A criminal revision petition challenging conviction under Section 138 NI Act. The High Court allowed the petition, finding the lower courts failed to ascertain if the cheque amount was legally due, setting aside conviction and sentencing the accused to acquittal.
Conviction and sentence set aside; accused acquitted; bail bond discharged.
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
THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939
Crl.Rev.Pet.No. 2770 of 2010
CRA 232/2009 of ADDL.SESSIONS COURT (FAST TRACK-III), PALAKKAD STC 2985/2007 of J.M.F.C.-III,PALAKKAD
REVISION PETITIONER(S)/APPELLANT/ACCUSED
T.V.MADHUSOODHANAN,
S/O.VELAYUDHAN,THEKKANKAD, MUTTIKULANGARA,, PALAKKAD.
BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P
RESPONDENT(S)/RESPONDENTS/COMPLAINANT & NON PARTY:
R1 BY ADV. SRI.JOHN JOSEPH(ROY)
R2 BY SHRI E C BINEESH
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
Crl.R.P. No.2770 of 2010
O R D E R
The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable
Instruments Act (for short 'the N.I. Act').
submitted that even though there was no evidence to show that the amount covered by Ext.P2 cheque was due to the complainant from the revision petitioner, the courts below convicted and sentenced the revision petitioner under Section 138 of the N.I. Act and in the said circumstances,
Crl.R.P. No.2770/10
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the conviction and sentence passed by the courts below, cannot be sustained.
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amount of Rs.80,000/- covered by the cheque. However, as per Ext.P5, the revision petitioner was directed to pay Rs.80,000/-. It is also stated in the notice that the revision had made payment of 13 instalments out of the loan availed by him. It is not discernible as to how even after making payment of 13 instalments, an amount of Rs.80,000/- was due. In the affidavit filed in lieu of the examination-inchief also, PW1 did not state as to when the loan was availed by the revision petitioner. It was also not stated in the proof affidavit about the amount of loan availed by the revision petitioner. The revision petitioner had a contention that the amount covered by Ext.P2 cheque was not due to the complainant from the revision petitioner. It is not discernible as to how the amount covered by Ext.P2 cheque was due to the complainant from the revision
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petitioner as on the date of issuance of the cheque. By going through the case of the complainant in Ext.P5 notice, only an amount of Rs.80,000/- was given as loan. The complainant did not incline to produce any docuument to prove the transaction between the complainant and the revision petitioner, which resulted in the issuance of Ext.P2 cheque. In view of the above reason, it cannot be said that the amount covered by Ext.P2 cheque was due to the complainant as on the date of Ext.P2 cheque. In the said circumstances, it has to be held that the complainant could not establish that the revision petitioner executed Ext.P2 cheque as contemplated under Section 138 of the N.I. Act and consequently, the conviction and sentence passed by the courts below under Section 138 of the N.I. Act cannot be sustained and consequently, I set aside the same.
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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
sd
B.SUDHEENDRA KUMAR, JUDGE
// True copy // PA to Judge
dl/2.2.18
2 issues framed by the court
Whether the amount covered by the cheque was legally due from the accused to the complainant as of the date of issuance.
Whether the complainant discharged the onus of proving the debt underlying dishonoured cheques.
1 provisions across 1 enactments
T.V. Madhusoodhanan
KusumbhAI
State of Kerala
B.Sudheendran Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
