The Calicut HC dismissed the appeal of a cheque plaintiff. The appellant argued the cheque was issued for a debt despite the account closure. The court held the plaintiff failed to prove the borrowing occurred or the cheque was issued for debt, upholding the acquittal.
Crl. Appeal No.135/2006 is dismissed; the acquittal of the respondent is upheld.
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 MRS. JUSTICE ANNIE JOHN
FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941
CRL.A.No. 135 of 2006
AGAINST THE JUDGMENT IN CC 209/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, KALPETTA DATED 11-11-2005
APPELLANT/COMPLAINANT:
K.C. MUHAMMED, KURUMANNIL HOUSE,, MEENDERI, KALPETTA.
BY ADV. SRI.P.V.JYOTHI PRASAD
RESPONDENT/ACCUSED/STATE:
BY ADV. SRI.SUNNY MATHEW
SMT. MAYA M.N., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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JUDGMENT
The appellant is the accused in C.C. No. 209 of 2002 on the file of the Judicial First Class Magistrate Court, Kalpetta for an offence punishable under Section 138 of the Negotiable Instruments Act r/w Section 420 IPC.
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lawyer notice dated 15.09.1998 demanding the cheque amount. Thereafter, after receiving the lawyer notice on 22.09.1998, the accused sent a reply. According to the appellant, the accused issued the cheque with an intention to cheat him and in spite of demand, he has not paid the amount.
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contention that there is no such transaction as alleged by the appellant. In spite of that, he has raised a case that the accused was conducting a propitiatory concern in the name and style of 'Spectravide Communications at Meenanagady. While so, he has opened an account and subsequently Spectravide communication was converted into a partnership firm and one Biju Thomas and Devi Prasad were joined as partners. Thereafter, the account of the Spectravide Communication was closed on 16.06.1997. Thereafter, Biju Thomas and Devi Prasad shifted the partnership business to the house of of Biju Thomas without the knowledge and consent of the accused. While shifting the business, the table containing the personal belongings of the accused were also taken by them and Biju Thomas and Devi Prasad misappropriated one of the cheque leaves of the accused. The first respondent filed O.S. No. 62 of 1997 before the Sub Court, Bathery for getting back his personal belongings from his partners and Ext.D1 is the certified copy of the commission report. He has further argued that the accused has not borrowed any amount from the complainant and he has not issued any cheque to the complainant for discharging a legally enforceable debt or liability. It is an admitted fact that the first respondent is maintaining the account with the District Co-operative Bank, Meenangady. Ext.P1 is the extract of the ledger. Ext.P2 is the true copy of the account opening form. It is an undisputed fact that Ext.P5 cheque was issued to the first
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respondent by the above said Bank in his account. When Ext.P5 cheque was presented by the complainant, it was dishonoured as per Ext.P6 for the reason that 'the account was closed on 16.06.1997. From the evidence, it is quite clear that the appellant has given Rs.75,000/- to the first respondent on 03.01.1998 with a promise to return the amount by 03.06.1998. It is also the case of the first respondent that he has no previous acquaintance with the complainant. It is also an admitted fact that Ext.P5 cheque was issued from the account kept by the first respondent with the District Co-operative Bank, Wayanad. Indeed, the first respondent is bound to explain how the cheque came into the hands of the appellant. In order to establish this fact, the first respondent has adduced evidence to the effect that he was running a proprietary concern in the name of 'Spectravide Communication'. Ext.P3 is the extract of the ledger, which would show that the account from which Ext.P5 was issued in the name of 'Spectravide Communication'. It is also evident from the evidence of DW1 that he had converted it into a partnership firm and Deviprasad and Biju Thomas were joined as partners. Thereafter, the account of the 'Spectravide Communication' was closed by him. Exts.P2, P3 and P6 would prove the same. So, it is evident that on the date of the alleged transaction i.e., 03.01.1998 as well as on 03.06.1998, the account of the Spectravide Communication was not in existence. As per Ext.P4, it has come out in evidence that
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Cheque No. 124182 was not issued by him and it was seemed to have cancelled by him. Further, DW1 has adduced evidence to the effect that there was dispute between himself and his partners. Accordingly, he has filed O.S No. 62 of 1997 for getting back his properties from the possession of his partners. Ext.D1 is the certified copy of the Commission Report. The Commissioner was appointed on 26.09.1997 as per the application of the accused. This statement has not been disproved during the cross examination of DW1. When DW1 was examined, he has specifically stated that he has no financial transaction with the complainant and he has not borrowed Rs.75,000/- from the complainant and issued Ext.P5 cheque as alleged. This fact has been seriously challenged at the time of examination of DW1 also. It is also proved that the partners have shifted the business place to the house of one of his partners. According to DW1, he has first seen the appellant only before the Court. But, this fact was not challenged by the appellant's counsel at the time of cross examination of DW1. So, the contention which was raised by the first respondent was to the effect that he has not borrowed any account from the appellant and has not issued any cheque as admitted by the appellant/complainant. As far as the evidence of PW1 is concerned, he has no consistent case. According to him, the accused has borrowed the amount on 03.01.1998 and issued a cheque dated 14.08.1998 promising to return the amount by
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03.06.1998. In fact, there is nothing on evidence to prove that the cheque was issued either on 03.01.1998 or on 03.06.1998. The disputed cheque was seem to have issued at the time of demanding the amount back from the first respondent. PW1 has no case, either in the complaint or while he was examined in the chief, that the cheque was issued by the first respondent on the date of borrowing the amount. His definite case is that he has not issued the cheque. The evidence of PW1 in the cross examination is not inconsistent with his chief and the specific allegation in the complaint. Ext.P4 is the letter dated 16.06.1997 issued to the Bank for closing the account and the same would show that he informed the Bank on 16.06.1997 i.e, six months before the alleged transaction between the appellant and the first respondent. So, after analysing the evidence on both sides, I am of the view that the evidence adduced by PW1 is more probable than the case advanced by the appellant. So, the evidence adduced by the appellant is seemed to have more suspicious. It is true that during evidence, the appellant has not challenged any of the defence which was taken by PW1. The appellant has failed to establish that the first respondent has borrowed Rs.75,000/- and issued Ext.P5 in discharge of his debt. The court below has considered this fact in detail and ultimately came to the conclusion that the appellant has failed to establish that the first respondent has issued the disputed cheque for a legally enforceable debt and accordingly
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he found not guilty under Section 138 of the Negotiable Instruments Act. I do not find any ground to interfere with the order of the court below. Accordingly, this Crl. Appeal is dismissed.
sd/-
ANNIE JOHN, JUDGE.
Rv
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2 issues framed by the court
Whether the cheque was issued for a legally dischargeable debt or not.
Whether the appellant established that the respondent borrowed the money and issued the cheque for discharging the debt.
3 provisions across 3 enactments
K.C. Muhammed
S.P. Satheeshan
State of Kerala
Annie John
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
