Dismissed

K.N.Babu v. Sabu K.Eapen

Kerala HC28 Oct 2016CRL.A/389/2009

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against an acquittal in a cheque dishonour case. The court held that the complainant failed to establish prima facie materials required to invoke statutory presumptions under the Negotiable Instruments Act due to inconsistencies in witness testimony and lack of specific transaction details in the complaint.

What did the court decide?

Criminal Appeal No. 389 of 2009 dismissed; judgment of acquittal under Section 255(1) Cr.P.C. upheld.

K.N.Babu Vs Sabu K.Eapen — 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 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938

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CRL.A.No. 389 of 2009 (C)

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AGAINST THE JUDGMENT IN ST. NO.572/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II (MOBILE), KOTTAYAM DATED 29/11/2008.

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APPELLANT/COMPLAINANT::

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K.N. BABU, S/O. KUNJAPPAN, KIZHAKKECHIRAYIL HOUSE, CHALUKUNNU, KOTTAYAM.

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BY ADV. SRI.MVS.NAMBOOTHIRY.

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RESPONDENTS/ACCUSED & STATE::

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1. SABU K.EAPEN, S/O. EAPEN, KARIKKAL HOUSE, PRATHEEKSHA BOOTH, COLLECTORATE, OPP. K.K. ROAD, KOTTAYAM.

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

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R1 BY ADV. SMT.MINI ELIZABETH GEORGE. R2 BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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B. KEMAL PASHA, J.

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Crl. Appeal No.389 of 2009

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Dated this the 28^th day of October, 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-II, Kottayam in S.T. No.572/2008, the complainant before the court below

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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. The case of the complainant is that the accused issued Ext.P1 cheque in discharge of his liability to pay an amount of ₹2 lakhs to the complainant and the said cheque, when presented, returned dishonoured for insufficiency of funds in the accounts of the

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Crl.A.389/2009

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: 2 :

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accused. The notice caused to be issued to the accused under Section 138(b) of the N.I. Act returned unserved. The amount has not been paid and hence, the complaint.

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On the side of the prosecution, PW1 was examined and Exts.P1 to P6 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, acquitted him under Section 255(1) Cr.P.C. through the impugned judgment.

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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 that the court below has not considered the availability of the presumptions under Sections 118(a) and 139 of the N.I. Act to the complainant, and that the accused has not adduced any evidence to rebut those presumptions. It has also been argued that even though the accused had taken up a contention that an amount of ₹20,000/- only was

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Crl.A.389/2009

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: 3 :

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allegedly borrowed and the same was repaid with interest through cheques and cash, the accused has not cared to adduce any evidence before the court below regarding such discharge and, therefore, the same should not have been believed. Per contra , learned counsel for the 1^st respondent has supported the impugned judgment.

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On a perusal of the complaint as well as the affidavit in lieu of chief examination, it seems that the case of the complainant was that the accused, in discharge of his liability to pay an amount of ₹2 lakhs borrowed by the accused from the complainant, issued Ext.P1 cheque. Apart from such an averment, the date on which the alleged transaction had taken place, has not been revealed either in the complaint or in the affidavit in lieu of chief examination. Apart from that, PW1 has in cross-examination stated that the said amount of ₹2 lakhs was lent by him to the accused

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by way of two instalments, one in January 2007 and the second instalment in February 2007. At the same time, the

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Crl.A.389/2009

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: 4 :

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said averments do not find a place either in the complaint or in the affidavit in lieu of chief examination.

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Apart from all the above, according to PW1, on both occasions, he had some cash with him as cash in hand and he had withdrawn the balance amount from the bank. At the same time, PW1 did no remember as to the amounts which were withdrawn from the bank. In the cross-examination of PW1, the accused had specifically contended that an amount of ₹20,000/- only was borrowed by him from the accused by furnishing a blank signed cheque leaf in the year 2002 and thereafter, he made a repayment of ₹30,000/- which included its interest. Such repayment was allegedly made through 10 cheques of the Oriental Bank of Commerce, Kottayam Branch. When such a suggestion was put to PW1, PW1 has stated that the said repayment was in relation to a previous transaction. When examined under Section 313 Cr.P.C. also, the very same contention was resorted to, by the accused.

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Crl.A.389/2009

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: 5 :

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In order to get the benefit of presumptions under

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Sections 118(a) and 139 of the N.I. Act, the complainant has

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to bring out prima facie materials to substantiate his case. Here, the complainant has failed to make out prima facie materials for inviting the said presumptions. The appellant is not entitled to the aforesaid presumptions.

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On going through the impugned judgment and records of the case, I do not find anything to interfere with the 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 Criminal Appeal is dismissed.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/31/10

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// True Copy //

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PA to Judge

K.N.Babu v. Sabu K.Eapen

Case brief

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K.N.Babu v. Sabu K.Eapen

Case brief

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