Criminal Appeal against acquittal in a cheque dishonour case. The High Court upheld the appellate court's finding that the complainant failed to prove the cheque was issued to discharge a borrowing liability, holding it was likely misutilized in a business transaction.
Criminal Appeal dismissed; acquittal of the accused affirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939
CRL.A.No. 465 of 2011
CRA 520/2007 of I ADDL. SESSIONS COURT, THRISSUR
ST 249/2005 of J.M.F.C.-I, THRISSUR
APPELLANT(S)/RESPONDENT/COMPLAINANT
SUNNY ANTO.C., S/O.ANTHONY, CHIRAKKEKARAN HOUSE, KOORKANCHERY, THRISSUR DISTRICT.
BY ADV.SRI.P.V.CHANDRA MOHAN
RESPONDENT(S)/APPELLANT/ACCUSED:
1. N.M.GOVINDAN, S/O.CHATHU, PROPRIETOR OF PRIYA HARDARES, KAPPADAMKANDI HOUSE, BALUSSERY P.O., KOZHIKODE-673 001.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
R1 BY ADV. SRI.K.B.ARUNKUMAR R2 BY PUBLIC PROSECUTOR SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
STK
B. SUDHEENDRA KUMAR, J.
--------------------------------
Crl. Appeal No.465 of 2011
Dated this the 6th day of March, 2018
JUDGMENT
The appellant is the complainant in S.T.No.249/2005 on the files of the trial court.
the accused issued Ext.P2 cheque in favour of the
Crl.Appeal No.465 of 2011
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complainant. The contention of the accused is that the accused had business transaction with the appellant and at the time of commencement of business transactions, the accused had entrusted a blank signed cheque with the appellant and the said cheque had been misutilized by the appellant to file the present complaint.
Crl.Appeal No.465 of 2011
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accused. In Ext.P6 lawyer notice and in the complaint and also in the evidence of PW1 in his examination-in-chief, the contention of the appellant was that the accused issued Ext.P2 cheque dated 14.01.2002 towards the discharge of the liability to the appellant in connection with the borrowing of an amount by the accused from the appellant. However, the date of borrowing the money and the date when the cheque was issued, were silent in Ext.P6 notice and in the complaint and also in the evidence of PW1 in his examination-in-chief. However, in the cross-examination, PW1 stated that the amount was given on 14.01.2002. PW1 did not disclose anything with regard to the business transaction between PW1 and the accused, till PW1 was confronted with Ext.D1 series. Ext.D1 series are bills for the purchase of goods from the appellant. Even though PW1 stated that he was not the proprietor of Chirakkekaran Glass House, the complainant
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admitted his signature in all the said bills. PW1 stated that the name of his business concern is Chirakkekaran Agencies. However, Ext.D1 series would show otherwise. In view of Ext.D1 series, the court below found that the contention of the accused that a blank signed cheque entrusted by the accused with the appellant at the time of purchasing the goods from the appellant on credit basis had been misutilized by the appellant to file the present complaint, was probable. In the said circumstances, the court below held that the complainant could not establish that the accused executed Ext.P2 cheque as contemplated under Section 138 of the N.I. Act.
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Ext.P8 covering letter was also handed over by the accused to PW1 along with Ext.P2 cheque, particularly when Ext.P2 cheque was given to PW1 directly by the accused immediately after writing and signing the same. The evidence of PW1 would show that the accused had written and signed the cheque in his presence. Thereafter, the accused handed over the cheque to PW1. It is not possible to believe that the accused would hand over a covering letter also with the cheque to PW1. If the accused had given cheque directly to PW1 as stated by PW1, there would have been hardly any need to hand over Ext.P8 covering letter also, along with Ext.P2 cheque. Therefore, the said part of the evidence would probabilise that the contention of the appellant and the evidence of PW1 that the cheque in question was issued by the accused at the time of borrowing the amount from the appellant cannot be correct. The handing over of Ext.P8
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covering letter along with Ext.P2 cheque would
probabilise the contention of the accused that the cheque in question was handed over to the complainant in connection with the business transaction between the appellant and the accused and not in discharge of the liability in connection with the borrowing of the amount as contended by the appellant. If that be so, the contention of the accused that a blank signed cheque entrusted by the accused with the appellant in connection with the business transaction had been mis-utilized by the appellant to file the present complaint, appears to be probable. Therefore, it cannot be said that the appellant could establish that the accused executed Ext.P2 cheque as contemplated under Section 138 of the N.I.Act and in the said circumstances, I find no reason to deviate from the finding of the court below that the complainant could not establish that the accused executed Ext.P2 cheque as
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contemplated under Section 138 of the N.I.Act. In the said circumstances, I do not find any reason to interfere with the judgment and order passed by the appellate court acquitting the accused.
In the result, this Crl. Appeal stands dismissed.
Sd/-
B. SUDHEENDRA KUMAR,
STK
//TRUE COPY//
//P.A. TO JUDGE//
3 issues framed by the court
Whether the complainant established that the accused executed the disputed cheque as contemplated under Section 138 of the Negotiable Instruments Act.
Whether the appellate court's finding that there was a business transaction and misutilization of a blank cheque should be disturbed.
Whether the discrepancy regarding the handing over of a covering letter along with the cheque makes the prosecution case improbable.
1 provisions across 1 enactments
Sunny Anto.C.
N.M.Govindan
State of Kerala
B.Sudheendra Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
