Allowed

Gangadharan v. Krishna Sopanam Kuries (P) Ltd.

Kerala HC7 Sept 2018Crl.Rev.Pet/1453/2012

Case brief

AI extract

What is this about?

In this criminal revision petition, the High Court allowed the plea that the courts below could not sustain conviction for cheque bounce under Section 138 NI Act due to insufficient evidence regarding execution and outstanding liability of the cheque amount.

What did the court decide?

Conviction and sentence set aside; revision petitioner acquitted; bail bond discharged.

Gangadharan Vs Krishna Sopanam Kuries (P) Ltd. — 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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FRIDAY ,THE 07TH DAY OF SEPTEMBER 2018 / 16TH BHADRA, 1940

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Crl.Rev.Pet.No. 1453 of 2012

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CRA 540/2010 of SESSIONS COURT,THRISSUR

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CC 1870/2008 of J.M.F.C.-II,THRISSUR

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REVISION PETITIONER:

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GANGADHARAN S/O.VELAYUDHAN PUTHUSSERY HOUSE, HARITHA NIVAS BLANGAD P.O., CHAVAKKAD, THRISSUR

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BY ADV. SRI. G. SREEKUMAR (CHELUR)

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RESPONDENTS:

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1 KRISHNA SOPANAM KURIES (P) LTD. ARANATTUKARA, THRISSUR REP.BY MANAGING DIRECTOR, AJAYAKUMAR, ARANATTUKARA, THRISSUR - 680001

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2 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA AT ERNAKULAM 682031

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BY ADV. SRI. V. BINOY RAM

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OTHER PRESENT:

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R1 BY SHRI B JAYASURYA-PP

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No. 1453 of 2012

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O R D E R

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The revision petitioner was convicted and sentenced

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by the courts below under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act').

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Heard.

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The learned counsel for the revision petitioner has

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argued that since the complainant could not establish the execution of Ext.P1 cheque as contemplated under Section 138 of the N.I. Act, the conviction and sentence passed by the courts below cannot be sustained.

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The contention of the complainant is that the revision petitioner borrowed an amount of Rs.1,50,000/from the complainant. The revision petitioner defaulted in

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making repayment of the said amount. Towards the

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Crl.Rev.Pet.No. 1453 of 2012

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discharge of the said liability, the revision petitioner issued Ext.P1 cheque in favour of the complainant.

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PW1 was examined to prove the case of the complainant. PW1 was the litigation clerk of the complainant. He had no direct knowledge with regard to the transaction. PW1 stated that the revision petitioner borrowed an amount of Rs.1,50,000/- from the complainant during January 2007 and at the time of availing the said loan, no security was collected by the complainant. No guarantor was also furnished by the revision petitioner. The revision petitioner did not pay any amount after availing the loan. Therefore, notice was issued to the revision petitioner demanding the money. At that time, the revision petitioner came to the office of the complainant and issued Ext.P1 cheque.

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Crl.Rev.Pet.No. 1453 of 2012

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PW1 admitted that the complainant is having

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money lending business, for which the complainant has

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license. PW1 stated that the amount was borrowed by the

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revision petitioner during January 2007. Ext.P1 cheque is dated 29.3.2008. PW1 stated that at the time of lending the amount, no security was collected from the revision petitioner. No guarantee was also requested to be furnished by the revision petitioner. It is preposterous to conceive that any firm having the money lending business would lend an amount of Rs.1,50,000/- to a third person without collecting any security or without furnishing any guarantee. Therefore, the evidence of PW1 that at the time of availing the loan by the revision petitioner, neither any security nor any guarantee was requested to be furnished by the revision

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petitioner, cannot be accepted.

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Crl.Rev.Pet.No. 1453 of 2012

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Admittedly, PW1 was not having direct knowledge

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with regard to the transaction as he was not working with the complainant during the relevant period. The revision petitioner had a contention that the revision petitioner was a surety for one Poulose for collecting the chit amount and at that time, the revision petitioner handed over a blank signed cheque to the complainant and the said cheque had been mis-utilised by the complainant to file the present complaint.

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The revision petitioner had a specific contention that the revision petitioner had no other transaction at all with the complainant. Even though the revision petitioner had raised such a contention, the account book relating to the transaction was not produced by the complainant to prove that the revision petitioner had transaction with the

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Crl.Rev.Pet.No. 1453 of 2012

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complainant and that the amount covered by Ext.P1 cheque was due to the complainant from the revision petitioner. Having gone through the evidence of PW1, I am satisfied that the evidence of PW1 is not sufficient to establish that the amount covered by Ext.P1 was due to the complainant from the revision petitioner as on the date of the cheque. There is no other evidence to show that the amount covered by Ext.P1 cheque was due to the complainant from the revision petitioner. In the said circumstances, the contention of the revision petitioner appears to be probable. Consequently, it cannot be said that the complainant could establish that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I.Act. In view of the above reason, the conviction and sentence passed by the courts below cannot be

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Crl.Rev.Pet.No. 1453 of 2012

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sustained.

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In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 138 of the N.I. Act and the revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged. 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.

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Dated this the 7^th day of September, 2018.

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B. SUDHEENDRA KUMAR, JUDGE .

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dl/

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// True copy // PA to Judge

Gangadharan v. Krishna Sopanam Kuries (P) Ltd.

Case brief

What is this about?

What did the court decide?

Gangadharan v. Krishna Sopanam Kuries (P) Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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