Allowed

Nazeer Hassan v. State of Kerala

Kerala HC15 Feb 2018Crl.Rev.Pet/1660/2011

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision petition. The Court held that the prosecution failed to establish that the accused executed the disputed cheque as required under Section 138 of the Negotiable Instruments Act. Consequently, the conviction and sentence were set aside and the accused was acquitted.

What did the court decide?

Conviction and sentence under Section 138 NI Act set aside; appellant acquitted; bail bond discharged.

Nazeer Hassan Vs State of Kerala — 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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THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939

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Crl.Rev.Pet.No. 1660 of 2011

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CRA 134/2009 of ADDITIONAL SESSIONS COURT (ADHOC-I), TRIVANDRUM DATED 01-06-2011 ST 583/2005 of J.M.F.C.-II,ATTINGAL

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REVISION PETITIONER(S)/APPELLANT/ACCUSED

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NAZEER HASSAN, AGED 49 YEARS, S/O.LATE HASSANKUTTY RAWTHER, BUNGLAWIL HOUSE,, KARIARA MURI, KARIARA.P.O., VILAKKUDI VILLAGE,, PATHANAPURAM TALUK, KOLLAM DISTRICT.

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BY ADVS.SRI.C.RAJENDRAN SRI.K.SURESH BABU (PUNALUR) SMT.R.S.SREEVIDYA

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RESPONDENT(S)/STATE/COMPLAINANT:

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THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.

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FAZILUDEEN, S/O.ALIKANNU, THOPPIL VILLA, THELIKUZHI,, PAZHAYAKUNNUMEL VILLAGE. 695 614.

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R2 BY ADV. SRI.SANU.S.PANICKER BY PUBLIC PROSECUTOR SRI.E.C. BINEESH

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-02-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B. SUDHEENDRA KUMAR, J.

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..................................................... Crl. R.P. No. 1660 of 2011

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Dated this the 15^th day of February, 2018

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ORDER

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The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act, 1881 ('the N.I.Act” for short).

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Heard.

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The learned counsel for the revision petitioner has argued that the complainant could not prove the execution of Ext. P6 cheque as contemplated under Sec. 138 of the N.I.Act, and in the said circumstances, the conviction and sentence passed by the courts below cannot be sustained. Per contra, the learned counsel for the 2^nd

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-: 2 :-

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Crl. R.P. No. 1660 of 2011

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respondent, who is the complainant, has argued that the complainant could prove the execution of Ext. P6 cheque, and in the said circumstances, the conviction and sentence passed by the courts below are justified.

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In order to prove the case of the complainant, the complainant himself got examined as PW1. PW1 stated that on 7-8-2004 at 10 a.m., the revision petitioner borrowed an amount of Rs. 1,92,000/- from PW1 at the house of PW1 and at the time of borrowing the said amount, the accused issued Ext. P1 cheque bearing the date 7-1-2005.

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The revision petitioner had a contention that the revision petitioner and the complainant were working abroad and at that time, there were business transactions between them. In connection with the dispute with regard to the business transaction, the complainant approached

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-: 3 :-

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Crl. R.P. No. 1660 of 2011

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the Dy.S.P. Punalur with a complaint against the revision petitioner. On the basis of the said complaint, the Dy.S.P. Punalur, summoned the revision petitioner and the complainant and as per the compulsion of the Dy.S.P., the revision petitioner had to give the cheque in question to the complainant. The sum and substance of the contention of the accused is that the cheque in question was obtained by the complainant using coercion and the amount covered by Ext. P6 cheque was not due to the complainant.

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In order to prove the case of the revision petitioner, DW1 was examined. So also, the revision petitioner himself got examined as DW2. DW1 stated that the complainant herein had lodged a complaint against the revision petitioner before him, in connection with some financial dispute. The said financial dispute arose during the period when the complainant and the revision petitioner were abroad. DW1 summoned the complainant and the

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-: 4 :-

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Crl. R.P. No. 1660 of 2011

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revision petitioner to the police station. Thereafter, since the matter was a civil dispute, the parties were referred to the court. DW1 denied the suggestion of the revision petitioner that Ext. P6 cheque was issued by the revision petitioner as directed by DW1. DW1 was not crossexamined on behalf of the complainant. During the crossexamination of PW1, PW1 denied to have given any such complaint against the revision petitioner before the Deputy Superintendent of Police, Punalur. However, the evidence of DW1 would clearly show that PW1 and DW2 were summoned to the office of DW1 who was the then Dy.S.P., in connection with a complaint given by PW1 against DW2. In view of the above reason, it appears that PW1 did not disclose the actual transaction which led to the issuance of Ext. P6 cheque. Having gone through the evidence of PW1 , in the light of the evidence of DW1 and DW2, it appears that the case set up by the revision petitioner is probable. It is also to be noted that an amount

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-: 5 :-

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Crl. R.P. No. 1660 of 2011

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of Rs. 1,92,000/- was borrowed by the accused on 7-82004. It is not possible to believe that a person would borrow an amount of Rs. 1,92,000/- without having any specific purpose. No reason was stated by PW1 as to why such an amount was borrowed by the revision petitioner. Normally, the person would have borrowed either an amount of Rs. 1,90,000/- or an amount of Rs. 2,00,000/-. This also renders the case of the complainant suspicious. Since the defence set up by the revision petitioner is probable, it has to be held that the complainant could not establish that the revision petitioner executed Ext. P6 cheque as contemplated under Section 138 of the N.I.Act, and consequently, the conviction and sentence passed by the courts below cannot be 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

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-: 6 :- Crl. R.P. No. 1660 of 2011

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revision stands acquitted for the said offence. The bail bond of the revision petitioner stands 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 or the lower appellate court, the revision petitioner is entitled to get reimbursement of the said amount from the trial court.

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B. SUDHEENDRA KUMAR, JUDGE.

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ani/

Nazeer Hassan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Nazeer Hassan v. State of Kerala

Case brief

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What did the court decide?

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