.2008

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APPELLANT(S):

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E.JAYAKUMAR,

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GROUND B.VIJAYA APARTMENTS, PARAYANCHERRY PO., KUTHIRAVATTOM, KOZHIKODE.

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BY ADV. SRI.K.PRAVEEN KUMAR

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RESPONDENT(S):

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1. V.SATHEESH CHANDRAN, PROPRIETOR, SATHEESH HERBAL ENTERPRISES, JAIL ROAD, PUTHIYARA PO., KOZHIKODE.

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

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R1 BY ADV. SRI.P.V.KUNHIKRISHNAN R2 BY PUBLIC PROSECUTOR SRI. C.S.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Crl.Appeal No.262 of 2009

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Dated this the 26^th day of October, 2016

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JUDGMENT

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Challenging the judgment of acquittal passed by the

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Judicial First Class Magistrate Court-I, Kozhikode, 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 (hereinafter referred to as NI Act).

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The case of the complainant is that the accused had borrowed an amount of Rs.4 lakhs from him on 02.01.2007, and in discharge of the said liability, the accused issued Ext.P1 cheque dated 05.03.2007. Ext.P1 cheque, when presented, returned dishonoured for insufficiency of funds in the account of the accused. The notice caused to be issued under Section 138

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(b) of the NI Act, evoked the response from the part of the

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Crl.Appeal No.262 of 2009 2

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accused in the nature of a reply notice containing false allegations and averments, and hence the complaint.

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On the side of the complainant, PW1 was examined and Exts.P1 to P7 were marked. On the side of the accused, DW1

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was examined and Exts.D1 to D5 series were marked. The court below found the accused not guilty of the offence punishable under Section 138 of the NI Act, and acquitted him under Section 255 (1) Cr.P.C through the impugned judgment.

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Heard the learned counsel for the appellant and the

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learned counsel for the 1^st respondent.

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According to the learned counsel for the appellant,

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the court below has not considered the evidence in the case in its true perspective and thereby the court below has committed a grave error in acquitting the accused. Per contra, the learned counsel for the 1^st respondent has fully supported the impugned judgment.

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In the evidence it has clearly come out through the

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admissions of PW1 that PW1 was a money lender. The accused had pledged gold ornaments and borrowed an amount of

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Crl.Appeal No.262 of 2009 3

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Rs.2,63,030/- through Ext.D2 series and a further amount of Rs.45,000/- though Ext.D3 from PW1. The accused had at first pledged 340 gms of gold ornaments and thereafter pledged 50 gms of gold ornaments through Exts.D2 and D3 series. It is the further case of PW1 that the said amount were not repaid by the accused. According to PW1, he had not initiated any steps for the sale of the gold ornaments for appropriating the amounts due to him.

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Even after admitting the said aspects, the further

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case of the complainant is that he had willingly lent an amount of Rs.4,00,000/- to the accused on 02.01.2007, that too, not for

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any interest. It cannot be believed that a banker or a financier to whom huge amounts were due from the accused had again lent an amount of Rs.4,00,000/- for no interest. The case of the complainant is that he had obtained Ext.P1 cheque dated 05.03.2007 from the accused for the very same amount of Rs.4,00,000/- allegedly borrowed by the accused from him on 02.01.2007.

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On a careful scrutiny of the entire evidence in this

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Crl.Appeal No.262 of 2009

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case, it seems that the explanation offered by DW1 seems to be correct. There is absolutely nothing to interfere with the impugned judgment. In this particular case, the complainant is not entitled to the presumptions under Section 118 (a) and 139 of the NI Act. True facts have not been narrated in the complaint to bring out prima facie materials to invite the said presumptions. This appeal is devoid of merits, and is only to be dismissed, and I do so.

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In the result, this Crl.Appeal is dismissed.

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Sd/- B.KEMAL PASHA, JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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AD/26/10/16

E.Jayakumar v. v.Satheesh Chandran

Case brief

What is this about?

What did the court decide?

E.Jayakumar v. v.Satheesh Chandran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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