The High Court allowed the criminal revision petition and acquitted the petitioner, setting aside conviction under Section 138 of the NI Act due to lack of proof regarding cheque execution and transactions.
Revision petition allowed; conviction and sentence set aside; revision petitioner acquitted; bail bonds discharged.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940
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AGAINST THE ORDER/JUDGMENT IN ST 1754/2010 of J.M.F.C.II,PATHANAMTHITTA DATED 31-05-2014
AGAINST THE ORDER/JUDGMENT IN CRA 127/2014 of ADDL. D.C. & SESSIONS COURT - III, PATHANAMTHITTA DATED 20-03-2017
REVISION PETITIONER:
JERRY EASO OMMEN, S/O OMMEN AGED 62 YEARS, V111/8 PMC, PUTHEN BUNGLOW, MYLAPRA P.O,RKUMBAZHA, PATHANAMTHITTA - 689645.
BY ADVS.
SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASIKUMARAN SRI.SETHURAM DHARMAPALAN SRI.SUNIL KUMAR A.G
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,RHIGH COURT OF KERALA, ERNAKULAM-682031.
2 MATHEW ABRAHAM
AGED 64 YEARS, S/O ABRAHAM, NELLICKUNNATHU HOUSE, ELANTHOOR EAST P.O,ELANTOOR, PATHANAMTHITTA - 689645.
BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX
OTHER PRESENT:
R1 BY SHRI GP E.C.BINEESH - PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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O R D E R
The revision petitioner was convicted and sentenced by the courts below in S.T. Nos.1750 and 1754 of 2010 under Section 138 of the Negotiable Instruments Act.
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notices or in the complaints with regard to the transaction for which Exts.P1 and P2 cheques were issued by the revision petitioner. The complaint in S.T. No.1754 of 2010 was filed on 30.8.2010 and the complaint in S.T. No.1750 of 2010 was filed on 21.8.2010. Thereafter, proof affidavit was filed in S.T. No.1754 of 2010 on 20.4.2010. The proof affidavit was filed in S.T. No.1750 of 2010 on 16.10.2012. In the said proof affidavits also, the complainant did not mention about the transaction which led to the issuance of Exts.P1 and P2 cheques by the revision petitioner. However, subsequently, another proof affidavit was filed when the joint trial of the said cases was ordered by the trial court.
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counsel for the 2nd respondent, as the said proof affidavit
was not transmitted to this court along with the records of the trial court. In the said proof affidavit, which was filed on 1.1.2014, it was contended that the revision petitioner borrowed an amount of Rs.1,50,000/- on 28.1.2010 and towards the discharge of the said liability, the revision petitioner issued Exts.P1 and P2 cheques. PW1 stated that PW1 had no other transaction with the revision petitioner. However, at the fag end of the cross-examination of PW1, PW1 stated that PW1 received some amount from the revision petitioner through two cheques on 4.7.2009 and 3.6.2010 in connection with some other small transactions.
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borrowing an amount of Rs.50,000/- from the complainant had been mis-utilised by the complainant to file the present complaint. The revision petitioner further contended that the interest was also paid through the cheques. Exts.P1 and P2 are dated 20.6.2010. PW1 stated that the revision petitioner initially issued Ext.P1 cheque for the balance amount. It is not discernible from the evidence of PW1 as
to why the revision petitioner issued two cheques with the same date on the same day to the complainant. The revision petitioner had also a contention that the complainant did not have the capacity to pay the amount covered by Exts.P1 and P2 cheques. The evidence of PW1 at the initial part of the cross-examination, that PW1 had no other financial transaction with the revision petitioner, was
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shattered during the cross-examination when a question was put to PW1 as to whether PW1 had received amount from the revision petitioner through cheques on 4.7.2009
and 3.6.2010. This would show that there was
transaction between the revision petitioner and the complainant even prior to the transaction alleged in this case. It is not discernible as to why the complainant did not state anything about the nature of the transaction either in the demand notices or in the complaints or in the proof affidavits filed initially. The evidence of PW1 coupled with the fact that Exts.P1 and P2 are having the same date, would give room for doubt with regard to the liability of the revision petitioner to issue Exts.P1 and P2 cheques, particularly when PW1 could not explain the situation as to why two cheques were issued by the revision petitioner on
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the same day with the same date. In view of the above
reasons, it appears that the contention of the revision petitioner is probable. Consequently, it has to be held that the complainant could not establish that the revision petitioner executed Exts.P1 and P2 cheques as contemplated under Section 138 of the Negotiable Instruments Act. In the said circumstances, the conviction and sentence passed by the courts below in S.T. No.1750 of 2010 and S.T.No.1754 of 2010 cannot be sustained.
In the result, these revision petitions stand allowed, setting aside the conviction and sentence passed by the courts below in S.T. No.1750 of 2010 and S.T.No.1754 of 2010 under Section 138 of the N.I. Act and the revision petitioner stands acquitted for the said offences in the above said cases. The bail bonds of the revision petitioner stand discharged.
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Needless to state that if the revision petitioner had already deposited any amount before the trial court, pursuant to the direction of this court, the revision petitioner is entitled to reimbursement of the said amount from the trial court.
Dated this the 5th day of September 2018.
sd
B.SUDHEENDRA KUMAR, JUDGE
dl/
// True copy // PA to Judge
2 issues framed by the court
Whether the complainant established the execution of the disputed cheques to sustain conviction under Section 138 of the Negotiable Instruments Act.
Whether the failure to disclose the transaction in demand notices and complaints vitiated the prosecution evidence.
1 provisions across 1 enactments
JERRY EASO OMMEN
STATE OF KERALA
MATHEW ABRAHAM
B.SUDHEENDRA KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
