Allowed

Ruby Enterprises v. Jojo Mathew

Kerala HC29 Sept 2016CRL.A/485/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed the appeal against acquittal in two cases involving cheque dishonour under Section 138 of the NI Act. The Court held that presumptions apply despite lack of invoices, convicted the accused, and sentenced him to imprisonment with compensation orders.

What did the court decide?

Accused convicted under Section 138 NI Act; sentenced to imprisonment till rising of the court; ordered to pay compensation of Rs. 20,000 and Rs. 25,864 respectively with alternative imprisonment.

Ruby Enterprises Vs Jojo Mathew — 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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THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938

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CRL.A.No. 485 of 2009 (A)

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ST 99/2007 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT- II, CHENGANACHERRY DATED 12-08-2008

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APPELLANT/COMPLAINANT:

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RUBY ENTERPRISES,

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REPRESENTED BY ITS POWER OF ATTORNEY HOLDER AND CHIEF EXECUTIVE THOMAS MATHEW, MARATTUKULAM HOUSE, RUBY NAGAR, CHANGANACHERRY.

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BY ADV. SRI.ASOK M.CHERIAN

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RESPONDENTS/ACCUSED & STATE:

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1. JOJO MATHEW, PROPRIETOR,

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MIDCO TYRES,

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VADAKKEKUNNEL, PALA P.O., PALA.

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

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R1 BY ADV. SRI.P.C.HARIDAS

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R2 BY SR.PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-09-2016, ALONG WITH CRL.APPEAL NO.491/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/30/9/16

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B. KEMAL PASHA, J

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

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Crl.Appeal Nos.485 & 491 of 2009 ======================= Dated this the 29^th day of September, 2016

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The appellant, Partnership Firm, challenges the common judgment in S.T.No.99 of 2007 and S.T.No.100 of 2007 of the Judicial First Class Magistrate’s Court-II, Changanacherry. Both the cases before the court below have arisen from two private complaints 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.

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The case of the complainant is that the complainant, Partnership Firm, is dealing in tread rubber and the accused used to purchase tread rubber on credit from them. An amount of `85,864/- was due to the complainant from the accused, in discharge of

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Crl.A.Nos.485 & 491/09 2

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which, the accused issued Exhibit-P3 cheque dated 15.03.2006 for `40,000/- and Exhibit-P4 cheque dated 31.03.2006 for 45,864/-. The said cheques, when presented, returned dishonoured for insufficiency of the funds in the account of the accused. Notices contemplated under Section 138(b) of the Negotiable Instruments Act were issued to the accused. Even though the accused received the notices, it evoked no response and hence the complaints.

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On the side of the complainant, PW1 was examined and Exhibits-P1 to P15 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. and hence, these appeals.

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The learned counsel for the appellant has

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argued that the court below has passed the common

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Crl.A.Nos.485 & 491/09 3

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judgment of acquittals in both the cases without appreciating the evidence of PW1. It has also been argued that the court below has not considered the presumptions available to the complainant under Sections 118(a) and 139 of the Negotiable Instruments Act. Per contra, the learned counsel for the 1^st respondent has argued that the impugned judgment passed by the court below does not call for any interference at all.

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For passing the impugned judgment of acquittals, the court below has mainly relied on the fact that the complainant has not produced the bills or invoices to prove the transactions between the parties. The court below has failed to take note of the fact that the complainant is entitled to the presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act, when prima facie materials are placed before the court below to bring

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Crl.A.Nos.485 & 491/09 4

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out an offence under Section 138 of the Negotiable Instruments Act. Here, in this particular case, two cheques were issued; one for 40,000/- and the other one for 45,864/-. It is the admitted case of PW1 that during the pendency of the complaints before the court below an amount of 40,000/- was paid by the accused to the complainant. It is the case of the accused that an amount of 40,000/- only was due and the said amount was discharged by them. When such a contention of discharge has been resorted to by the accused, the court below has gone wrong in expecting further documents from the part of the complainant to prove the transactions. There is sufficient evidence to bring out the presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act in these cases.

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The accused has not adduced any evidence to rebut the said presumptions. The common judgment of acquittals passed by the court below has

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Crl.A.Nos.485 & 491/09 5

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resulted in substantial miscarriage of justice. The judgment is liable to be reversed. It stands proved that the 1^st respondent has committed the offence punishable under Section 138 of the Negotiable Instruments Act in both the cases.

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Regarding sentence, this Court is of the view that, at this belated stage, it is not just and proper in the interest of justice to impose a long term of imprisonment on the accused. The part payment of 40,000/- made by the accused has also to be taken note of. A further fact that the appellant is not available for a mediation has also to be taken note of. This Court is satisfied that in Crl.Appeal No.485 of 2009, which as arisen from S.T.No.99 of 2007, a sentence of imprisonment till the rising of the court and an order to pay a compensation of 20,000/(Rupees Twenty Thousand only) to the complainant, within in a period of three months from today, in

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Crl.A.Nos.485 & 491/09 6

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default, to undergo simple imprisonment for three more months, will meet the ends of justice.

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At the same time, in Crl.Appeal No.491 of 2009, which has arisen from S.T.No.100 of 2007, a sentence of imprisonment till the rising of the court and an order to pay a compensation of `25,864/(Rupees Twenty Five Thousand Eight Hundred and Sixty Four only) to the complainant, within in a period of three months from today, in default, to undergo simple imprisonment for three more months, will meet the ends of justice.

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In the result, both these Crl.Appeals are allowed and the impugned common judgment of acquittals is reversed. The accused is found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and is convicted thereunder and sentenced as follows:

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In Crl.Appeal No.485 of 2009, which as arisen

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Crl.A.Nos.485 & 491/09

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from S.T.No.99 of 2007, the appellant is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of `20,000/- (Rupees Twenty Thousand only) to the complainant, within in a period of three months from today, in default, to undergo simple imprisonment for three more months.

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In Crl.Appeal No.491 of 2009, which has arisen from S.T.No.100 of 2007, The appellant is sentenced to undergo imprisonment till the rising of the court and to pay a compensation of `25,864/- (Rupees Twenty Five Thousand Eight Hundred and Sixty Four only) to the complainant, within in a period of three months from today, in default, to undergo simple imprisonment for three more months.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/29/9/16

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// True Copy //

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P.A. To Judge

Ruby Enterprises v. Jojo Mathew

Case brief

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Ruby Enterprises v. Jojo Mathew

Case brief

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