Partly allowed

Jose v. P.T.Wilson

Kerala HC30 Aug 2016CRL.A/391/2009

Case brief

AI extract

What is this about?

This court allowed the criminal appeal against acquittal in a cheque dishonour case. The court remitted the matter to the trial court to grant the accused an opportunity to adduce further evidence regarding the transaction, presuming the validity of the notice and the lending transaction.

What did the court decide?

The criminal appeal is allowed; the impugned judgment of the trial and appellate courts is set aside; the case is remitted to the trial court to afford an opportunity to the accused to adduce further

Jose Vs P.T.Wilson — 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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TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938

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CRL.A.No. 391 of 2009

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CRIMINAL APPEAL NO. 723/2006 OF THE ADDITIONAL SESSIONS COURT, THRISSUR, FAST TRACK COURT NO.II (ADHOC)

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S.T.NO. 692/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT NO.III, THRISSUR

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PETITIONER (S)/2ND RESPONDENT/COMPLAINANT :

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JOSE, S/O.THATTIL IMBHAVU DEVASSY, PERUMBILLISSERY DESOM, CHERPU VILLAGE, THRISSUR.

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BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA

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RESPONDENT(S)/APPELLANT & 1ST RESPONDENT/ACCUSED & STATE :

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1. P.T.WILSON, S/O.THIMOTHY, PUTHENVEETTIL (H), CHIYYARAM VILLAGE, KURIACHIRA DESOM, THRISSUR DISTRICT.

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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.C.P.PEETHAMBARAN R2 BY PUBLIC PROSECUTOR SRI. ALEX M.THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-08-2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 391 of 2009 ............................................................... Dated this the 30^th day of August, 2016

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J U D G M E N T

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Challenging the judgment of acquittal passed by the Additional Sessions Court(Adhoc-II), Thrissur in Crl.Appeal No.723/2006, the 2^nd respondent in the appeal, who is the complainant before the trial court has come up in appeal. The case before the court below is as a result of a private complaint filed by the appellant herein as complainant, against the first respondent herein as accused, alleging offence punishable under Section 138 of the N.I. Act. The trial court after recording the evidence, found the accused guilty of the offence under Section 138 of the N.I.Act, convicted him thereunder and sentenced him. Challenging the conviction and sentence, the accused preferred Crl.Appeal.No.723/2006 before the lower appellate court. The lower appellate court allowed the appeal by setting

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Crl. Appeal No. 391 of 2009

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-: 2 :-

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aside the conviction and sentence passed by the trial court. Challenging the said decision of the lower appellate court, the complainant has come up in appeal before this Court.

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The case of the complainant is that the accused had borrowed an amount of ₹1 lakh from the complainant and when it was demanded back, the accused issued Ext.P1 cheque. Ext.P1 cheque, when presented, returned dishonoured for insufficiency of funds in the accounts of the accused. A notice as contemplated under Section 138(b) of the N.I. Act was issued to the accused, which evoked no response, and hence the complaint.

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On the side of the complainant, PW1 was examined and Exts.P1 to P6 were marked. The accused, as DW1, adduced evidence in his favour.

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For setting aside the conviction and sentence passed by the trial court, the lower appellate court has considered the fact that the appellant could not prove the source from which he had raised the amount for lending it to

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Crl. Appeal No. 391 of 2009

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DW1. Over and above it, the lower appellate court has given weight to the difference in the handwriting in the contents of the cheque and the handwriting in the signature of DW1 in the cheque.

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This is a case wherein the accused had not cared

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to issue any reply, even though he had received Ext.P4 notice. According to the accused, he had not received the notice since the name of the street was not shown in the address in the notice. Ext.P6 is the postal acknowledgment card. Ext.P4 was issued in the very same address of the accused as shown in the complaint. In the complaint also the street name is not shown in the address of the accused. In the vakkalath of the accused also the street name is not shown in his address. Apart from all the above, the presumption under Section 114 illustration (e) of the Indian Evidence Act clearly comes to the rescue of the appellant that “the Court may presume that official acts have been regularly performed” . Ext.P4 notice was sent through

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Crl. Appeal No. 391 of 2009

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registered post. When postal authorities had effected delivery, it is hard to believe the belated contention taken up by the accused that the complainant himself could manage to receive the notice by affixing the forged signature of the accused in the postal acknowledgment card. It cannot be believed that Ext.P4 notice issued in the address of the accused could be obtained by the appellant.

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The lower appellate court also has disbelieved the version of the accused regarding the non-receipt of Ext.P4 notice. The lower appellate court has also endorsed the view that the notice was served on the accused. Of course, it is not mandatory on the part of the accused to issue a reply notice, as against the notice under Section 138 (b) of the N.I. Act. At the same time, when the contentions of the present nature are taken by the accused, the silence on the part of the accused may speak volumes against him.

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The contentions of the accused before the court

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below are that he had issued the cheque in question to one

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Crl. Appeal No. 391 of 2009

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Sathyan in connection with a kuri transaction and that the said cheque has been misused by the complainant. If the accused had a contention that he had no transaction with

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the complainant, definitely, in the normal course, he would have issued a reply as against Ext.P4. In the cross examination of PW1, the accused contended that he had issued a blank signed cheque leaf to 'Sreelakshmi Kuries' and the same was handed over by the said Sathyan to the complainant.

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The lower appellate court has found fault with the appellant in not proving his source of income. The cross examination of PW1 itself clearly brings out materials regarding the source of his income. Even though the accused has got a case that the complainant had no acquaintance with the accused, the evidence of PW1 in cross-examination shows otherwise. The evidence of PW1 in cross-examination clearly reveals that the complainant had acquaintance with the brother as well as father of the

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Crl. Appeal No. 391 of 2009

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accused and he had dealings with them. No question regarding the transactions of the accused with the complainant or vice versa have been put to PW1 in cross examination. It seems that the complainant could bring out prima facie materials regarding the transaction between him and the accused, which can invite the presumptions under Sections 118(a) and 139 of the N.I. Act. He has clearly narrated the sources from where he could raise the amount. True that, he had not obtained any other document when he had allegedly lent that much amount to the accused. At the same time, in all cases it cannot be said that the transaction cannot be believed in case no such documents are obtained. In a case wherein the parties have other dealings, on every occasion they are not expected to obtain documents for entering into each and every transaction. Here, in this case, the complainant is entitled to the presumptions under Sections 118(a) and 139 of the N.I. Act.

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The learned counsel for the first respondent has

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Crl. Appeal No. 391 of 2009

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pointed out that there is difference between the handwriting in the writings in the cheque and handwriting in the signature of DW1 in the cheque. As rightly pointed out by the court below even by naked eye it is possible to see the difference in the handwritings. At the same time, the lower appellate court ought not to have acquitted the accused, merely because of such difference in the handwritings. The said aspect was put to PW1 in cross-examination. PW1 has clearly deposed when he was questioned about the difference in the handwritings, that Ext.P1 cheque was in the very same state when that was delivered to him by the accused. According to him, a filled in cheque containing all the contents was handed over to him.

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The learned counsel for the first respondent has argued that there was a witness who had witnessed the handing over of the cheque by the accused to the 'Sreelakshmi Kuries' or Sathyan and the trial court had denied an opportunity to the accused to adduce evidence

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Crl. Appeal No. 391 of 2009 -: 8 :-

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relating to the same. This Court is of the view that for that limited purpose, the case can be remitted to the court below.

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In the result, this Criminal Appeal is allowed, and the impugned judgment passed by the trial court as well as the appellate court are set aside. It is found that the appellant is entitled to the presumptions under Sections 118(a) and 139 of the N.I. Act. Only for extending an opportunity to the accused to adduce further evidence, if so advised, the case is remitted to the trial court for disposal in accordance with law. In case the complainant also wants to adduce evidence, the complainant is also free to avail such an opportunity. The parties shall appear before the trial court on 20.09.2016.

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ul/-

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Sd/- B. KEMAL PASHA, JUDGE. // true copy //

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P.S. to Judge.

Jose v. P.T.Wilson

Case brief

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Jose v. P.T.Wilson

Case brief

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