Allowed

Bindu, W/O.Babu v. Sree Gokulam Chit & Finance Co. Pvt.Ltd.

Kerala HC8 Mar 2018Crl.Rev.Pet/728/2015

Case brief

AI extract

What is this about?

The High Court reviewed a criminal revision petition challenging a conviction under Section 138 of the Negotiable Instruments Act. The court held that the prosecution failed to prove that the cheque amount was due on the date of the instrument, finding the revision petitioner's case of misutilisation probable. Consequently, the conviction was set aside.

What did the court decide?

Revision petition allowed; conviction and sentence set aside; revision petitioner acquitted; bail bond discharged.

Bindu, W/O.Babu Vs Sree Gokulam Chit… — Contract and Commercial Disputes | 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 8TH DAY OF MARCH 2018 / 17TH PHALGUNA, 1939

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Crl.Rev.Pet.No. 728 of 2015

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CRA 174/2014 of III ADDL.SESSIONS COURT, KOZHIKODE-III ST 829/2011 of J.M.F.C.,NADAPURAM

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REVISION PETITIONER(S)/REVISION PETITIONER

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BINDU, W/O.BABU

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MODANMURATHULLATHIL HOUSE, CHERAPURAM, VADAKARA TALUK

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BY ADVS.SRI.NIRMAL. S

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SMT.VEENA HARI

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RESPONDENT(S)/RESPONDENTS:

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SREE GOKULAM CHIT & FINANCE CO. PVT.LTD.

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REP BY ITS POER OF ATTORNEY HOLDER, MR. C V SIVADASAN, S/O.GOVINDAN NAMBIAR, MUKKATTUKUNIYIL HOUSE,,ERAMALA AMSOM, ORAKKATTERY DESOM, KOZHIKODE 673001

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STATE OF KERALA

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REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM KOCHI 682011

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R1 BY ADV. SRI.U.P.BALAKRISHNAN

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BY PUBLIC PROSECUTOR SRI. B. JAYASURYA

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-03-2018,

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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. 728 of 2015

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.....................................................

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Dated this the 8th day of March, 2018

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ORDER

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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

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Instruments Act., (“the N.I. Act” for short).

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Heard.

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The learned counsel for the revision

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petitioner has submitted that the evidence adduced by the complainant is not sufficient to prove that the amount

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covered by Ext. P1 cheque was due to the complainant

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from the revision petitioner as on the date of the cheque

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Crl.R.P. No. 728 of 2015

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and in the said circumstances, the conviction and sentence cannot be sustained.

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PW1 is the power-of-attorney holder of

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the complainant. He stated that the husband of the revision petitioner was a subscriber of two chits and he received an amount of Rs. 1,49,258/- and Rs. 74,629/in connection with the bidding of the said chits. Thereafter, he made default in repayment of the instalments. Thus, an amount of Rs. 1,73,450/- was due to the complainant from the revision petitioner. Towards the discharge of the said liability, the revision petitioner issued Ext. P1 cheque. PW2 was the Branch Manager of the complainant. He was examined to prove Exts. P9 and

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Crl.R.P. No. 728 of 2015 -3-

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P10. He also stated that Ext. P1 cheque was given by the revision petitioner to PW2 in the presence of PW1. Exts. P9 and P10 are agreements. PW3 is a witness to Exts. P9 and P10 agreements.

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Exts. P9 and P10 would show that an

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agreement was executed whereby the petitioner herein was the guarantor for her husband to collect the money

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covered by the said chits.

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The revision petitioner had a contention that Exts.P9 and P10 were created by the complainant after obtaining signature of the revision petitioner and her husband on the said documents. The revision petitioner

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Crl.R.P. No. 728 of 2015

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had a further contention that the revision petitioner did not issue Ext. P1 cheque as stated by PW1. According to the revision petitioner, Ext. P1 cheque was issued as a blank signed cheque at the time when her husband collected the chit amount from the complainant and the said cheque had been misutilised by the complainant to file the present complaint. It is the further contention of the revision petitioner that no amount was due to the complainant from the revision petitioner as on the date of the cheque.

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The complainant produced Exts. P11 and P12 extracts to prove that the amount covered by Ext. P1 cheque was due to the complainant from the revision

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Crl.R.P. No. 728 of 2015

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petitioner. I have gone through Exts. P11 and P12. It is not revealed from Exts. P11 and P12 that the amount covered by Ext. P1 cheque was due to the complainant as on the date of the cheque. There is absolutely no evidence before the court as to how the amount covered by Ext. P1 cheque was due from the revision petitioner to the complainant. Exts. P11 and P12 are stated to be the computer print out of the extract of the account of the revision petitioner. However, Exts. P11 and P12 do not show that the amount covered by Ext. P1 cheque was due to the complainant from the revision petitioner. Eventhough the revision petitioner had a contention that the blank signed cheque entrusted by the revision petitioner with the complainant had been misutilised to

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Crl.R.P. No. 728 of 2015

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file the preset complaint, no document was produced by the complainant to prove that the amount covered by Ext.

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P1 cheque was due to the complainant from the revision petitioner. Exts. P9 to P12 are not sufficient to prove the same. In the absence of any such evidence, it has to be held that the case of the revision petitioner is 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.

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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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Crl.R.P. No. 728 of 2015

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revision petitioner 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, the revision petitioner is entitled to re-imbursement of the said amount from the trial court.

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Sd/-B. SUDHEENDRA KUMAR, JUDGE.

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ani/

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/true copy/

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P.S. to Judge

Bindu, W/O.Babu v. Sree Gokulam Chit & Finance Co. Pvt.Ltd.

Case brief

What is this about?

What did the court decide?

Bindu, W/O.Babu v. Sree Gokulam Chit & Finance Co. Pvt.Ltd.

Case brief

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What did the court decide?

What the court decided

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Statutes considered

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