Dismissed

Npr Finance Ltd. v. Pious George

Kerala HC26 Sept 2016CRL.A/393/2009

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the criminal appeal filed by N.P.R. Finance Ltd. against an acquittal order under Section 138 of the Negotiable Instruments Act. The court held that the complainant failed to allege or prove that the principal hirer had defaulted, which is necessary to implicate the guarantor under Section 138.

What did the court decide?

Criminal Appeal dismissed; acquittal of the accused upheld.

Npr Finance Ltd. Vs Pious George — Contract and Commercial Disputes | 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 26TH DAY OF SEPTEMBER 2016/4TH ASWINA, 1938

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CRL.A.No. 393 of 2009 ( )

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ST 1359/2005 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-IV, KOCHI

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APPELLANT(S)/PETITIONER/COMPLAINANT:

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N.P.R.FINANCE LTD., 41/1787, CHITTOOR ROAD, KOCHI-18, REPRESENTED BY BRANCH MANAGER, E.NARAYANAN, S/O.EASWARAN, AGED 35, 47/1987, CHITTOOR ROAD, KOCHI - 18.

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BY ADVS.SRI.S.SREEKUMAR

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SRI.P.MARTIN JOSE

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SRI.P.PRIJITH

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RESPONDENTS/ACCUSED:

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1. PIOUS GEORGE, S/O.GEORGE, POKKATH HOUSE, ERUMATHALA P.O., CHOONDY, ALUVA.

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2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR.

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R1 BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) R2 BY PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

DSV/27/9/16

B. KEMAL PASHA, J

=================

Crl.Appeal No.393 of 2009 =================

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Dated this the 26^th day of September, 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 Judicial First Class Magistrate’s Court-IV, Kochi in S.T.No.1359 of 2005, the complainant in the case before the court below has come up in appeal.

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The case of the complainant is that one Shaju George as the hirer, and the accused as the 2^nd

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guarantor and one Bejoy Thomas as the 1^st guarantor had executed Exhibit-P2 hire purchase agreement in respect of a stage carriage. It is the case of the complainant that ‘towards discharge of the monthly hire amount and expenses, the accused had issued’ Exhibit-P4 cheque for 6,97,340/-. The said cheque₹ when presented, returned dishonoured for insufficiency of funds in the account of the accused. Even though a notice as contemplated under Section

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Crl.A.No.393 of 2009 2

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138(b) of the Negotiable Instruments Act was caused

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to be issued, it evoked no response and hence the complaint.

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On the side of the complainant, PW-1 was

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examined and Exhibits P1 to P9 were marked. No defence evidence was adduced. The court below found the accused not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and acquitted him under Section 255(1) Cr.P.C.

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Heard the learned counsel for the appellant

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and the learned counsel for the 1^st respondent.

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The learned counsel for the appellant has

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argued that the accused had no consistent case or defence before the court below and even then the court below had acquitted the accused without any valid reasons.

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Per contra, the learned counsel for the 1^st

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respondent has argued that there is no evidence to

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Crl.A.No.393 of 2009 3

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show that Exhibit-P4 cheque is supported by consideration and therefore, an offence under Section 138 of the Negotiable Instruments Act cannot be invited in this matter.

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It is the specific case of the complainant that one Shaju George was the hirer. Exhibit-P2 hire purchase agreement also clearly reveals that Shaju George was the hirer. There were two guarantors namely the accused as well as one Bejoy Thomas. According to the complainant, the accused issued Exhibit-P4 cheque towards the discharge of the monthly hire amount and expenses. The complainant

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has no case that the accused had voluntarily taken the liability of the hirer and issued Exhibit-P4 cheque in discharge of the liability of the hirer. The complainant has no case in the complaint that the hirer had committed any default. Unless and until the hirer had committed default, the accused being a guarantor has

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Crl.A.No.393 of 2009 4

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no liability at all. On going through the complaint, it seems that the complainant has not stated any where that the hirer had defaulted the payment.

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In the affidavit in lieu of chief examination

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also PW-1 has no case that the hirer had defaulted payment. Unless and until there is default from the hirer, the guarantor cannot be clothed with any liability in the matter. Matters being so, this is a case, wherein, it can be said that an offence under Section 138 of the Negotiable Instruments Act cannot be attracted. The complainant has failed to bring out necessary prima facie materials to invite the presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act.

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Another aspect is that PW-1, who has represented the Company, is not properly authorised. Even though he has a case that he was authorised to file the complaint through a resolution by the Board of

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Crl.A.No.393 of 2009 5

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Directors, the resolution was not produced. Instead of such a resolution, the Power of Attorney issued by the Managing Director of the Company has been produced. When the Managing Director himself is a delegate, he cannot further delegate.

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From all the above, this Court is satisfied that any interference is not required in the impugned judgment. 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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DSV/26/9/16

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// True Copy //

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P.A. To Judge

Npr Finance Ltd. v. Pious George

Case brief

What is this about?

What did the court decide?

Npr Finance Ltd. v. Pious George

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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