Allowed

Lissy Thankachan v. Binod Kumar B.

Kerala HC25 Sept 2018Crl.Rev.Pet/884/2013

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision petition filed by an accused convicted under Section 138 of the Negotiable Instruments Act. The court held that the prosecution failed to prove the execution of the cheque because the complainant could not establish the source of funds or the necessity of borrowing, given the appellant's financially sound position due to her husband working abroad.

What did the court decide?

The revision petition is allowed, the conviction and sentence are set aside, the appellant is acquitted, the bail bond is discharged, and she is entitled to reimbursement of any amount deposited.

Lissy Thankachan Vs Binod Kumar B. — 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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TUESDAY ,THE 25TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940

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Crl.Rev.Pet.No. 884 of 2013

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CRA 154/2012 of SESSIONS COURT, PATHANAMTHITTA

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ST 911/2008 of J.M.F.C.-I, PATHANAMTHITTA

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REVISION PETITIONER/APPELLANT/ACCUSED:

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LISSY THANKACHAN

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W/O. THANKACHAN, KOLLAMPARAMBIL HOUSE, PUTHUMALA.P.O., PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.M.T.SURESHKUMAR

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RESPONDENTS/RESPONDENTS/COMPLAINANT:

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1 BINOD KUMAR B. KARIKAPOIKAYIL, KALANJOOR.P.O.-689645.

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2 STATE OF KERALA

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REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031.

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OTHER PRESENT:

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SRI. E C BINEESH-PUBLIC PROSECUTOR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No. 884 of 2013

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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 (for short “the N.I.Act”).

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2. Heard.

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3. The learned counsel for the revision

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petitioner has submitted that since the complainant could not establish that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I.Act, the conviction

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and sentence passed by the courts below cannot be sustained.

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4. The revision petitioner is the motherin-law of the first respondent herein, who is the complainant before the trial court. The contention of the complainant is that the revision petitioner received amounts on various

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dates and towards the discharge of the said

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Crl.Rev.Pet.No. 884 of 2013

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liability, the revision petitioner issued Ext.P1 cheque in favour of the complainant. However, the revision petitioner had a contention that the revision petitioner did not borrow any amount from the complainant. It is further contended by the revision petitioner that the daughter of the revision petitioner eloped with the complainant and at the time of eloping with the complainant, she had taken the passbook and a blank signed cheque of the revision petitioner and the said cheque had been misutlised by the complainant to file the present complaint.

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5. In order to prove the case of the

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complainant, the complainant himself got examined as PW1. PW1 admitted that the daughter of the complainant eloped with PW1 and thereafter, they

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got married in accordance with the customary rites of PW1. PW1 is conducting an engineering workshop in his village. PW1 admitted that the

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Crl.Rev.Pet.No. 884 of 2013

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husband of the revision petitioner is working abroad. PW1 had occasion to see him only once as he was working abroad. PW1 was conducting an engineering workshop for six years prior to his examination before the court. PW1 stated that the amounts which he got on various dates from his work had been given to the revision petitioner. However, he did not produce his passbook even though he stated that in order to prove the source, he should produce his passbook. Exts.D1 and D2 and Exts.X1 to X3 coupled with the evidence of DW1 to DW4 would show that the revision petitioner had given complaints in different police stations against PW1 in connection with the eloping of her daughter with PW1 and also in connection with taking away of

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the gas cylinder, passbook and blank signed cheque leaf of the revision petitioner by the wife of PW1, who is the daughter of the revision

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Crl.Rev.Pet.No. 884 of 2013

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petitioner. The evidence of PW1 and DW2 would show that the husband of the revision petitioner was working abroad for so many years. It was stated by PW1 that a gas cylinder was given to Adoor Police Station by PW1 as directed by the police. Having gone through the evidence on record, I am satisfied that the revision petitioner had no need to borrow any amount from PW1, particularly when the husband of the revision petitioner was admittedly working abroad. The evidence of PW1 and DW2 would indicate that PW1 was not having any business generating much income. PW1 also did not state anything about the reason which necessitated the revision petitioner to borrow the amount from PW1. PW1 stated that the daughter of the revision

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petitioner eloped with him on 23.1.2008. The cheque is dated 22.1.2008. It appears from Ext.P2 dishonour memo that the cheque was

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Crl.Rev.Pet.No. 884 of 2013

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presented before the bank only on 12.2.2008. If the revision petitioner had actually issued the cheque to PW1, the said cheque would have been naturally presented before the bank immediately after the issuance of the same or at least immediately after the incident of eloping of the daughter of the revision petitioner with PW1, particularly when the relationship between the revision petitioner and PW1 was strained in connection with the incident of eloping of the daughter of the revision petitioner with PW1. However, the cheque was presented much after the incident of eloping. Having gone through the relevant inputs, I am of the considered view that the complainant could not establish the source of income for advancing the amount to the revision

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petitioner. The complainant could not also state anything about the purpose for which the money

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was borrowed by the revision petitioner. That

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Crl.Rev.Pet.No. 884 of 2013

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apart, the evidence on record including the evidence of PW1 and DW2 would clearly indicate that the revision petitioner was financially sound as her husband had been working abroad for so many years. In view of the above reasons, I am of the view that the evidence of PW1 is not at all sufficient to prove the execution of Ext.P1 cheque by the revision petitioner as contemplated under Section 138 of the N.I.Act. Having gone through the relevant inputs, it appears that the contention of the revision petitioner is probable. Therefore, 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. Consequently, the conviction and sentence passed by the courts below cannot be sustained.

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In the result, this revision petition stands

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allowed, setting aside the conviction and

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Crl.Rev.Pet.No. 884 of 2013

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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

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bond of the revision petitioner stands discharged. Needless to state that if the revision petitioner had already deposited any amount before the trial court in connection with this case, the revision petitioner is entitled to reimbursement of the said amount from the trial

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court.

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Sd/-

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B.SUDHEENDRA KUMAR

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JUDGE

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Scl.25.9

Lissy Thankachan v. Binod Kumar B.

Case brief

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Lissy Thankachan v. Binod Kumar B.

Case brief

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