Allowed

The Kottayam Dist.Co-Op.Bank v. Rajesh M.S.

Kerala HC26 Sept 2016CRL.A/553/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against an order of acquittal in a cheque bounce case. The court reversed the lower court's decision, held the accused guilty under Section 138 of the Negotiable Instruments Act, and convicted him.

What did the court decide?

The accused was convicted under Section 138 of the N.I. Act, sentenced to imprisonment till the rising of the court, and ordered to pay compensation of ₹50,000/- with default imprisonment of six month

The Kottayam Dist.Co-Op.Bank Vs Rajesh M.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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MONDAY, THE 26TH DAY OF SEPTEMBER 2016/4TH ASWINA, 1938

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CRL.A.No. 553 of 2009 ( )

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AGAINST THE ORDER/JUDGMENT IN ST.2496/2006 of J.M.F.C.,KOTTAYAM

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APPELLANT(S)/PETITIONER/COMPLAINANT:

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KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS MANAGER GANDHI NAGAR BRANCH, KOTTAYAM.

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BY ADVS.SRI.T.A.SHAJI, SC, KOTTAYAM DIST.COOP.BANK

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SRI.SUNIL CYRIAC, SC, DIST.CO-OP BANK, KOTTAYAM

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RESPONDENT(S)/ACCUSED AND STATE:

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RAJESH.M.S, MANJULLIMALIYIL HOUSE, PERUMBAIKKAD P.O., KOTTAYAM.

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

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R,R1 BY ADV. SRI.C.A.CHACKO R2 BY SR. 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:

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B. KEMAL PASHA, J.

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Crl. Appeal No.553 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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~ ~ ~ ~ ~ ~ ~ ~ ~

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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. Case No.2496/2006, the complainant before the court below has come up in appeal. The complainant is the Gandhi Nagar Branch of the Kottayam District Co-operative Bank Limited. The case of the complainant is that the accused had availed a loan of ₹50,000/- from the complainant on 29.06.2004. The accused had agreed to repay the amount by way of daily repayment of ₹75/-. DW2 was the collection agent. When the loan fell in arrears, the

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Crl.A.553/2009

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: 2 :

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complainant demanded the discharge of the loan amount by the accused. The accused appeared at the bank and issued Ext.P1 cheque for ₹42,423/- in discharge of his liability. The said 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 caused to be issued by the complainant. Even though the accused received the notice, it evoked no response and hence, the complaint.

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On the side of the complainant, PW1 Branch Manager of the Co-operative Bank was examined and Exts.P1 to P8 were marked. On the side of the accused, DW1 and DW2 were examined and Exts.D1 and D2 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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Crl.A.553/2009

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: 3 :

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Heard learned counsel for the appellant and

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learned counsel for the 1^st respondent.

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Learned counsel for the appellant has argued that the judgment of acquittal passed by the court below is not supported by any proper reason. Learned counsel for the 1^st respondent has argued that the complainant has no consistent case with regard to the balance amount due from the accused to the complainant bank. It is also argued that Ext.P1 cheque was issued in the form of a blank signed cheque leaf at the time when the accused had availed the loan. It is the further case of the 1^st respondent that even though the sanctioned loan amount was ₹50,000/-, he was

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paid an amount of ₹45,000/- only. It has been further argued that the 1^st respondent had repaid an amount of ₹16,975/-.

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On a perusal of the impugned judgment, it is evident that all the observations made by the court below for

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Crl.A.553/2009

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: 4 :

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acquitting the accused are not legally sustainable. This is a case wherein the accused had not even cared to issue a reply on getting the demand notice. The accused had no case that the amount covered by the cheque was not due from him. Had there been a contention that the cheque was issued in the form of a blank signed cheque leaf, necessarily in the normal course, he would have issued a reply notice. Here, in this particular case, the accused, when examined as PW1, had no explanation as to why he had not issued a reply notice. Initially, he had gone to the extent of saying that he had not received the demand notice. When he was confronted with Ext.P5 postal acknowledgment card, he admitted his signature in Ext.P5.

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According to PW1, the accused brought a filled in cheque leaf and affixed his signature in his presence. According to PW1, he did not know that the contents in the cheque were filled in the handwriting of the accused or

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Crl.A.553/2009

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: 5 :

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someone else. At the same time, it was specifically stated by PW1 that a filled in cheque leaf was brought by the accused and the accused affixed his signature in it in his presence. The court below has found fault with the bank in accepting such a cheque.

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DW2 is the collection agent, who proved Ext.D1. According to DW2, the entries in Ext.D1 were made by him. At the same time, he has deposed that Ext.D1 was always in the custody of the accused. On accepting repayment, the bank used to issue receipts weekly. When this aspect was put to DW1 in cross-examination, DW1 has initially admitted that receipts were being issued. Subsequently, he stated that he did not get any receipt. Had there been a repayment as shown in Ext.D1, the accused could have produced the receipts obtained from the bank. Ext.D1 cannot be relied on because of the admitted fact that there are over writings in almost all the entries. DW2 has also admitted that the

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Crl.A.553/2009

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: 6 :

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amount was not quantified after 15.03.2005. At the same time, payments of ₹75/- each were shown for some of the days commencing from 17.03.2005 till 30.05.2005. In the absence of receipts from the bank, the said entries in Ext.D1 cannot be relied on.

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When the accused was examined under Section 313 Cr.P.C., the accused had nothing more to say. Had there been a contention that Ext.P1 was not supported by consideration and that Ext.P1 was issued in the form of a signed blank cheque leaf, he would have stated those aspects when an opportunity was granted to him under Section 313 Cr.P.C. to explain those circumstances. From

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the absence of reply notice in this case, the absence of explanation when examined under Section 313 Cr.P.C. and the aforesaid contradictions in the evidence of DW1 and DW2, the case attempted to be set up by the accused before the court below has become unbelievable. Ext.P1 is

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Crl.A.553/2009

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: 7 :

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proved to be one supported by consideration. All the ingredients to invite an offence under Section 138 of the N.I. Act have been clearly brought out in the evidence before the court below. There was no reason for the court below to acquit the accused. The acquittal of the accused in a case like this has resulted in substantial miscarriage of justice and, therefore, the impugned judgment is liable to be reversed.

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The accused is found guilty of the offence under Section 138 of the N.I. Act. At this belated stage, this Court is of the view that a long term of imprisonment need not be imposed on the accused. This Court is satisfied that a sentence of imprisonment till the rising of the court and an order to pay a compensation of ₹50,000/- to the complainant by the accused within three months from today, in default to undergo a sentence of simple imprisonment for six months, will meet the ends of justice in this case.

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Crl.A.553/2009

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: 8 :

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In the result, this Criminal Appeal is allowed and the impugned judgment is reversed. The accused is found guilty of the offence under Section 138 of the N.I. Act, and is convicted thereunder. The accused is sentenced to undergo a sentence of imprisonment till the rising of the court and to pay a compensation of ₹50,000/- to the complainant within three months from today, and in default, to undergo simple imprisonment for six months.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/26/09

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// True Copy //

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PA to Judge

The Kottayam Dist.Co-Op.Bank v. Rajesh M.S.

Case brief

What is this about?

What did the court decide?

The Kottayam Dist.Co-Op.Bank v. Rajesh M.S.

Case brief

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