Dismissed

P.C.Faris v. T.E.Kunhabdulla

Kerala HC28 Feb 2018CRL.A/2588/2008

Case brief

AI extract

What is this about?

Kerala High Court dismissed this criminal appeal against an acquittal in a cheque dishonour case. The court upheld the trial court's finding that the prosecution failed to prove the trial creditor-hip due to inherent improbability of cash transaction details and contradictory evidence.

What did the court decide?

The criminal appeal was dismissed; the judgment and order of acquittal passed by the court below were upheld and not interfered with.

P.C.Faris Vs T.E.Kunhabdulla — Cheque Dishonour | Kerala HC (2018)

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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.SUDHEENDRA KUMAR

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WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939

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CRL.A.No. 2588 of 2008

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CC 178/2005 of J.M.F.C.-IV,KOZHIKODE

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APPELLANT

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P.C.FARIS, S/O.P.C.FAISAL, ANJILAS PO PUTHIYANGADI, CALICUT 21

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BY ADVS.SRI.P.V.JYOTHI PRASAD SRI.K.SANEESH KUMAR

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RESPONDENTS/ACCUSED AND STATE:

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T E KUNHABDULLA, S/O.KUNHAMMAD HAJI PUTHANPEEDIGAYIL HOUSE, BHEEMIVATHUKKAL VIA VANIMEL PO, KODIYURA, VADAKARA, CALICUT

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

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R1 BY ADV. SRI.SHYAM PADMAN R1 BY ADV. SRI.A.RANJITH NARAYANAN R1 BY ADV. SRI.S.K.SAJU R2 BY SHRI B. JAYASURYA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.SUDHEENDRA KUMAR, J.

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Crl. Appeal No.2588 of 2008

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- - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 28^th day of February 2018

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JUDGMENT

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The appellant is the complainant in C.C. No.178 of

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2005 on the files of the court below.

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The appellant filed a complaint before the court below against the first respondent alleging offence under Section 138 of the Negotiable Instruments Act. The court below, after the trial, acquitted the accused under Section 255(1) Cr.P.C., against which this appeal has been filed after obtaining special leave from this court.

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Heard.

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The learned counsel for the appellant has submitted

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Crl.A.2588/2008

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: 2 :

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that the court below had presumed so many things and found that the complainant could not establish that the accused executed Ext.P1 cheque as contemplated under Section 138 of the N.I. Act and in the said circumstances, the judgment and order passed by the court below acquitting the accused cannot be justified.

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The court below acquitted the accused mainly on three reasons. The reasons are (i) the case of the complainant that the accused borrowed an amount of Rs.5,00,000/- is inherently improbable. (ii) the complainant did not mention anything about the transaction which had taken place between the complainant and the accused either in the statutory notice or in the complaint or in the evidence of PW1 in his examination-in-chief. (iii) the complainant himself had admittedly written the

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Crl.A.2588/2008

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: 3 :

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name of the payee in Ext.P1 cheque.

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I have gone through the evidence of PW1 carefully.

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It was stated by PW1 that the amount was paid by PW1 at the office of his uncle, where he kept about nearly six lakh as cash. The money was given by him to the accused in the month of February 2004. He withdrew an amount of Rs.3,75,000/- from the bank during September 2003. He was also having an amount of Rs.2,00,000/- in connection with his agricultural business. He also got an amount of Rs.3,75,000/- transferred by his father from abroad in the year 2003. The court below rightly found that it was unbelievable that a business man like PW1 would keep an amount of Rs.3,75,000/- withdrawn from the account during September 2003 till January 2004 expecting that he would be able to pay the said amount to some person, who

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Crl.A.2588/2008

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might request for the same as loan. Even otherwise, it is not believable that a business man like PW1 would keep an amount of Rs.6,00,000/- as cash at the office of his uncle instead of utilising the same for his business. Even though the amount was kept in the office of the uncle of PW1, the uncle was not present when the amount was paid by PW1 to the accused. It is also to be noted that the complainant did not state anything either in the complaint or in the affidavit filed by PW1 in lieu of his examination-in-chief, about the date of borrowing of the amount or the date of issuing the cheque by the accused. PW1 stated during the cross-examination that the amount was borrowed by the accused during February 2004. It is also very relevant to note that even though the request for the money was allegedly made by the accused during January 2004, PW1

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Crl.A.2588/2008

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: 5 :

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gave the amount only during the last week of February 2004. If PW1 had money with him as stated by PW1, it is not discernible as to why the amount was not given to the accused during the month of January itself. This would also lead to the inference that the evidence of PW1, that he paid the money in cash at the office of the uncle of PW1, is not free from doubt.

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I have perused Ext.P1 cheque. The name of the payee in Ext.P1 was admittedly written by PW1. PW1 stated that since the accused did not know the initial of PW1, PW1 was requested by the accused to write the name of the payee in Ext.P1 cheque. The said explanation given by PW1 was rightly dis-believed by the court below.

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When hearing an appeal against acquittal, if two views are possible in respect of any matter which has been

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Crl.A.2588/2008

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decided by the court below, the appellate court shall take

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the view which has been adopted by the trial court unless that view is perverse. In this case, having gone through the relevant inputs, I am of the considered view that the reasons stated by the appellate court for acquitting the accused are sound and hence, the judgment and order of acquittal passed by the court below do not call for any interference by this court.

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In the result, this Appeal stands dismissed.

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B.SUDHEENDRA KUMAR, JUDGE

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dl/.28.2.18 // True copy // PA to Judge

P.C.Faris v. T.E.Kunhabdulla

Case brief

What is this about?

What did the court decide?

P.C.Faris v. T.E.Kunhabdulla

Case brief

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What did the court decide?

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