Allowed

Mathew K.Cherian v. Sunil Kumar and Another

Kerala HC7 Sept 2016CRL.A/961/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal against acquittal in a cheque dishonour case. It held the power of attorney was valid, found the evidence sufficient to convict the accused under Section 138 NI Act, and sentenced him to imprisonment till the rising of the court with compensation.

What did the court decide?

Appellant convicted under Section 138 NI Act; sentenced to imprisonment till rising of court, and ordered to pay Rs. 20,000 compensation.

Mathew K.Cherian Vs Sunil Kumar and Another — Cheque Dishonour | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

¶4

WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938

¶5

CRL.A.No. 961 of 2009 (A)

¶6

ST 1067/2006 of JUDICIAL FIRST CLASS MAGISTRATE’S COURT-I, KOTTAYAM

¶7

APPELLANT/COMPLAINANT:

¶8

MATHEW K.CHERIAN, KOSAMATTAM HOUSE, MANGANAM, KOTTAYAM.

¶9

BY ADV. SRI.M.J.THOMAS

¶10

RESPONDENTS/ACCUSED AND STATE:

¶11

1. SUNIL KUMAR, PAZHAYA PURAKAD HOUSE, AMBALAPUZHA, ALAPPUZHA.

¶12

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

¶13

R2 BY SR. PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA

¶14

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

DSV/8/9/16

¶16

B. KEMAL PASHA, J

¶17

================= Crl.Appeal No.961 of 2009

¶18

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

¶19

Dated this the 7^th day of September, 2016

¶20

J U D G M E N T

¶21

Challenging the judgment of acquittal passed by the Judicial First Class Magistrate’s Court-I, Kottayam in S.T.No.1067 of 2006, the complainant in the case before the court below has come up in appeal.

¶22

The case of the complainant is that the accused, in discharge of his liability, to pay an amount of 20,000/- to the complainant, issued Exhibit-P2 cheque dated 04.01.2006 for 20,000/- to the complainant, which, on presentation, returned dishonoured for insufficiency of funds in the account of the accused. The notice caused to be issued under

¶23

Crl.A.No.961 of 2009 2

¶24

Section 138(b) of the Negotiable Instruments Act, did not evoke any response and hence the complaint.

¶25

On the side of the complainant, PW-1, who is the power of attorney holder of the complainant, was examined and Exhibits-P1 to P6 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.

¶26

Heard the learned counsel for the appellant.

¶27

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

¶28

The court below has mainly chosen to throw out the complaint on the ground that Exhibit-P1 power of attorney does not authorise PW-1 to file the complaint and to prosecute it. According to the court below, Exhibit-P1 power of attorney was executed for the recovery proceedings from various debtors and

¶29

Crl.A.No.961 of 2009 3

¶30

also for filing complaints and prosecuting such debtors. At the same time, the court below has lost the sight of the fact that Exhibit-P1 power of attorney was executed for proceeding against other borrowers

¶31

also. When a person has borrowed amount and subsequently fails to discharge the debt, PW-1 is authorised to proceed against him, based on ExhibitP1 power of attorney.

¶32

In this particular case, as per the affidavit in

¶33

lieu of chief examination of PW-1, the cheque was issued by the accused in discharge of the amount borrowed by the accused from the complainant.

¶34

Matters being so, Exhibit-P1 power of attorney clearly authorises PW-1 to file the complaint as well as to prosecute the complaint as against the accused, who was only a borrower.

¶35

The court below has suspected the

¶36

transaction in question, by observing that the

¶37

Crl.A.No.961 of 2009 4

¶38

accused, who is hailing from Ambalapuzha, had travelled by all way to Kottayam for borrowing the amount and therefore, the same cannot be believed. The said observation is unfounded. There is no rule that a person hailing from Ambalapuzha should not go to Kottayam for borrowing an amount of `20,000/-. It has come out in evidence that there were other transactions between the parties earlier. The accused had participated in a chitty conducted by the complainant and that transaction was over. In such case, especially when the parties had acquaintance with each other prior to the transaction, there is every possibility of similar other future transactions also.

¶39

Regarding Exhibit-P2 cheque, the evidence

¶40

of PW-1, clearly shows that Exhibit-P1 is supported by consideration. The court below has thrown out the complaint merely based on surmises and conjunctures. The accused has not adduced any

¶41

Crl.A.No.961 of 2009 5

¶42

evidence. There are prima facie materials available in the evidence of PW-1 to invite the presumptions under Sections 118(a) and 139 of the Negotiable Instruments Act, in favour of the complainant. Even without any iota of evidence from the part of the accused, the court below has chosen to adopt the contentions of the accused. In this particular case, all the ingredients to invite an offence under Section 138 of the Negotiable Instruments Act have been clearly made out by the complainant. The acquittal of the accused by the court below through the impugned judgment has resulted in substantial miscarriage of justice. Therefore, the same is liable to be reversed.

¶43

The acquittal of the accused by the court

¶44

below is liable to be reversed. It stands proved that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, he is liable to be convicted thereunder.

¶45

Crl.A.No.961 of 2009 6

¶46

After the lapse of this much time, it is not just and proper in the interest of justice to impose a

¶47

long term of imprisonment on the accused. This Court is of the view that the sentence of imprisonment till the rising of court and an order to pay an amount of `20,000/- (Rupees Twenty Thousand Only) as compensation under Section 357(3) Cr.P.C. to the complainant by the accused, within a period of two months from today, in default to undergo simple imprisonment for three months, will meet the ends of justice in this case.

¶48

In the result, this Crl.Appeal is allowed and the

¶49

impugned judgment passed by the court below is reversed. The accused is found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and is convicted thereunder. He is sentenced to undergo imprisonment till the rising of the court and is ordered to pay an amount of `20,000/-

¶50

Crl.A.No.961 of 2009 7

¶51

(Rupees Twenty Thousand Only) to the complainant, as compensation under Section 357(3) Cr.P.C., within a period of two months from today, in default, to undergo simple imprisonment for three months.

¶52

Sd/-

¶53

B. KEMAL PASHA, JUDGE.

¶54

DSV/8/9/16

¶55

// True Copy //

¶56

P.A. To Judge

Mathew K.Cherian v. Sunil Kumar and Another

Case brief

What is this about?

What did the court decide?

Mathew K.Cherian v. Sunil Kumar and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Manoj Vs State of Kerala

M.J.Kuriakose Vs Babu Puliammackal and Another

Kuruvilla Vs State of Kerala

Appu @ Krishnankutty Vs the State of Kerala

Joju.K.v. Vs Kunjumon and Others

Abdul Latheef Vs State of Kerala