Dismissed

Prabhakaran v. Sathyan

Kerala HC14 Oct 2016CRL.A/359/2009

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal appeal against an order of acquittal in a cheque bounce case. The court held that the complainant failed to prove the existence of consideration for the cheque and cast doubt on his credibility regarding the source of funds, thereby supporting the lower appellate court's decision to acquit the accused.

What did the court decide?

The Criminal Appeal filed by the appellant is dismissed, upholding the acquittal of the accused.

Prabhakaran Vs Sathyan — 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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FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938

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CRL.A.No. 359 of 2009 ( )

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AGAINST THE ORDER IN Crl.L.P. 106/2009 of HIGH COURT OF KERALA DATED 13-02-2009

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AGAINST THE JUDGMENT IN CRA 784/2005 of ADDL. DISTRICT COURT(ADHOC 2), THRISSUR DATED 04-10-2008

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S.T. NO.513/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA

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PETITIONER/IST RESPONDENT/COMPLAINANT:

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PRABHAKARAN, S/O.VELAYUDHAN, NADUVATHRA HOUSE, KONATHUKUNNU P.O., THEKKUMKARA VILLAGE, MUKUNDAPURAM TALUK.

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BY ADVS.SRI.VAKKOM N.VIJAYAN SMT.V.RENJU

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RESPONDENT(S)/APPELLANT AND STATE/ACCUSED:

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1. SATHYAN, S/O.VIJAYAN, VELUPARAMBIL HOUSE, VALLIVATTOM P.O., MUKUNDAPURAM TALUK.

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

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R1 BY ADV. SRI.RAJESH CHAKYAT R2 BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA, J.

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Crl.Appeal No.359 of 2009

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Dated this the 14^th day of October, 2016

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JUDGMENT

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Challenging the judgment of acquittal passed by the Additional Sessions Court, Adhoc-II, Thrissur, in Crl.Appeal No.784/2005, the complainant in ST NO.513/2004 of the Judicial First Class Magistrate Court, Irinajalakuda has come up in appeal. ST NO.513/2004 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 trail court recorded the evidence of PW1 and DWs 1 to 3. On the side of the complainant Exts.P1 to P5 were marked. On the side of the accused D1 to D5 series were marked. The

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trial court found the accused guilty of the offence punishable under Section 138 of the NI Act, and convicted him thereunder

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and sentenced him. The conviction and sentence were

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Crl.Appeal No.359 of 2009

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challenged by the accused before the court below through Crl.Appeal No.784/2005. The lower appellate court has found the accused not guilty of the offence punishable under Section 138 of the NI Act and allowed the appeal by setting aside the conviction and sentence, and hence this appeal.

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The case of the complainant is that the accused in discharge of his liability to pay an amount of Rs.75,0000/- to the complainant issued Ext.P1 cheque, which on presentation returned dishonoured for insufficiency of funds in the accounts of the accused. The complainant caused to issue Ext.P3 demand notice as contemplated under Section 138(b) of the NI Act, which

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evoked a response in the form of Ext.P4 reply notice from the accused. No amount was paid by the accused, and hence the complaint.

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It seems that from the very beginning, the accused has been maintaining the same contention. In Ext.P4 reply notice, the accused has contented that the accused had no financial transactions with the complainant; whereas one Unnikrishnan who is none other than the nephew of the

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Crl.Appeal No.359 of 2009 3

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complainant had preferred a complaint against the accused before the Circle Inspector of Police, Irinjalakuda and consequently the accused along with his wife were called to the Police Station wherein they were intimidated and threatened. They were forced to issue four signed cheque leaves together to the complainant. According to the accused, by misusing one of such cheque leaves obtained from the accused, PW1 as name lender of Unnikrishnan has preferred the complaint. When examined under Section 313 Cr.P.C also, the very same contentions were resorted to by the accused.

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In the complaint, the complainant has not narrated

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the nature of the transaction between the parties. How the liability has arisen, has not been disclosed in the complaint. Apart from stating that the said cheque was issued in discharge of a legally enforcible debt, it has not been narrated in the complaint that the accused had borrowed the said amount of Rs.75,000/- from the complainant. The date on which the amount was allegedly borrowed has not been mentioned either in Ext.P3 notice or in the complaint. In order to make available the

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Crl.Appeal No.359 of 2009 4

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presumptions under Sections 118(a) and 139 of the NI Act, the complainant has to make out necessary prima facie materials.

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Here in this particular case, the nature of the transaction has not been disclosed in the complaint. The accused has from the very beginning resorted to the very same contentions as aforesaid. He has issued Ext.P4 reply notice also on getting Ext.P3 demand notice.

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According to the learned counsel for the appellant, a civil suit was filed by the accused against the complainant demanding the cheque leaves allegedly obtained from the accused and his wife and the said suit was dismissed. The dismissal of the said suit will never improve the case of the complainant. It is for the complainant to bring out prima facie materials to invite the presumptions under Sections 118(a) and 139 of the NI Act. In the cross examination of PW1, he has gone to the extent of stating that he has not been contesting the civil suit filed against him. He was confronted with the certified copy of the written statement. He admitted his signature in the written statement. That itself is sufficient to note down that the

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Crl.Appeal No.359 of 2009 5

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transaction in question was between the accused and some other person. PW1 was only a name lender to such other person who

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had obtained the cheque leaf from the accused. On going through the entire evidence in this case, this Court is satisfied that the view taken by the lower appellate court is correct. The appellant has failed to prove that the cheque is supported by consideration.

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Apart from that, it has come out that, the appellant had no source of income to lend an amount of Rs.75,000/- to the accused. It has come out in cross examination of PW1 that he

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had an amount of Rs.30,000/- with him, and for lending an amount of Rs.75,000/- to the accused, he had to borrow an amount of Rs.50,000/- from his neighbour. The complainant has

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no case that the amount was borrowed by the accused on interest. If as a matter of fact the amount was lent for exorbitant interest, the case forwarded by the appellant could have been believed. In normal circumstances, it cannot be believed that for lending an amount of Rs.75,000/- to the accused, the complainant had borrowed an amount of

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Crl.Appeal No.359 of 2009 6

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Rs.50,000/- from his neighbour.

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From all the above, it has come out that the

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complainant has failed to prove his case against the accused. The trial court had most mechanically entered the conviction and

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sentence. The same were rightly set aside by the lower appellate court. The impugned judgment is not liable to be interfered with. 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/-

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B.KEMAL PASHA, JUDGE

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//TRUE COPY//

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P.A. TO JUDGE

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AD/14/10/16

Prabhakaran v. Sathyan

Case brief

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Prabhakaran v. Sathyan

Case brief

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