Dismissed

Ponnamma v. Shaji

Kerala HC2 Apr 2019CRL.A/2349/2006

Case brief

AI extract

What is this about?

This court dismissed an appeal preferring by a complainant against the acquittal of an accused charged with dishonour of a cheque under Section 138 of the Negotiable Instruments Act. The court held that the appellant's evidence was inconsistent and insufficient to prove a legally enforceable debt. The accused rebutted the presumption under Section 139 of the Act regarding the consideration for the

What did the court decide?

The criminal appeal is dismissed; the judgment of acquittal is affirmed.

Ponnamma Vs Shaji — Cheque Dishonour | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941

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CRL.A.No. 2349 of 2006

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AGAINST THE ORDER/JUDGMENT IN CC 142/2001 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,KANJIRAPPALLY DATED 28-06-2002

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APPELLANT/COMPLAINANT:

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PONNAMMA, D/O NARAYANA PILLAI, PARASSERIYIL HOUSE, PANACKACHIRA, ERUMELI NORTH, AGED 36.

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BY ADV. SRI.LIJI.J.VADAKEDOM

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RESPONDENTSSTATE & ACCUSED:

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1 SHAJI, S/O RAGHAVAN, AGED 45, KARINGEZHACKAL HOUSE, MATTAPPALLY, ERUMELY NORTH.

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

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PP-SRI.K.B.RAMANAND

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Appl.2349/2006 2

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JUDGMENT

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The appellant is the complainant in CC No.142/2001 before the Judicial First Class Magistrate-I, Kanjirappally for the offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate dismissed the complaint on 28.06.2002 and acquitted the accused. The learned Magistrate did not please to consider that there is no specific denial of handing over of the cheque and further the execution of the cheque has not been denied. Therefore, the complainant is entitled to the presumption under Section 139 of the Negotiable Instruments Act. The gist of the case is that the accused has borrowed Rs.30,000/- from the complainant on 25.11.2000 on issuance of the cheque for the said amount on 26.12.2000. When it was presented before the bank, it got dishonoured due to want of sufficient funds in the account of the

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Crl.Appl.2349/2006 3

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accused and he failed to pay the amount even after receipt of the lawyer's notice intimating the dishonour of cheque and demanding the payment. On appearance, the particulars of offence were read over and accused pleaded not guilty.

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2. Thereafter, the appellant was examined as PW1 and Ext.P1 to Ext.P11 were marked. After questioning the accused under Section 313 of Cr.P.C,

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the accused has stated that he had received Rs.15,000/- from the complainant on 14.12.1999 and it was repaid with interest. Again he stated that he had signed in a blank paper affixed with a revenue stamp as a security for repayment for the said amount. After evaluating the entire evidence, the learned Magistrate held that the accused is not guilty of offence under Section 138 of the Negotiable Instruments Act and acquitted under Section 255(1) of the Cr.P.C.. Highly aggrieved by

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the judgment, the appellant has preferred this appeal by stating that the lower court has not considered the fact that the cheque was duly issued

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Crl.Appl.2349/2006 4

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after receipt of Rs.30,000/- and the learned Magistrate found that since execution of cheque is admitted, the complainant is entitled to get the benefit of presumption under Section 139 of the Negotiable Instruments Act.

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3. In this connection, I have gone through the entire evidence as well as the judgment of the Judicial First Class Magistrate-I, Kanjirappally.

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The definite case of the complainant is that the accused has borrowed Rs.30,000/- from him on 25.11.2000. During cross examination, PW1 has stated that she had been working abroad as a maid servant and there was a bank balance of Rs.35,000/- in her name. She has also given evidence to the effect that she has withdrawn the amount from her account and gave to the accused. During cross examination, Ext.D1 petition was handed over to her and she admitted that she has filed petition before the Lok Adalath, Kanjirappally for realizing Rs.32,000/-

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from the accused which was given to him on 16.12.1999. During re-examination, DW1 has stated

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Crl.Appl.2349/2006 5

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that the transaction alleged in this case is different from the said transaction. On analyzing the evidence of DW1, it was turned out that the complainant has no case that she has excess amount other than Rs.35,000/- kept in her account and it has also come out that she has alleged to have lent Rs.32,000/- to the accused for which she has filed petition before the Lok Adalath, Kanjirappally for getting back the amount from the accused. In fact she was having only Rs.35,000/- in her account and which was withdrawn on 16.12.1999. Accordingly, evidence of the PW1, she has given an amount after withdrawing the same from her own account. On the other hand, the DW1 was examined on the side of the defence, who is the Manager of Catholic Syrian Bank. He has produced Ext.D2 document, the account ledger of the complainant and deposed before the Court that the complainant had not withdrawn any amount during the year 2000 from her account. It was also deposed by the DW1 that during cross examination, that she

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had deposited Rs.30,000/- in her account on

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Crl.Appl.2349/2006 6

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26.11.1999 and it was withdrawn subsequently, that is, Rs.5,000/- on 01.11.1999 and Rs.25,000/- on 16.11.1999. Ext.P11 is the promissory note which was produced to prove that the accused has accepted Rs.32,000/- on 16.12.1999 corresponding to the said withdrawal from the bank. Now the case advanced in his complaint is that the complainant has withdrawn Rs.35,000/- from the bank and gave it to the accused on 25.11.2000, but evidence would show that she has already withdrawn the amount on 16.12.1999 that is nearly one year back from the date of issuance of the cheque. So the case advanced by the complainant is found to be incorrect. On the other hand, the accused could able to rebut the presumption under Section 139 of the Negotiable Instruments Act that

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the cheque was not drawn towards a legally dischargable debts.

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4. The complainant has got an inconsistent case and the evidence adduced by her is sufficient enough to prove that Ext.P1 cheque was not issued for a legally dischargable debts. The lower court had

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Crl.Appl.2349/2006 7

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evaluated the evidence and relied on the inconsistencies and discrepancies in the evidence adduced by the complainant and held that the accused is not guilty of offence under Section 138 of the Negotiable Instruments Act. I do not find any ground to interfere with the judgment of the lower court. Hence the appeal is only liable to be dismissed.

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In the above result the appeal is dismissed.

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Sd/-

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ANNIE JOHN

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JUDGE

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YKB

Ponnamma v. Shaji

Case brief

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Ponnamma v. Shaji

Case brief

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