Dismissed

Mainakam General Finance Pvt. Ltd. v. Shameera Sageer

Kerala HC29 Aug 2016CRL.A/2752/2009

Case brief

AI extract

What is this about?

In a criminal appeal under Section 138 of the Negotiable Instruments Act arising from cheque dishonour, the High Court affirmed the acquittal of the accused. The Court held that the prosecution failed to prove consideration as no loan documents were produced and the cheque issuance was unclear regarding personal or joint liability.

What did the court decide?

The criminal appeal was dismissed with no order as to costs.

Mainakam General Finance Pvt. Ltd. Vs Shameera Sageer — 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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MONDAY, THE 29TH DAY OF AUGUST 2016/7TH BHADRA, 1938

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CRL.A.No. 2752 of 2009

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ORDER DATED 18-11-2009 IN CC 1057/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR

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PETITIONER/COMPLAINANT:

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MAINAKAM GENERAL FINANCE PVT. LTD., REPRESENTED BY T.K.KUNJUMON,AGED 52 YEARS, S/O.KUNJU MUHAMMED,THIRUVITHAMKOTTU HOUSE, PAPPINIVATTOM VILLAGE.

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BY ADVS.SRI.LINDONS C.DAVIS SMT.E.U.DHANYA

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RESPONDENT(S)/ACCUSED & STATE:

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1. SHAMEERA SAGEER, W/O.MOHAMMED SAGEER,THEPPARAMBIL HOUSE, PERINJANAM P.O,THRISSUR.

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

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R1 BY ADVS. SRI.T.S.HARIKUMAR

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SRI.K.JAGADEESH

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SRI.P.B.SAHASRANAMAN

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R2 BY SENIOR PUBLIC PROSECUTOR SRI.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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B.KEMAL PASHA, J.

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================ Crl.A. No.2752 of 2009

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======================= Dated this the 29^th day of August, 2016

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JUDGMENT

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Challenging the judgment of acquittal passed by the Judicial First Class Magistrate's Court, Kodungallur, 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 the complainant, against the 1^st respondent herein as the accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act').

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The case of the complainant is that the accused along with her husband had approached the complainant company and borrowed an amount of ₹1,80,000/-, by executing a promissory note in favour of the complainant. It is further alleged that, thereafter, the accused had not cared to repay any amount. As on 21.10.2008, an amount of 49,770/- fell due as interest, and thereby, the total₹

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Crl.A. No.2752 of 2009

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amount due became 2,29,770/-. It is alleged that the₹ accused issued Ext.P1 cheque dated 21.10.2008 to the complainant, in discharge of the said liability. The said cheque, when presented, returned dishonoured for 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.

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On the side of the complainant, the Senior Assistant of the complainant company was examined as PW1 and Exts.P1 to P14 were marked. No defence evidence was adduced. The court below found the accused not guilty of the offence punishable under Section 138 of the N.I.Act and acquitted her under Section 255(1) Cr.P.C.

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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 findings entered by the court below that Ext.P1 is not supported by the consideration, is not correct and that

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Crl.A. No.2752 of 2009

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the court below ought to have considered Ext.P1 cheque as the one issued by the accused in her personal capacity as well as in her capacity as the guarantor for and on behalf of her husband also.

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Per contra, the learned counsel for the 1^st respondent has argued that the complainant company has not produced any document to prove the liability of the accused or her husband. It has also been contended that Ext.P1 cheque is not supported by consideration.

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The specific case of the complainant is that the accused and her husband had jointly borrowed an amount of 1,80,000/- from the complainant on 18.04.2007, by₹ executing a joint promissory note. It is the case of the complainant that, thereafter, the accused had not repaid any amount, and thereby, an amount of 2,29,770/- fell due₹ as on 21.10.2008. According to the complainant, the accused issued Ext.P1 cheque in discharge of the said liability.

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Even though the complainant has got a specific case

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Crl.A. No.2752 of 2009

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that the accused and her husband had jointly borrowed the amount by executing a promissory note, no documents to show the loan transaction has been produced. Over and above it, the so-called promissory note has also not been produced. Regarding the said promissory note, PW1 has given a vague statement in his cross examination that the promissory note was returned to the accused when she issued Ext.P1 cheque. As rightly pointed out by the court below, the said explanation is not at all believable. A Finance Company, who has a case that through a joint transaction, amounts were borrowed by the accused and her husband would not have returned the promissory note after obtaining a cheque from the accused alone. The complainant has no case that the husband of the accused has not repaid any amount. What has been averred is that the accused has not repaid the amount. Nothing has been mentioned with regard to the default committed by the husband of the accused.

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As rightly pointed out by the learned counsel for the

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Crl.A. No.2752 of 2009

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1^st respondent, Ext.P1 is not supported by consideration when the liability in question was a joint liability of the accused and her husband. The complainant has no case either in the complaint or in the affidavit in lieu of chief examination of PW1 that the accused had issued Ext.P1 cheque in her personal capacity as well as in her capacity as a guarantor to her husband. In such case, Ext.P1 cheque allegedly issued for the whole amount as well as its interest cannot be said to be one supported by consideration. Matters being so, there is absolutely nothing to interfere with the impugned judgment passed by the court below. This appeal is devoid of merits and is only to be dismissed and I do so.

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In the result, this appeal is dismissed.

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Sd/- B.KEMAL PASHA, JUDGE

stu

//TRUE COPY//

P.A TO JUDGE.

Crl.A. No.2752 of 2009

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Mainakam General Finance Pvt. Ltd. v. Shameera Sageer

Case brief

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Mainakam General Finance Pvt. Ltd. v. Shameera Sageer

Case brief

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