Criminal Appeal against acquittal in a cheque bounce case under Section 138 of the Negotiable Instruments Act. The Court held that the accused failed to rebut the statutory presumption and lacks documentary evidence of the alleged debt, dismissing the appeal and upholding the acquittal.
The Criminal Appeal is dismissed.
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 P.D.RAJAN
MONDAY, THE 11TH DAY OF JANUARY 2016/21ST POUSHA, 1937
CRL.A.No. 388 of 2004 ( )
AGAINST THE JUDGMENT IN CC 85/2001 of J.M.F.C.-III(MOBILE), ERNAKULAM
APPELLANT(S)/COMPLAINANT:
M.P.STANLEY, S/o. LATE M.L.PRESSY, MUKKATH HOUSE, EDAVANAKKAD, KOCHI TALUK.
BY ADV. SRI.K.S.BABU
RESPONDENT(S):
1. P.V.SIVARAMAN, S/O.VEKAYUDHAN, PUDUKKATTIL HOUSE, MATURE LANE, CHIYYARAM P.O. CHIYYARAN VILLAGE, THRISSUR.
2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.LELLULAL T.G.THUNDATHIL
R2 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
STK
P.D. RAJAN, J.
Crl.Appeal.388 of 2004
---------------------------------------------Dated this the 11th of January, 2016
JUDGMENT
This appeal is preferred against the judgment of acquittal in C.C.85/01 of the Judicial First Class MagistrateIII, Ernakulam under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act’). The complainant's case is that, in discharge of a debt, accused issued a cheque for Rupees Three lakhs to the complainant. When it was presented through South Indian Bank, Ernakulam, it was dishonoured for the reason of funds insufficient. The complainant demanded the due amount by giving a notice in writing. Even after receipt of that notice, there was no repayment. In the circumstance, a complaint was filed in the trial court.
Crl.Appeal.388 of 2004 2
examined DW1 to DW3 and marked Exts.D1 to D7(a) to (c). The trial court acquitted the accused. Being aggrieved by that he preferred this appeal.
Crl.Appeal.388 of 2004 3
Crl.Appeal.388 of 2004 4
drawer of the cheque.
“139. Presumption in favour of the holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability”.
Crl.Appeal.388 of 2004 5
Director of the firm and accused had borrowed some amount from the firm and he failed to return the cash, thereby she filed a complaint against the first respondent, which ended in acquittal and Ext.D2 is the certified copy of the judgment. She also stated that her husband preferred another complaint against the accused in a cheque transaction, thereafter DW1 pleaded inability to identify the present complaint. DW2, who is the husband of DW1 stated that he did not know the appellant in this case. During cross-examination of DW2, he admitted that the ledger and index book of Sayujya Kuries is with him and which were produced before Chief Judicial Magistrate, Thrissur and the extract of the ledger page 151 was marked as Ext.D3. The certified copies of the register book of Sauyujya Kuries was marked as Ext.D4 and balance sheet during 1998-99 of Sauyujya Kuries was marked as Ext.D5. DW3 is the Manager of complainant's firm, Unicenter Service Corporation and his evidence shows that during 1.4.97 to 31.03.2000 the firm is maintaining audit balance-sheet, which was marked as
Crl.Appeal.388 of 2004 6
Ext.D7. DW3 deposes that complainant has drawn
Rs.36,000/- during December and January, as per schedule A in Ext.D7, his salary was Rs.39,000/-. There was a liability of Rs.4,24,892.92 Schedule-A in Ext.7 was entered as Ext.D7(a). Separate drawing of the complainant during the period December-January 1998 was marked as Ext.D7(b). The total liability shown was marked as Ext. D7(c). The total cash received from the company is Rs.36,000/-. The total liability of the firm is Rs.4,24,892.92. This evidence of first respondent shows that the complainant failed to prove the source of income to give such an amount to the first respondent.
When accused examined DW1 to DW3 and produced Exts.D1 to D7(c), the burden normally shifts to the complainant for which he has only the oral evidence in that point. When accused discharges his burden and appellant fails to prove that Ext.P1 was issued in discharge of a debt or liability, the accused is entitled to get the benefit of doubt. Appellant failed to produce documentary evidence to show that he has paid Rs.3
Crl.Appeal.388 of 2004 7
lakhs. In the absence of such evidence, trial court rightly acquitted the accused. I find no illegality in the order and there is no merit in this appeal and it is dismissed accordingly.
STK
Sd/- P.D. RAJAN, JUDGE
//TRUE COPY//
P.A. TO JUDGE
2 issues framed by the court
Whether the High Court should allow the appeal against the acquittal of the accused for cheque dishonour under Section 138 of the Negotiable Instruments Act.
Whether the accused discharged the burden of proving that the cheque was not issued for discharge of debt or liability.
Colour shows how this judgement treated each authority
Beena v. MuniappanReferred¶33
Beena v. Muniappan AIR 2001 SC 2995 · Who else cites this
Narayana Menon v. State of KeralaReferred¶33
Narayana Menon v. State of Kerala 2006 (3) KLT 404
2 provisions across 1 enactments
M.P.Stanley
P.V.Sivaraman
State Of Kerala
P.D. Rajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
