In this criminal appeal, the High Court dismissed the appellant's challenge to the acquittal of the first respondent. The Court held that the appellant failed to prove that the dishonoured cheque was supported by consideration and found the appellant's version unbelievable.
The criminal appeal was dismissed, affirming the acquittal of the accused.
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 B.KEMAL PASHA
MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938
CRL.A.No. 439 of 2009
ST 1112/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-X, TRIVANDRUM DATED 18-11-2008
APPELLANT(S)/COMPLAINANT:
K.VIJAYAN, SOUMYA BHAVAN, THUNDUVILLA, KALLIYOOR VILLAGE, THIRUVANANTHAPURAM.
BY ADV. SRI.D.KISHORE
RESPONDENT(S):
1. RAJU S, T.C. 21/610, KUNNUMPURAM, MANACAUD, MANACAUD VILLAGE, THIRUVANANTHAPURAM.
2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADVS. SRI.MANU V.
SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
R2 BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
B. KEMAL PASHA, J.
................................................................ Crl. Appeal No. 439 of 2009
............................................................... Dated this the 24th day of October, 2016
J U D G M E N T
Challenging the judgment of acquittal passed by the Judicial First Class Magistrate's Court-X, Thiruvananthapuram in S.T No.1112/2006, the complainant before the court below 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 1st respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'N.I. Act').
Crl. Appeal No. 439 of 2009
-: 2 :-
138(b) of the N.I. Act was issued to the accused, which returned unclaimed.
were examined and Exts.P1 to P5 were marked. On the side of the accused DW1 was examined and Ext.D1 was marked. The court below found the accused not guilty of the offence under Section 138 of the N.I. Act and acquitted the accused under Section 255(1) Cr.P.C. through the impugned judgment.
Crl. Appeal No. 439 of 2009
-: 3 :-
entitled to the presumptions under Sections 118(a) and 138 of the N.I. Act.
stated with regard to the date on which an amount of ₹ 2,00,000/- was allegedly borrowed by the accused from the complainant. Even the place of transaction has not been mentioned. The only case of the complainant is that Ext.D1 cheque was issued in discharge of the liability of the accused towards the complainant to pay an amount of ₹2,00,000/-. Apart from that the details of the transaction have not been mentioned.
Crl. Appeal No. 439 of 2009
-: 4 :-
was demanded from the accused by the complainant through Ext.D1 lawyer's notice.
as is evident from the deposition of PW1 before the court below is that the amount involved in this case was borrowed
on 05.06.2006. Even for the recovery of the amount allegedly borrowed by the accused from the complainant on 23.08.2005, the complainant had to resort to legal steps. Ext.D1 lawyer's notice was caused to be issued by the complainant through his lawyer. In such case, the version of PW1 that again an amount of ₹2,00,000/- was lent by the complainant to the accused on 05.06.2006, cannot be believed.
Crl. Appeal No. 439 of 2009 -: 5 :-
though the said amount was discharged, and the matter was settled, the complainant did not return the cheque leaf and has chosen to file the present complaint by misusing the said cheque leaf.
In the result, this Criminal Appeal is dismissed.
Sd/- B. KEMAL PASHA, JUDGE.
Ul/-`
// true copy //
P.S. to Judge.
2 issues framed by the court
Whether the accused was acquitted of the offence under Section 138 of the N.I. Act for lack of proof of consideration.
Whether the appeal against the judgment of acquittal has any merit.
3 provisions across 2 enactments
K.VIJAYAN
RAJU S
STATE OF KERALA
B. KEMAL PASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
