Dismissed

Ramesh Kumar T.S. v. a.M.Thankachan

Kerala HC10 Aug 2016CRL.A/644/2009

Case brief

AI extract

What is this about?

In this criminal appeal challenging an acquittal under Section 138 of the Negotiable Instruments Act, the High Court of Kerala held that the accused adduced sufficient evidence proving the lack of any transaction with the complainant. Relying on witness testimony that the cheque was procured through deception for a fraudulent loan application, the Court affirmed the trial court's finding that the

What did the court decide?

The Criminal Appeal is dismissed; the impugned judgment of acquittal stands affirmed.

Ramesh Kumar T.S. Vs a.M.Thankachan — 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 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938

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CRL.A.No. 644 of 2009 (A)

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ST.50/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THODUPUZHA DATED 26-11-2008

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PETITIONER/COMPLAINANT:

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1. RAMESH KUMAR T.S., S/O.SANKARAPILLAI, THACHUPARAMBIL HOUSE, THODUPUZHA.

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BY ADVS.SRI.P.P.THAJUDEEN SRI.MANSOOR.B.H.

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RESPONDENT(S)/ACCUSED:

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1. A.M.THANKACHAN, AGED 40 YEARS, AAMIKKATTUDUKIYIL HOUSE, CHEENIKUZHY P.O., THODUPUZHA.

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

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R1 BY ADV. SRI.N.K.SHYJU R2 BY PUBLIC PROSECUTOR SMT.P.MAYA

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 644 of 2009

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............................................................... Dated this the 10^th day of August, 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-II, Thodupuzha in S.T.No.50/2008, 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 first respondent herein as accused, alleging an offence punishable under Section 138 of the N.I. Act.

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The case of the complainant is that on 02.07.2007 the accused borrowed an amount of ₹80,000/from him by promising to repay the same within one month, and when the complainant demanded the amount, the accused issued Ext.P1 cheque dated 02.08.2007, which on presentation returned dishonoured for insufficiency of funds

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Crl. Appeal No. 644 of 2009

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-: 2 :-

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in the accounts of the accused. Even though a demand notice as contemplated under Section 138(b) of the N.I. Act was caused to be issued to the accused, it evoked a response in the nature of a reply notice whereby the transaction was denied. No amount has been paid and hence the complaint.

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On the side of the complainant PW1 was

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examined and Exts.P1 to P5 were marked. On the side of the accused DW1 to DW4 were examined and Exts.D1 to D3 were 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.

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Heard the learned counsel for the appellant. There is no representation for the 1^st respondent.

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The learned counsel for the appellant has argued

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that there is sufficient evidence under Section 138 of the N.I. Act and the court below ought not to have acquitted the

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Crl. Appeal No. 644 of 2009

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-: 3 :-

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accused.

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This is a case wherein the accused has adduced

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positive evidence to show that the case forwarded by the complainant is false. Even though the complainant has admitted that a reply notice was received from the accused as against the notice of demand issued at the instance of the complainant, the complainant has not cared to produce the said reply notice. The reply notice was issued by the accused himself and not through a lawyer. In Ext.D1, the accused had specifically contended that he had no acquaintance with the complainant, and also that he had no transaction with the complainant. According to the accused, one Binu who was one of his neighbours obtained the company of the accused on 02.11.2005. The said Binu wanted to purchase a 407 lorry. The said Binu provided liquor to the accused and the accused became fully drunken. In that mood, the said Binu took him to the Catholic Syrian Bank, Vannapuram and caused to open an

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Crl. Appeal No. 644 of 2009 -: 4 :-

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account of the accused. 10 cheque leaves were obtained from the Bank. The said cheque leaves, along with his identity card, some papers and some blank signed stamp papers in which the signatures of the accused were affixed, were handed over to one Rasheed who was the middleman for the vehicle transaction. Thereafter, the said Rasheed handed over all the said documents including 10 cheque leaves of the accused to the Muthoot Bank, Thodupuzha. The wife of the accused came to know about it and went to Bank and complained about it. On account of her stiff resistance, the loan was denied by the Muthoot Bank, Thodupuzha to the said Binu. Then the said Rasheed obtained all the said documents including the said 10 cheque leaves from the Bank and took it away and thereafter, handed over one of such cheque leaves to the complainant, who presented the same at the Bank and caused to issue a notice under Section 138(b) of the N.I. Act.

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Crl. Appeal No. 644 of 2009

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-: 5 :-

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Apart from issuing the reply notice in the above

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lines, the accused has examined DWs.1 to 4. According to him, on 02.11.2005 he had approached the aforesaid

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Rasheed for getting a loan arranged. At that time, along with the accused one Jabbar and Binu were present with the said Rasheed. Binu wanted to obtain a loan for purchasing a vehicle. The accused and the said Jabbar opened accounts at the Catholic Syrian Bank, Vannapuram and obtained 10 cheque leaves each and the same were obtained by Rasheed. Rasheed entrusted the same to the Muthoot Bank. Thereafter, DW1 came to know that the wife of the accused had complained about the misuse of the cheques of her husband, at the Muthoot Bankers thereby they refused to disburse the loan. The documents were obtained by the said Rasheed.

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DW2 was the marketing executive of Muthoot

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Lease and Finance, Thodupuzha. He clearly proved the case forwarded by the accused through Ext.D1. According

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Crl. Appeal No. 644 of 2009

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-: 6 :-

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to him, the accused along with Rasheed, Jabbar and Binu had approached the Bank for obtaining a loan for the purchase of a 407 Tempo XL. Along with the other records of the accused and signed cheque leaves of 10 Nos. each of the accused and Jabbar, were obtained by the Bank. On the next day, the wife of the accused appeared at the Bank and demanded that the loan should not be released. Consequently, the loan was refused. After three days, Rasheed approached the Bank and took back the entire documents. After two or three weeks, the accused came to the Bank and demanded the cheque leaves. The Bank had informed the accused that the said signed cheque leaves were returned to Rasheed.

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Since the complainant had contended that DW2 was not employed at Muthoot Bankers, DW4 Branch Manager of Muthoot Bankers was examined to prove that DW2 was the marketing executive of the said bank. He admitted that DW2 was the marketing executive of their

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Crl. Appeal No. 644 of 2009

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Bank. He proved the case of the accused. According to him, on the objection of the wife of the accused, the loan was denied and the documents were ordered to be returned.

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DW3 was the Bank Manager of Catholic Syrian

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Bank, Vannapuram. He has deposed that on 02.11.2005 an account was opened by the accused at the Bank and on the same day, 10 cheque leaves from No.122691 to 122700 were issued to the accused. Ext.P1 cheque is Cheque No.122691.

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From the aforesaid evidence, it has clearly come

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out that the contentions resorted to by the accused in Ext.P1 reply notice are perfectly correct. It has clearly come out that the accused had no transactions with PW1 and that PW1 is none other than the name lender of the aforesaid Rasheed and Binu. Ext.P1 is not supported by consideration. A complaint for an offence under Section 138 of the N.I. Act at the instance of the complainant herein is

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Crl. Appeal No. 644 of 2009

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not legally sustainable in this case. Hence, the impugned judgment does not suffer from any illegality. The court below has considered the evidence in its correct perspective and

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has arrived at the correct conclusion. There is absolutely nothing to interfere with the impugned judgment. Therefore, this Crl. Appeal is only to be dismissed and I do so.

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In the result, this Criminal Appeal is dismissed.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Ramesh Kumar T.S. v. a.M.Thankachan

Case brief

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Ramesh Kumar T.S. v. a.M.Thankachan

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