Partly allowed

Biju Kuriakose v. Kamal Kumar and Others

Kerala HC8 Aug 2016CRL.A/645/2009

Case brief

AI extract

What is this about?

The Kerala High Court allowed the criminal appeal against an acquittal for cheating and criminal conspiracy involving a dishonoured cheque. The Court set aside the lower court's judgment and remitted the matter for fresh disposal, directing the lower court to consider the reply notice and evidence regarding signature discrepancies.

What did the court decide?

Allowed appeal, set aside impugned judgment of acquittal, and remitted matter to lower court for fresh disposal.

Biju Kuriakose Vs Kamal Kumar and Others — 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 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

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CRL.A.No. 645 of 2009 (A)

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AGAINST THE JUDGMENT IN CC. NO.101/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOTTAYAM DATED 21/01/2009.

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APPELLANT/COMPLAINANT:

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BIJU KURIAKOSE, UMMACHERIL HOUSE, KURICHY. P.O., KOTTAYAM.

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BY ADV. SRI.VIJAI MATHEWS.

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RESPONDENTS/ACCUSED 1 & 2 AND STATE:

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1. KAMAL KUMAR, VANAJAM HOUSE, VELLAKINAR WARD, ALAPPUZHA.

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2. USHA. J, -DO-.

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

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R3 BY PUBLIC PROSECUTOR SMT.P. MAYA.

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

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rs.

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B.KEMAL PASHA, J.

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

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Crl.A. No.645 of 2009

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======================= Dated this the 8^th day of August, 2016

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JUDGMENT

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Dissatisfied with the judgment of acquittal passed by

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the Judicial First Class Magistrate's Court-III, Kottayam in C.C.No.101/2005, the complainant before the court below has come up in appeal. The complaint before the court below was filed by the appellant as complainant, against respondents 1 and 2 herein as accused, alleging an offence punishable under Section 420 read with Section 34 IPC.

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The case of the complainant is that both the accused, who are husband and wife approached the complainant at hotel Suryas at Kottayam on 14.01.2004 and borrowed an amount of 1,20,000/-, on agreeing to repay₹ the same on 14.02.2004. The complainant parted with the amount to the accused on the specific promise by the

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Crl.A. No.645 of 2009

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accused that the amount would be repaid on 14.02.2004, through Ext.P1 cheque. Ext.P1 cheque was issued by the 1^st accused, and the 1^st accused affixed the signature in the cheque in the presence of the complainant. When the complainant presented the said cheque, it returned dishonoured with the dictums “drawer's signatures differs” and “funds insufficient.” On enquiries made by the complainant, it was revealed that Ext.P1 cheque was one issued by the 1^st accused from the accounts of the 2^nd accused, deliberately with intent to defraud and cheat the complainant. Even though a notice demanding the amount was issued, the amount was not paid. At the same time, the accused have resorted to false and untenable contentions through a reply notice caused to be issued through a lawyer.

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The complaint was filed by alleging the offence punishable under Section 420 IPC. The sworn statement of the complainant was recorded and the court below took

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Crl.A. No.645 of 2009

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cognizance for the offence under Section 420 read with Section 34 IPC. On the side of the complainant, PWs.1 to 3 were examined and Exts.P1 to P8 were marked. The accused were examined under Section 313 Cr.P.C.

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The 1^st accused contended as follows:

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“I am seeing the complainant for the first time in court. There was a transaction with PW2 in respect of a music system. Since a small amount was due, a cheque without signature was issued. Even though the amount was discharged, the cheque was not returned. I do not know the complainant”.

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The 2^nd accused contended as follows:

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“I am a house-wife. I have not made any financial transaction.”

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No defence evidence was adduced. The court below found

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the accused not guilty of the offence punishable under Section 420 IPC and acquitted them under Section 248(1) Cr.P.C.

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Heard the learned counsel for the appellant. There

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Crl.A. No.645 of 2009

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is no representation for respondents 1 and 2.

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The learned counsel for the appellant has argued that there is no reason for the court below to acquit the accused under Section 248(1) Cr.P.C. in this case. According to the learned counsel for the appellant, the court below has not considered the evidence in its correct perspective. It has been pointed out that in the reply notice, the accused had no contention that the signature affixed in Ext.P1 cheque was not the signature of the 1^st accused. It has also been pointed out that the 1^st accused had deliberately affixed a totally different signature in Ext.P5 postal acknowledgment card. It has also been pointed out that the 1^st accused has affixed totally different signature when charges were framed before the court below and also totally different signatures in the different pages of his examination under Section 313 Cr.P.C.

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This Court has perused the signatures of the accused when charges were framed by the court below and

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Crl.A. No.645 of 2009

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also when he was examined under Section 313 Cr.P.C. It is evident that the signature in Ext.P1 cheque is the one affixed by the 1^st accused. The handwriting in the signature in Ext.P1 is almost the same as the handwriting in the signature in his statement under Section 313 Cr.P.C. as well as the signature affixed by him when charges were framed. But, there is a deliberate attempt from the part of the 1^st accused to affix different signatures. He has deliberately avoided the underlining in some signatures; whereas, he had voluntarily affixed such underlining in some of the signatures. In the signature in Ext.P1 cheque, two dots are there beneath the underlining. At the same time, he has avoided those two dots in his signatures when examined under Section 313 Cr.P.C. and when charges were framed. In Ext.P5 postal acknowledgment card, he has simply written his name with an underline. This Court has verified the vakalath filed by both the accused before the court below. He has affixed the very same signature with

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Crl.A. No.645 of 2009

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underlining and two dots as the one affixed in Ext.P1 cheque in the vakalath. On a verification of the signature of the 1^st accused in the vakalath, it has become clear that the signature affixed in Ext.P1 is the signature of the 1^st accused. It is not easy to imitate the said signature. There is no meaning in contending that the signature in Ext.P1 was not affixed by the 1^st accused.

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The court below has failed to note down the aforesaid vital aspects. It is evident that in the reply notice, the accused had not contended that the 1^st accused had not affixed his signature in Ext.P1. He came forwarded with such a contention only in the cross examination of PW1 and also when he was examined under Section 313 Cr.P.C. In such case, the appellant ought to have produced and proved the reply notice as such. Definitely, it would militate against the case of the 1^st accused.

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Over and above it, in the reply notice, what has been specifically contended was that the 1^st accused had

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borrowed an amount of 25,000/- from PW2, for which, he₹ had issued a blank cheque. At the same time, when examined under Section 313 Cr.P.C., the contention of the 1^st accused was that he had purchased a music system from PW2, and towards that transaction, he owed some amount, for which, a blank unsigned cheque was issued. In such circumstances, the complainant ought to have produced and proved the reply notice issued at the instance of the accused, in the case before the court below.

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In all other respects, the complainant could prove that the cheque was issued by the 1^st accused. When the cheque was issued by the 1^st accused and signature was affixed by him in it and the cheque leaf made use of for the same was one obtained from his wife's account, that is, the accounts of the 2^nd accused, such an act could invite the offence under Section 420 IPC. The court below has lost sight of this vital aspect and has passed the impugned judgment without making any specific observations at all.

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Crl.A. No.645 of 2009

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The impugned judgment is not clear. The court below has not met the evidence adduced by the complainant. The court below has failed to examine the documents available in the case to note down the difference in the signatures deliberately made by the 1^st accused. The court below has failed to compare the signature in Ext.P1 with the signature in the vakalath.

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Here, before this Court, the accused are not represented. In such case, this Court is of the view that by setting aside the impugned judgment, the matter has to be remitted to the court below for fresh disposal in accordance with law. The court below shall give an opportunity to the complainant to produce and prove the reply notice issued at the instance of the accused in the case. The court below shall give an opportunity to the complainant to adduce further evidence, if any.

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In the result, this appeal is allowed and the impugned judgment is set aside. The matter is remitted to the court

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Crl.A. No.645 of 2009

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below for fresh disposal in accordance with law, based on the observations made above. The appellant shall appear before the court below on 25.08.2016.

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Sd/- B.KEMAL PASHA, JUDGE

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stu

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//True copy//

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P.A. to Judge.

Biju Kuriakose v. Kamal Kumar and Others

Case brief

What is this about?

What did the court decide?

Biju Kuriakose v. Kamal Kumar and Others

Case brief

What is this about?

What did the court decide?

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