Dismissed

Parameswaran v. Chirakkaparambil Kumaran and Another

Kerala HC22 Sept 2016Crl.Rev.Pet/1345/2009

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a criminal revision petition challenging conviction and sentence under Section 138 of the Negotiable Instruments Act. The court found the lower courts correctly appreciated the evidence, confirming the petitioner had capacity to issue the cheque and maintained liability despite defence arguments regardingDasproof of loan purpose and amounts. The nuisance of fact-

What did the court decide?

Petitioner granted six months to pay compensation; revision petition dismissed.

Parameswaran Vs Chirakkaparambil Kumaran and Another — Cheque Dishonour | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

¶4

THURSDAY, THE 22ND DAY OF SEPTEMBER 2016/31ST BHADRA, 1938

¶5

Crl.Rev.Pet.No. 1345 of 2009 ( )

¶6

AGAINST THE JUDGMENT IN CRA 352/2007 of ADDL.SESSIONS COURT (ADHOC)-II, MANJERI

¶7

AGAINST THE JUDGMENT IN CC 98/2001 of J.M.F.C.-II, PARAPPANANGADI

¶8

REVISION PETITIONER(S):

¶9

PARAMESWARAN, 50 YEARS, S/O. KUTTAN CHETTIYAR,, PUTHENVEETTIL HOUSE, MAHINE STORES, RS ROAD, TANUR, RAYIRIMANGALAM AMSOM DESOM, MALAPPURAM DISTRICT

¶10

BY ADV. SRI.T.G.RAJENDRAN

¶11

RESPONDENT(S):

¶12

CHIRAKKAPARAMBIL KUMARAN, 60 YEARS, S/O. APPUKUNHAN, AMRUTHA, RS ROAD, TANUR, RAYIRIMANGALAM AMSOM DESOM,

¶13

MALAPPURAM DISTRICT.

¶14

STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

¶15

R1 BY ADV. SRI.P.K.MOHANAN(PALAKKAD)

¶16

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶17

B.SUDHEENDRA KUMAR, J.

¶18

------------------------------------------

¶19

CRL.R.P.No.1345 of 2009

¶20

-------------------------------------------

¶21

Dated this the 22^nd day of September, 2016

¶22

O R D E R

¶23

The accused in C.C. No.98/2001 on the files of the Court

¶24

of the Judicial Magistrate of First Class-II, Parappanangadi filed this revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 138 of the Negotiable Instruments Act.

¶25

Heard.

¶26

The prosecution allegation can be briefly stated as

¶27

follows: The revision petitioner borrowed an amount of Rupees Two lakhs from the complainant and towards the discharge of the said liability, the revision petitioner executed Ext.P1 cheque in favour of the complainant. The complainant presented the said cheque for encashment. However, the same was dishonoured and returned to the

¶28

CRL.R.P.No.1345 of 2009

¶29

complainant with the endorsement 'full cover not received', due to insufficiency of funds in the account of the accused. Statutory notice was issued on behalf of the complainant, which was received by the accused. However, the accused did not pay the cheque amount within the statutory period.

¶30

Before the trial court, the complainant himself got examined as PW1 and Exts.P1 to P12 were marked for the complainant. DW1 to DW5 were examined and Exts.D1 to D6 were marked for the revision petitioner.

¶31

The learned counsel for the revision petitioner has argued that the evidence of PW1 would show that PW1 had no capacity to advance Rs.2 lakhs to the revision petitioner at the time of issuance of Ext.P1 cheque and in the said circumstances, it has to be held that there was no existing liability to the complainant at the time of the alleged issuance of Ext.P1 cheque by the revision petitioner and consequently, the revision petitioner is entitled to benefit of doubt. In order to substantiate the said contention, learned

¶32

CRL.R.P.No.1345 of 2009

¶33

-3-

¶34

counsel for the revision petitioner has relied on the evidence of DW1 to DW5 and Exts.D1 to D6. The learned counsel has further argued that even though, the cheque in question was issued by the revision petitioner as a blank signed cheque at the time when he borrowed an amount of Rs.6,000/- from the complainant, the said cheque was misutilised by the complainant to file the present complaint. The evidence of DW1 and DW2 coupled with Ext.P2 would show that the revision petitioner borrowed an amount of Rs.6,000/- from PW1 and he repaid the same on 29.6.1999 with interest. DW1 admitted that he was not present when the appellant borrowed the amount involved in this case. DW2 was also not present when the appellant borrowed the amount in this case. They are having only hearsay knowledge regarding the said transaction. The court below found from the evidence that DW1 was in inimical terms with PW1 as PW1 had filed a case against him under Section 138 of the Negotiable Instruments Act. DW2 was a tailor.

¶35

CRL.R.P.No.1345 of 2009

¶36

He claimed that he was writing the accounts of PW1 from February 1991 to March 2002. He further stated that PW1 used to prepare a rough account in a small pocket diary and later on, DW2 used to carry forward the same in the account book. Ext. D2 is the said pocket diary. PW1 clearly stated that he did not have any staff by name Sreedharan, who is DW2. It is also to be noted that Ext.D2 or the corresponding entry in Ext.D2(a) was not brought to the notice of PW1 during the cross-examination of PW1. Having gone through the evidence of DW1 and DW2, I am fully convinced that the court below correctly disbelieved their evidence that the cheque in question was the cheque which was handed over by the revision petitioner to PW1 at the time of borrowing an amount of Rs.6,000/- from PW1. The evidence of DW3, who was the Taluk Supply Officer, would show that Ext.D1 was submitted by PW1 for renewal of ration card. In Ext.D1, the monthly income of PW1 is shown as Rs.200/-. PW1 stated that the details in Ext.D1 were

¶37

CRL.R.P.No.1345 of 2009

¶38

-5-

¶39

furnished by him twenty years back. DW4 was the Secretary of Regional Housing Co-operative Society from where the wife of PW1 had availed a housing loan, for which execution proceedings were pending. The courts below found that merely because it was mentioned in Ext.D1 that the monthly income of PW1 was Rs.200/-, it could not be said that the said amount was the actual income of the person concerned. The courts below further found that availing housing loan, from financial institutions by the wife of PW1 could not be taken as a circumstance to hold that PW1 was a person having no means. PW1 stated that he is a business man having sufficient source of income. The evidence of DW1 and DW2 is to the effect that PW1 is a money lender. In the said circumstances, merely because PW1 had shown Rs.200/- as his monthly income in Ext.D1 or merely because the wife of PW1 had availed a housing loan, it cannot be said that PW1 had no capacity to advance the amount. It is also pertinent to note that not even a

¶40

CRL.R.P.No.1345 of 2009

¶41

suggestive question was put to PW1 during his crossexamination that PW1 had no capacity to advance the amount covered by Ext.P1 cheque. Having gone through the evidence of DW1 and DW2 in the light of the evidence of PW1, it is clear that PW1 had sufficient capacity to advance the amount covered by Ext.P1 cheque. Having gone through the relevant inputs, I am fully convinced that the courts below correctly appreciated the evidence and rightly found that PW1 had the capacity to advance the amount covered by Ext.P1 cheque.

¶42

The evidence of PW1 would prove the execution of Ext.P1 cheque by the revision petitioner as contemplated under Section 138 of the Negotiable Instruments Act. The courts below correctly appreciated the evidence adduced by the parties and concurrently found that the revision petitioner committed the offence under Section 138 of the Negotiable Instruments Act. No material has been brought to the notice of this Court to indicate that the appreciation

¶43

CRL.R.P.No.1345 of 2009

¶44

of evidence or the concurrent finding of conviction by the courts below was perverse or incorrect. In the said circumstances, the verdict of guilty and conviction passed by the courts below under Section 138 of the N.I.Act do not call for any interference by this Court. The sentence awarded by the appellate court also does not call for any interference by this Court.

¶45

In the result, the revision petition stands dismissed.

¶46

However, the revision petitioner is granted six months to pay the compensation.

¶47

Sd/- B.SUDHEENDRA KUMAR JUDGE

¶48

al/-

Parameswaran v. Chirakkaparambil Kumaran and Another

Case brief

What is this about?

What did the court decide?

Parameswaran v. Chirakkaparambil Kumaran 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

A.Hussain Vs the Food Inspector,Manjeri and Another

T.v.Aniyan Vs Food Inspector, Vaikom Municipality

Mohammad K. Vs the Food Inspector and Another

Navas Vs State of Kerala

S.Satheesh Kumar Vs State of Kerala

M.Gopinath Vs the State of Kerala