Dismissed

Sudharsanan v. Harsha Krishna

Kerala HC2 Apr 2019CRL.A/659/2006

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the appeal against acquittal in a cheque bounce case. The court held that the prosecution failed to prove the execution of the cheque or that it was issued for a legally dischargeable debt, as mere admission of signature without corroborative evidence of the admitted debt is insufficient under Section 139.

What did the court decide?

The judgment of the court below acquitting the accused is not interfered with and the appeal is dismissed.

Sudharsanan Vs Harsha Krishna — 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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TUESDAY, THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941

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CRL.A.No. 659 of 2006

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AGAINST THE ORDER OF ACQUITTAL IN C.C.NO.16/2005 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE/ PRINCIPAL MUNSIFF, NEYYATTINKARA

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APPELLANT/ COMPLAINANT :

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SUDHARSANAN,

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S/O. VIKRAMAN NAIR, `LAVANYA', THOZHUKKAL DESOM, NEYYATTINKARA VILLAGE.

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BY ADV. SRI.G.SUDHEER

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RESPONDENTS/ ACCUSED & STATE :

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1 HARSHA KRISHNA, KRISHNA BHAVAN, KAVALAKULAM, KODANGAVILA P.O.,, NEYYATTINKARA.

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

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BY PUBLIC PROSECUTOR 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.A.No. 659 of 2006

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JUDGMENT

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Appellant is the complainant and

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respondent is the accused in CC.No.16/2005 on the files of the Judicial First Class Magistrate/ Principal Munsiff, Neyyattinkara wherein the first respondent is the accused. CC.No.16/2005 is a private complaint alleging offences punishable under Sections 420 IPC and Section 138 of the Negotiable Instruments Act. The complainant's case is that the

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accused borrowed Rs.1,40,000/- from the complainant and in order to make repayment of that amount, she issued Ext.P1 cheque dated 17.12.2001 drawn on State Bank of Travancore, Neyyattinkara Branch. The complainant presented

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the cheque for encashment but it was returned unpaid for want of funds. The cheque was returned on 21.01.2002. Thereafter lawyer notice was

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CRL.A.No. 659 of 2006

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issued to the accused on 25.01.2002, which was accepted by her as evidenced by Ext.P6. But she has not paid the amount.

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After evaluating the entire evidence,

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the court below had acquitted the accused against which this appeal has been preferred. The accused has admitted the signature in Ext.P1 cheque and had taken a contention that cheque was issued to her husband, who in turn handed over the same to the complainant. According to the accused, she gave Ext.P1 cheque to her husband to accept her salary as she was on maternity leave. At the same time, the accused has taken another contention that she was on duty on 17.12.2001 at the time of issuing cheque to complainant. Ext.D1 was marked for proving the same. Accused has no contention that cheque was issued to the complainant by her

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CRL.A.No. 659 of 2006

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husband at an earlier point of time and no explanation was given by the accused that without using Ext.P1 cheque, how her husband obtained the salary.

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The learned magistrate has gone wrong

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in holding that the complainant had to prove the execution of Ext.P1 cheque. The learned magistrate had not considered that even the accused DW2 and her husband DW3 admitted that cheque was signed by accused and her husband handed it over to the complainant after borrowing money. For the reasons as urged above, the complainant prays for setting aside the judgment in CC.No.16/2005 acquitting the accused.

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Now the question to be considered is

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whether the finding entered by the learned magistrate is justifiable or not. It was the case of

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CRL.A.No. 659 of 2006

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the complainant that Ext.P1 cheque was issued to him by the accused after accepting Rs.1,40,000/-. The complainant was examined as PW1 and he had deposed that on 17.12.2001, he has paid the money to the accused and on that day itself, the cheque was issued. On the other hand, the accused has raised a contention that on that day, she was on duty at Neyyattinkara Railway Station. Thereafter, there was no chance for issuing the cheque on that day. Any how, the learned magistrate has come to a finding to the effect that the question of alibi taken by the accused would not stand and this finding as against the accused has not been challenged by filing an appeal.

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Now the question is whether the transaction effected between the complainant and the accused is proved by the prosecution. The

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CRL.A.No. 659 of 2006

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definite case of PW1 is that the accused, along with her husband approached him at his residence and after receipt of Rs.1,40,000/-, Ext.P1 cheque was issued. The accused had denied the transaction. According to her, Ex.P1 cheque was issued by her directly to her husband with the signature alone for drawing the salary from her account. DW3 is her husband. According to him, the cheque was given to the PW1 after receipt of Rs.5000/- from him. As per the evidence of DW2 and DW3, Ext.P1 cheque was not actually issued by the accused to PW1 after borrowing Rs.1,40,000/-. But it is admitted by PW1 that Ext.P1 cheque was handed over to him after the due execution. It is true that the accused has admitted her signature in Ext.P1 cheque. According to the version of the accused, she has handed over Ext.P1 cheque with the signature to her husband for

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CRL.A.No. 659 of 2006

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withdrawing her salary from the bank. PW1 has no such case. According to him, no authorization was given by the accused to fill up Ext.P1 cheque. But the definite case of the complainant is that Ext.P1 cheque was handed over to him after filling it up in every aspect. The general principle is that if the signature is admitted in the Negotiable Instruments Act, the due execution of the same is proved and if the execution of the cheque is proved, there arise presumption as envisaged under Section 139 of the Negotiable Instruments Act. The statement of accounts were produced by the accused, which was marked as Ext.D2. On verification of Ext.D2, it is proved that certain earlier cheques were encashed and the amount involved were Rs.2,500/- or lesser amount which were paid as per the withdrawals made by her husband, DW3. There is no evidence

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CRL.A.No. 659 of 2006

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to the effect that the complainant had Rs.1,40,000/- with him at the time of the alleged issuance of Ext.P1 document. The facts and circumstances would prove that the prosecution could not able to establish that Ext.P1 cheque was duly filled up by the accused and handed over to him after acceptance of Rs.1,40,000/-. There is no evidence to prove that whether the signature was subscribed by the accused in the presence of the complainant and other part of the cheque were filled up by the accused in the presence of the complainant. No independent witnesses were cited to prove that Ext.P1 cheque was duly executed by the accused and handed over to the complainant. There is absolutely no evidence to prove that how the complainant had acquaintance with this accused person. In the absence of such evidence, it is

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CRL.A.No. 659 of 2006

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difficult to believe the version of PW1 so as to convict the accused. When the prosecution alleged that the accused has alleged to have committed the offence under Section 138 of the Negotiable Instruments Act, the prosecution has to establish that Ext.P1 cheque was duly executed by the accused for legally dischargeable debt and no such evidence was forthcoming in this case. The lower court has considered the matter in detail and acquitted the accused.

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I do not find any ground to interfere with the judgment of the court below. Hence it is only liable to be dismissed.

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Sd/- ANNIE JOHN, JUDGE

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RKM

Sudharsanan v. Harsha Krishna

Case brief

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Sudharsanan v. Harsha Krishna

Case brief

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