Allowed

Biju Sukumaran v. M.J.Francis

Kerala HC1 Feb 2018Crl.Rev.Pet/99/2012

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the revision petition, setting aside the conviction and sentence under Section 138 of the Negotiable Instruments Act. The court held that since the complainant failed to produce account details proving the cheque amount was due on the date of issue, the accused's contention that the cheque was issued as security remained valid.

What did the court decide?

Conviction and sentence under Section 138 of the N.I. Act set aside; revision petitioner acquitted and bail bond discharged.

Biju Sukumaran Vs M.J.Francis — 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 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939

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Crl.Rev.Pet.No. 99 of 2012

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CRA 537/2010 of ADDITIONAL DISTRICT COURT ADHOC), ERNAKULAM CC 1237/2001 of J.M.F.C.-I,KOCHI

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REVISION PETITIONER(S)

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BIJU SUKUMARAN,S/O. SUKUMARAN, VANCHIPURAIKKAL HOUSE, MANJOOR, KOTTAYAM DISTRICT

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BY ADV.SRI.P.N.SUKUMARAN

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RESPONDENT(S):

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

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2. M.J. FRANCHIS, S/O. M.G. JOSEPH, aged 49, Partner, M/s. Electrical Sales Corporation, Opposite college Ground, M.G. Road, Ernakulam – 682 016

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R1 BY ADV. PUBLIC PROSECUTOR SRI.E.C. BINEESH R2 BY ADV. SRI.BABU CHERUKARA

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-02-2018,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. 99 of 2012

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Dated this the 1^st 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 N.I.Act.

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2. Heard both sides.

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The learned counsel for the revision petitioner

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has argued that eventhough the revision petitioner had a contention that the cheque in question was issued as security and the amount covered by Ext. P2 cheque was not due to the complainant, the complainant did not incline to produce the details of the accounts relating to the transaction between the complainant and the revision petitioner and in the said circumstances, the conviction and sentence passed by the courts below cannot be

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Crl. R.P. No. 99 of 2012

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sustained.

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The learned counsel for the 2^nd respondent, who is the complainant before the court below, on the other hand, has argued that since the revision petitioner had admitted in the notice with regard to the liability, the non-production of the documents relating to the accounts pertaining to the transaction is not fatal.

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It is not disputed that Ext. P2 cheque was issued in this case in discharge of the liability which arose out of a business transaction. The Apex Court in M.S.Narayana Menon Alias Mani v. State of Kerala and Another [(2006) 6 SCC 39] held that in case of dishonour of a cheque alleged to have been issued towards outstanding dues in business dealing, if the account books are not produced by the complainant, the contention of the accused that the cheque was issued as security can be believed and the conviction can be set aside. This court in Crl.R.P. No. 664 of 2014 followed the above decision of

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Crl. R.P. No. 99 of 2012

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the Supreme Court and held that if the transaction is a business transaction and the accused takes a contention that the cheque was issued as a security or the amount covered by the cheque was not due from the accused as on the date when the cheque was issued, the account details pertaining to the outstanding dues must be produced by the complainant to prove that the amount covered by the cheque was due as on the date when the cheque was issued. Otherwise, it cannot be said that the amount covered by the cheque was due to the complainant from the accused as on the date when the cheque was issued and consequently, the contention of the accused that a blank signed cheque was issued by him as security, cannot be disbelieved.

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In this case, the revision petitioner had a contention that the revision petitioner had issued Ext. P2 cheque as a security to one Benoy, from whom the complainant had collected the same. The revision petitioner in the reply notice stated that he had issued the cheque to the complainant. However, the amount covered

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Crl. R.P. No. 99 of 2012

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by the cheque was disputed by the revision petitioner. In the reply notice also, the revision petitioner had a contention that the cheque in question was issued as a security and the amount covered by the cheque was not due to the complainant. It is settled law that the accused can take any number of contentions. However, he must be able to prove at least one of his contentions by the yardstick of preponderance of probabilities and possibilities from the materials on record. In this case, the sum and substance of the contention of the revision petitioner is that the cheque in question was issued as a security and the amount covered by the said cheque was not due to the complainant as on the date of the cheque. During the cross-examination of PW1 also, the revision petitioner had taken the same contention. Even then, the complainant did not incline to produce the details of the account of the revision petitioner relating to the transaction involved in this case to prove that the amount covered by Ext. P2 cheque was due to the complainant from the revision petitioner on the date when the cheque was issued. In the said circumstances, it cannot

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Crl. R.P. No. 99 of 2012

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be said that the complainant could succeed in proving 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 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 revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged.

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B. SUDHEENDRA KUMAR, JUDGE .

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ani/

Biju Sukumaran v. M.J.Francis

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Biju Sukumaran v. M.J.Francis

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