Allowed

The Kottayam Dist. Co-Op. Bank v. T.K.Babu & Another

Kerala HC19 Dec 2016CRL.A/663/2009

Case brief

AI extract

What is this about?

Bank appealed acquittal under S. 138 NI Act. High Court set aside acquittal, observing it was arbitrary as accused failed to rebut statutory presumptions. Matter remitted for accused to adduce evidence.

What did the court decide?

Impugned judgment of acquittal set aside; complaint restored and remitted to court below for opportunity to accused to rebut presumptions under S. 118(a) and 139 NI Act.

The Kottayam Dist. Co-Op. Bank Vs T.K.Babu & Another — 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 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938

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CRL.A.No. 663 of 2009 ( )

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ST 87/2007 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-I, KOTTAYAM

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APPELLANT/COMPLAINANT:

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

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BY ADVS.SRI.T.A.SHAJI, SC, KOTTAYAM DISTRICT COOPERATIVE BANK LTD. SRI.SUNIL CYRIAC, SC, KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD.

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RESPONDENTS/ACCUSED & STATE:

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1. T.K.BABU,THAZHATHOL HOUSE, AMAYANNOOR P.O. KOTTAYAM.

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

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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 19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/20/12/16

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B. KEMAL PASHA, J

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================= Crl.Appeal No.663 of 2009

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

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Dated this the 19^th day of December, 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-I, Kottayam, in S.T.No.87 of 2007, the complainant before the court below has come up in appeal.

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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.

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The complainant is the Kottayam District Co-operative Bank Ltd. represented by the Branch Manager of Manarcadu Branch, Kottayam. The case of the complainant is that the accused had availed a loan

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Crl.A.No.663 of 2009 2

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from the complainant Bank and thereafter, issued Exhibit-P1 cheque for `33,300/- towards the discharge of his liability towards the loan account. Exhibit-P1 cheque, when presented, returned dishonoured for insufficiency of funds in the account of the accused. The notice caused to be issued to the accused under Section 138(b) of the Negotiable Instruments Act did not evoke any response and hence the complaint.

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On the side of the complainant, PW1 was examined and Exhibits-P1 to P8 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. through the impugned judgment, and hence this appeal.

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Heard the learned counsel for the appellant.

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There is no representation for the 1^st respondent.

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Crl.A.No.663 of 2009 3

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The learned counsel for the appellant has argued that the impugned judgment of acquittal is not supported by any cogent reasons. It has been argued that unnecessarily the court below has acquitted the accused.

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The case of the accused, as is evident from a statement in writing filed by him at the time of his examination under Section 313 Cr.P.C., was that the Bank officials had obtained three blank signed cheque leaves from him at the time when the loan was availed. At the same time, he has no case that the amount covered by the cheque was not due from him. In the statement in writing, it has been mentioned that the cheque was prepared for a higher amount than the amount due from him. This is a case, wherein, the accused has not even cared to issue a reply on getting the demand notice. The case forwarded by the accused that the Bank had obtained three blank

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Crl.A.No.663 of 2009

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signed cheque leaves from him, is nothing but an after thought.

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Through the examination of PW1 and from Exhibits-P1 to P8, the complainant have placed sufficient matters before the court below to invite the presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act. The court below has not considered the said aspect. Exhibit-P8 is the application for loan and Exhibit-P7 is the ledger extract in respect of the loan account. The evidence of PW1 Manager is self speaking.

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In this particular case, the appellant is entitled to the presumptions available under Sections 118(a) and 138 of the Negotiable Instruments Act. The accused has not adduced any positive evidence to rebut those presumptions. The judgment of acquittal is not based on any reason at all. Especially when the complainant is a Bank, the court below ought to have

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Crl.A.No.663 of 2009 5

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been more vigilant in passing an order of acquittal as the one in this case. No doubt, the judgment of acquittal is quite unnecessary and the same is not legally sustainable. Matters being so, the impugned judgment is liable to be set aside. At the same time, this is a case, in which, the accused is entitled to an opportunity to rebut the presumptions available under Sections 118(a) and 139 of the Negotiable Instruments Act, for which, the matter has to be remitted to the court below.

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In the result, this Crl. Appeal is allowed and the impugned judgment is set aside. The complaint is restored and is remitted to the court below for giving opportunity to the accused to rebut the presumptions available to the complainant under Sections 118(a) and 139 of the Negotiable Instruments Act.

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The complainant shall appear before the court below on 16.01.2017. The court below shall issue

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Crl.A.No.663 of 2009

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summons to the accused. The court below shall give an opportunity to the accused to adduce evidence, if

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he chooses to do so, to rebut the presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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DSV/19/12/16

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// True Copy //

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P.A. To Judge

The Kottayam Dist. Co-Op. Bank v. T.K.Babu & Another

Case brief

What is this about?

What did the court decide?

The Kottayam Dist. Co-Op. Bank v. T.K.Babu & Another

Case brief

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What did the court decide?

What the court decided

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