Dismissed

Dileef B. v. Dileep Kumar and Another

Kerala HC10 Jun 2019CRL.A/531/2011

Case brief

AI extract

What is this about?

An appeal filed by the complainant against the acquittal of the accused in a cheque bounce case under Section 138 of the Negotiable Instruments Act. The court rejected the appeal, holding that the evidence failed to establish a legally dischargeable debt and the lower court correctly acquitted the accused.

What did the court decide?

The criminal appeal was dismissed with no interference to the judgment of acquittal of the appellant.

Dileef B. Vs Dileep Kumar and Another — 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 ANNIE JOHN

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MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941

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CRL.A.No. 531 of 2011

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AGAINST THE JUDGMENT DATED 25-01-2011 IN CC 148/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS, ERATTUPETTA

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APPELLANT :

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DILEEF B., S/O. BHASKARAN, CHORIKKAVIL HOUSE, PLASSANAL P.O., THALAPPALAM VILLAGE.

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BY ADVS. SRI.JOSEPH SEBASTIAN PURAYIDAM SMT.MABLE.C.KURIAN

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RESPONDENTS/ACCUSED & STATE :

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1 DILEEP KUMAR, MANGATTUKUNNEL HOUSE, MELAMPARA P.O., THALAPPALAM VILLAGE, PIN - 686 594.

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

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BY ADVS. SRI.BABY THOMAS SRI.GIGIMON ISSAC

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R2 BY SR. GOVERNMENT PLEADER SRI.K.B.RAMANAND

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.A.No. 531 of 2011

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JUDGMENT

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The appellant is the complainant in C.C. No. 148 of 2008 on the file of the Judicial First Class Magistrate, Erattupetta filed under Section 138 of the Negotiable Instruments Act.

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The case of the complainant is as follows:

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He entered into an agreement for the purchase of

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the property belongs to the accused and he had paid Rs.10,00,000/- in advance. Later, the transaction was

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cancelled and the first respondent/accused has repaid only Rs.7,00,000/- in cash and for the remaining Rs.3,00,000/- he issued a post dated cheque dated 05.08.2007 on 16.07.2007. When the cheque was presented for collection, the same was returned due to insufficiency of funds. Thereafter, the accused issued a lawyer notice intimating the dishonour of

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cheque and demanding the cheque amount.

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CRL.A.No. 531 of 2011

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PWs 1 and 2 were also examined on the side of

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the complainant and Exts.P1 to P8 were marked. No

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evidence was adduced on the side of the first

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respondent/accused.

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After the closure of the evidence, the accused/

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1st respondent was questioned under Section 313 Cr.P.C. He denied the charges levelled against him. The learned Magistrate, after trial, as per judgment dated 25.01.2011, found the first respondent not guilty of the offence and acquitted him under Section 255(1) Cr.P.C.

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The learned counsel for the appellant contended that the cheque was issued for a legally dischargeable debt and the documents produced by the appellant were not properly considered by the court below.

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The cheque was issued in connection with an agreement executed between the appellant and the respondent and in

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CRL.A.No. 531 of 2011

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order to pay the balance amount, the cheque was issued and

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this fact has also not been considered by the court below.

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Minor discrepancies in the oral evidence of witnesses ought not have been taken as a reason to acquit the first

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respondent/accused.

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The complaint was launched by the appellant under Section 138 of the Negotiable Instruments Act, on the strength of Ext.P1 cheque alleged to have been issued by the respondent for Rs.3 lakhs dated 05.08.2007. According to the appellant, the said cheque was presented for encashment but it was dishonoured unpaid with memo stating the reason “funds insufficient”. Thereafter, the appellant had issued lawyer notice, intimating the fact of dishonour of the cheque as well as demanding the cheque amount. The respondent received the notice, but did not repay the amount till now. The main argument of the counsel was that the respondent

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had entered into an agreement for the purchase of the property belongs to the respondent. Later, the said transaction was cancelled and in return of the advance money, the respondent has paid Rs.7 lakhs in cash and Rs.3 lakhs by way of cheque and the said cheque produced is a matter in dispute in this case. On the other hand, the respondent has contended that there was no such agreement in between the appellant and the respondent for the purchase of immovable property and he had never issued Ext.P1 cheque also. In addition to that, the respondent has contended that Ext.P1 cheque was given as a security to one Simon in the transaction between himself and the said Simon and that cheque was presented by the appellant before the bank. There is total denial on the part of the respondent regarding the transaction alleged to have entered between the appellant and himself. During examination, PW1

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admitted that he had acquaintance with Simon and he had transaction with the respondent also. Further, he has stated that the first respondent was in financial crisis and he has produced photostat copy of the agreement alleged to have entered between himself and the respondent. That document was marked as Ext.P8. The respondent has disputed the genuinety of Ext.P8 and contended that there was no such agreement entered between himself and the appellant. In fact, Ext.P8 is the photocopy of the agreement. Now the case of PW1 that the original of the document was handed over to the respondent while he has issued Ext.P1 cheque for the remaining cash and Ext.P1 was a post dated cheque and PW1 knew that appellant was in financial crisis. Under these circumstances, it is difficult to believe that the appellant had handed over the original agreement to the respondent while the alleged Ext.P1 cheque was issued to the

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CRL.A.No. 531 of 2011

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appellant. In fact there was no attempt on the part of the

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appellant to issue notice to the respondent to produce the original of Ext.P8 document, only if the appellant issues notice under Section 65 (c) of the Evidence Act, then Ext.P1 can be received as a secondary evidence. No such attempt was made on the part of the appellant. According to PW1, the respondent has issued cheque on 16.07.2007 dated 05.08.2007. From Ext.P1 cheque, it can be seen that such cheque was presented for ecashment only in December 2007. The cheque was returned on 01.01.2008 by the bank in which the respondent holds the account namely, the Meenachil East Urban Co-operative Bank Ltd., Melukavumattom Branch. The definite case of the appellant is that in return of the advance amount paid by him, the appellant had issued Ext.P1 cheque on 16.07.2007 and there was no explanation on the part of PW1 why he has presented such cheque in December 2007.

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PW1 has also produced Ext.P7 document in addition to Ext.P1 cheque. According to him, the respondent has executed Ext.P1 document also in favour of the appellant. In cross examination, PW1 has deposed that he asked the respondent a stamp paper signed by the respondent in addition to the cheque. PW1 wanted a stamp paper signed by the respondent in addition to Ext.P1 document and PW1 did not want an agreement executed by the respondent also. If the transaction was on the strength of Ext.P8 agreement, definitely the appellant ought to have obtained another agreement for repayment of the balance amount. Absolutely, there is no evidence to prove that there is an agreement between the appellant and the respondent regarding the sale of the immovable property belongs to the respondent. The photocopy of Ext.P8 is not sufficient enough to prove the transaction. There is absolutely no evidence to prove that

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the respondent has received Rs.10 lakhs from the appellant as advance amount and no evidence was forthcoming to prove that he has received Rs.7 lakhs from the respondent. In fact this Ext.P1 cheque was alleged to have issued in continuation of the transaction effected as per the alleged Ext.P8 document. Regarding Ext.P7, PW1 has deposed during cross examination that Ext.P7 was written by the respondent. But in re-examination, he clarified that he did not know anything regarding Ext.P7 document. So, that also gives rise some doubt regarding due execution of Ext.P7 document. Further, while Ext.P7 was issued, there was no mention that Ext.P1 cheque was issued for the repayment of the balance amount remaining in the advance amount given by the appellant to the respondent and when the appellant alleges that Ext.P1 was duly executed by the respondent, the burden is upon him to establish the same. According to PW1, his

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father was present at the time of handing over of the cheque and he witnessed the same. PW1 further deposed that Ext.P1 cheque was handed over by the 1st respondent at his house. According to the evidence of PW1, no other person was present at the time of issuance of cheque in favour of the appellant. PW2 and PW3 were examined on the side of PW1. They have deposed that they have witnessed the handing over of Ext.P1 cheque to the appellant. So there is no consistent case on the part of the appellant that even though he has cited PW2 and PW3 as witnesses, they have not supported the case by PW1 and the father of PW1 was also examined in this case. According to PW3, Ext.P1 cheque was issued only as a security for payment of any amount. According to PW1, in chief examination he has stated that he has received Rs.3 lakhs on the same date and this fact has not been mentioned in Ext.P7 document also. According to

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CRL.A.No. 531 of 2011

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PW1, he has no case that issuance of Ext.P1 cheque was

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witnessed by any other person other than his father. But PW2 and PW3 has categorically stated that they have seen issuance of Ext.P1 cheque for Rs.3 lakhs. Ext.P1cheque is alleged to have signed and handed over by the respondent. The transaction which was witnessed by PW2 and PW3 might have been related to some other incident. Therefore, the evidence of PW1 regarding the issuance of Ext.P1 is termed as doubtful. Ext.P7 is also signed, blank and stamped document alleged to have issued by the respondent. It has also come out in evidence that the respondent was having some transaction with Simon. The definite case of the respondent is that the blank cheque and stamp paper handed over to Simon was misused by PW1. Moreover, PW1 has failed to establish that Ext.P1 cheque was issued in connection with the earlier agreement alleged to

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have executed by PW1 and the respondent in connection with the purchase of property belongs to the respondent and the definite case of PW1 is that Ext.P1 cheque was issued

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in continuation of the payment of the advance amount so received by the respondent for which also PW1 was not given any evidence. In the absence of such evidence, it is difficult to believe that Ext.P1 was issued for repayment of Rs.3 lakhs to enable him to pay advance amount alleged to have paid by the appellant to the respondent. The lower court has considered all these facts and ultimately came to a conclusion that Ext.P1 cheque was issued not for a legally dischargeable debt. The evidence on the side of PW1 is not substantiated the fact, as alleged. I do not find any ground to interfere with the judgment of the court below. Hence, the appeal is only liable to be dismissed.

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In the result, this appeal is dismissed.

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Sd/ANNIE JOHN, JUDGE

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RKM

Dileef B. v. Dileep Kumar and Another

Case brief

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Dileef B. v. Dileep Kumar and Another

Case brief

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