Partly allowed

Nissar v. Manoj.P.S.

Kerala HC26 Oct 2016CRL.A/55/2009

Case brief

AI extract

What is this about?

In this criminal appeal against a judgment of acquittal under Section 138 NI Act, the appellant challenged the trial court's failure to apply statutory presumptions regarding consideration. The High Court set aside the acquittal, holding the trial court erred by not allowing the presume applications and for relying on unsubstantial discharge evidence.

What did the court decide?

The impugned judgment of acquittal is set aside; the complaint is restored and remitted to the court below for fresh disposal in accordance with law.

Nissar Vs Manoj.P.S. — 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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WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938

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CRL.A.No. 55 of 2009

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ST 1076/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTTAYAM

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APPELLANT(S)/COMPLAINANT:

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NISSAR, S/O.ABDUL ASSIS, KINGA ACQUARIUM, SASTHRI ROAD, KOTTAYAM.

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BY ADVS.SRI.V.N.SASIDHARAN

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SRI.SANTHOSH THOMAS KANDAMCHIRA

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RESPONDENT(S)/ACCUSED:

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1. MANOJ.P.S., PUTHENVILLA HOUSE, COLLECTORATE PO., KOTTAYAM.

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

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R2 BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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Crl. Appeal No.55 of 2009

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Dated this the 26^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-I, Kottayam in S.T. No.1076/2006, 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, in discharge of his liability to pay an amount of ₹1,50,000/- to the complainant, issued Ext.P1 cheque dated 13.01.2006. The said cheque, when presented, returned dishonoured for insufficiency of funds in

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Crl.A.55/2009

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: 2 :

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the accounts of the accused. Notice caused to be issued under Section 138(b) of the N.I. Act evoked a response in the form of Ext.P7 reply notice, wherein false contentions were resorted to by the accused, and hence the complaint.

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On the side of the complainant, PW1 and PW2 were examined and Exts.P1 to P9 were marked. On the side of the accused, DWs 1 to 3 were examined and Exts.D1 to D3 were marked. The court below found the accused not guilty of the offence punishable under Section 138 of the N.I. Act and acquitted him under Section 255(1) Cr.P.C. through the impugned judgment.

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Heard learned counsel for the appellant. In spite of notice, there is no representation for the 1^st respondent.

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Learned counsel for the appellant has argued that the court below ought not to have doubted the consideration of Ext.P1 cheque when the amount was paid by the complainant to the accused, through a bank transaction, which stands proved through PW2. It has also

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Crl.A.55/2009

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: 3 :

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been argued that the court below has passed the judgment of acquittal without any valid reasons.

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It is true that either in the complaint or in the affidavit in lieu of chief examination, the complainant has not narrated the details of the true transaction. At the same time, it has come out in evidence through Exts.P8 and P9 that an amount of ₹1,50,000/- was paid by the complainant to the accused. PW2 has proved that it was the accused, who approached the bank with the original of Ext.P8 cheque and got it encashed. At that time, the bank officials could notice a difference in the signature of the complainant in the original of Ext.P8 cheque and, therefore, PW2 called the complainant to the bank and ascertained that the said cheque was issued by him to the accused. It was by presenting the said cheque, the accused obtained an amount of ₹1,50,000/- from the bank.

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The court below has found that the contention forwarded by the accused that he had borrowed an amount

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of ₹80,000/- only from the complainant is probable and correct. The said observations made by the court below are not based on any proper evidence. It seems that the court below has heavily relied on the evidence of DWs 1 to 3 to the effect that the accused was heavily indebted to various financiers and thereby the accused had to shift his house on account of the frequent threats from such unscrupulous financiers. The court below has believed the version of the accused that the accused had borrowed an amount of ₹80,000/- only from the complainant. Ext.P9 bank accounts of the appellant does not show any such transaction. At the same time, it clearly shows that the amount of ₹1,50,000/was obtained through the presentation of Ext.P8 cheque by the accused from the bank, from the accounts of the complainant on 20.06.2005. In fact, it stands proved that there was a transaction in between PW1 and the accused wherein PW1 paid an amount of ₹1,50,000/- to the accused through bank. Matters being so, that aspect itself enables

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Crl.A.55/2009

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: 5 :

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the appellant to have recourse to the presumptions under Sections 118(a) and 139 of the N.I. Act. It is for the accused to rebut such presumptions. Without considering the presumptions under Sections 118(a) and 139 of the N.I.Act, the court below has chosen to throw away the complaint and to acquit the accused.

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Over and above it, the accused has pleaded a partial discharge of the amount borrowed by him. It is for the accused to prove such discharge. Ext.D2 cannot be relied on unless and until it is proved that the handwritings in Ext.D2 are that of the complainant. Matters being so, the judgment of acquittal passed by the court below has resulted in substantial miscarriage of justice and, therefore, the same is liable to be set aside.

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In the result, this Criminal Appeal is allowed and the impugned judgment is set aside. The complaint is restored and is remitted to the court below for fresh disposal in accordance with law, after giving an opportunity to the

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Crl.A.55/2009

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accused to rebut the presumptions under Sections 118(a) and 139 of the N.I. Act and also to prove his plea of discharge. The court below shall give an opportunity to the complainant also in case the complainant wants to adduce any further evidence. The parties shall appear before the court below on 21.11.2016. Since there is no appearance for the 1^st respondent before this Court, the court below shall issue summons to the accused.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/26/10

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// True Copy //

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PA to Judge

Nissar v. Manoj.P.S.

Case brief

What is this about?

What did the court decide?

Nissar v. Manoj.P.S.

Case brief

What is this about?

What did the court decide?

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