Dismissed

Santhakumar v. Musammil

Kerala HC14 Oct 2019Crl.L.P./295/2019

Case brief

AI extract

What is this about?

This criminal leave petition challenged an acquittal by the trial court in a cheque bounce case. The High Court observed that while the complainant's absence raised issues regarding the presumption of liability, the trial court correctly relied on unoposed evidence (pass book) showing repayment, thereby rebutting the presumption.

What did the court decide?

Leave to file appeal under Section 373 CrPC against the acquittal order in S.T No. 3870/2014 is declined.

Santhakumar Vs Musammil — Cheque Dishonour | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941

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Crl.L.P..No.295 OF 2019

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AGAINST THE JUDGMENT IN ST No.3870/2014 DATED 21-12-2018 OF JUDICIAL FIRST CLASS MAGISTRATE-I, VARKALA

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PETITIONER/COMPLAINANT:

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SANTHAKUMAR

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AGED 34 YEARS

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S/O. DEVAPRASAD, KALLUVILAKATH VEEDU, CHERUKUNNAM DESOM, VARKALA, THIRUVANANTHAPURAM DIST.

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BY ADV. SRI.R.ANILKUMAR

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RESPONDENT/ACCUSED AND STATE:

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1 MUSAMMIL S/O. MOHAMMAD MOITHEEN, PUTHEN VEEDU, RATHIKKAL, VARKALA, THIRUVANANTHAPURAM DISTRICT.

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2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA

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R1 BY ADV. SRI.R.S.KALKURA

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P.P. SMT. REHNA N.S.

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 14.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.L.P..No.295 OF 2019 2

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ORDER

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Dated this the 14^th day of October 2019

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This is a petition seeking leave to file appeal from judgment passed by Judicial First Class Magistrate Court-I, Varkala in S.T No.3870/2014. The accused was acquitted in the case by the trial court for the reason that the presumption that was available to the complainant stands rebutted by the evidence adduced by the accused. It is pertinent to note that the complaint was filed by the original complainant himself but he was not examined. The power of attorney holder of the complainant was examined in the case. The power of attorney holder can only be treated as a witness. Since the complainant was not examined, the court below ought to have acquitted the accused for failure of the complainant to establish execution of the disputed cheque. Instead of finding so, the trial court

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Crl.L.P..No.295 OF 2019 3

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arrived at a finding on the contrary and relying on Ext.D1, the pass book marked in evidence from the side of accused without any opposition from the complainant, held that the latter has successfully discharged it's onus of rebutting the presumption by establishing discharge of liablility of Rs.3,00,000/-, allegedly borrowed by him from the complainant. The marking of Ext.D1 was not opposed by the complainant. The entries, 100 in numbers found in Ext.D1 established satisfactorily that by paying Rs.3000/- per day for 100 days, the accused has repaid Rs.3,00,000/- allegedly borrowed by him from the complainant.

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On the basis of Ext.D1, the trial court has taken a view that the plea of discharge taken by the accused was satisfactorily established and that the presumption under Section 139 N.I. Act was rebutted.

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In the aforesaid circumstances, accused was acquitted for the offence under Section 138 N.I Act. In the backdrop, leave to file appeal, evenif granted will not enure to

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Crl.L.P..No.295 OF 2019 4

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the benefit of the complainant. With the evidence available, the

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appeal will only fail.

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For the foregoing reasons, leave petition is dismissed and

leave is declined.

Sd/-

MARY JOSEPH

JUDGE

JJ/

Santhakumar v. Musammil

Case brief

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Santhakumar v. Musammil

Case brief

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