Allowed

G.P.Chandran, Lavanya, v. R.Mohandas, S/O. Rose

Kerala HC6 Feb 2020CRL.A/2216/2007

Case brief

AI extract

What is this about?

In two cheque dishonour appeals arising under the Negotiable Instruments Act, the High Court set aside the trial court's acquittal. The court found the trial court failed to appreciate evidence regarding the borrowers' financial capacity and the improbability of a estranged husband withdrawing the wife's prosecution. The cases were remanded for fresh consideration of existing evidence without addu

What did the court decide?

The common judgment of acquittal was set aside, and the cases were remanded back to the trial court for proper appreciation of evidence on record.

G.P.Chandran, Lavanya, Vs R.Mohandas, S/O. Rose — Cheque Dishonour | Kerala HC (2020)

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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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THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947

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CRL.A.No.2216 OF 2007

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AGAINST THE JUDGMENT IN ST No.59/2000 DATED 25.02.2003 OF JUDICIAL FIRST CLASS MAGISTRATE -V,(SPECIAL COURT FOR MARKLIST CASES), THIRUVANANTHAPURAM.

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APPELLANT/PETITIONER/COMPLAINANT:

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G.P.CHANDRAN, LAVANYA,

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MELETHUMELE, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.M.SREEKUMAR

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RESPONDENTS/ACCUSED AND THE STATE:

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1 R.MOHANDAS, S/O. ROSE, T.C.5/709, GRACE COTTAGE, PADMA VILASAM ROAD,, PEROORKADA P.O., THIRUVANANTHAPURAM.

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

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R1 BY ADV. RAM MOHAN.G.

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R1 BY ADV. SRI.RAM MOHAN.G. R1 BY ADV. SRI.G.P.SHINOD

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SUMOD P.N,PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-12-2019, ALONG WITH CRL.A.2235/2007, THE COURT ON 06-02-2020 DELIVERED THE FOLLOWING:

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CRL.A.Nos.2216/07& 2235/07 2

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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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THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947

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CRL.A.No.2235 OF 2007

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AGAINST THE ORDER/JUDGMENT IN CC No.355/2002 DATED 25-02-2003 OF JUDICIAL FIRST CLASS MAGISTRATE -V,(SPECIAL COURT FOR MARKLIST CASES), THIRUVANANTHAPURAM.

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APPELLANT/COMPLAINANT:

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PRASANNA, D/O. SARASAMMA, RESIDING AT LAVANYA,T.C.10/1329, MELETHUMELE, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.M.SREEKUMAR

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RESPONDENTS/ACCUSED&STATE:

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1 R.MOHANDAS, S/O. ROSE, T.C.5/709, GRACE COTTAGE, PADMA VILASAM ROAD, PEROORKADA P.O., THIRUVANANTHAPURAM.

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

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R1 BY ADV. SRI.RAM MOHAN.G. R1 BY ADV. SRI.G.P.SHINOD

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SUMOD P.N,PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-122019, ALONG WITH CRL.A.2216/2007, THE COURT ON 06-02-2020 DELIVERED THE FOLLOWING:

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CRL.A.Nos.2216/07& 2235/07 3

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JUDGMENT

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[ CRL.A.2216/2007, CRL.A.2235/2007 ] Dated this the 6^th day of February, 2020

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Both these appeals have been originated from a common judgment dated 25.02.2003 of Judicial First Class Magistrate Court-V (Special Court for Mark List Cases), Thiruvananthapuram in CC No.355/2002 and ST No.59/2000.

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By the common judgment, the trial court has found that the accused is not guilty in both cases for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act') and acquitted them under Section 255 (1) of the Code of Criminal Procedure (for short 'the Cr.P.C.').

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The aggrieved complainant in both the cases have approached this Court in the appeals on hand. The facts of the case in CC No.355/2002 relevant for a consideration of the appeals are narrated hereunder:

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CRL.A.Nos.2216/07& 2235/07 4

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On 26.03.1999 the accused borrowed Rs.2,00,000/-

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from the complainant and towards discharge of the said amount, a cheque bearing No. 105838 dated 26.03.1999 for Rs.2,00,000/-, drawn from State Bank of Travancore, Perurkada branch was issued. The cheque was presented before the Bank for encashment. But it was dishonoured as per memo dated 03.04.1999 indicating the reason, “funds insufficient”. The intimation regarding dishonour of the cheque was received by the complainant, and consequent to that, a registered lawyer notice dated 19.04.1999 was issued. The accused neither responded to the notice nor paid the amount covered by the cheque. Therefore, the complaint to prosecute the accused was launched under Section 142 N.I. Act and that has been taken on file by the Additional Chief Judicial Magistrate Court, Thiruvananthapuram as CC No.198/1999.

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In S.T No. 59/2000, the facts of the case are as follows:

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A sum of Rs.85,000/- was borrowed by the accused from the complainant and towards discharge of the said

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CRL.A.Nos.2216/07& 2235/07 5

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amount, a cheque for Rs.85,000/- was drawn from his bank on 26.03.1999 and issued. The cheque was presented before the Bank for encashment and was returned dishonoured for the reason “referred to drawer”. The intimation of dishonour was received by the complainant and thereupon a lawyer notice dated 10.04.1997 was issued to the accused demanding repayment. Notice was received by the accused but was not responded by sending a reply notice or making payment of the money covered by the cheque. In the aforesaid circumstances, prosecution was launched under Section 142 N.I. Act, which was taken on file by the Additional Chief Judicial Magistrate Court, Thiruvananthapuram.

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Thereafter both cases were transferred to Judicial First Class Magistrate Court-V (Special Court for Mark List Cases), Thiruvananthapuram and re-numbered as C.C No.355/2002 and S.T No.59/2000.

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On appearance of the accused after serving copies of relevant records, the accusations levelled against were read over and explained to him. He denied all those and

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CRL.A.Nos.2216/07& 2235/07 6

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pleaded not guilty. Thereupon trial was held in both cases jointly.

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Before the trial court, the complainant in the respective prosecutions were examined as PWs 1 and 2. Exts.P1, P1(a) and P2 to P6 were also marked. The accused is common in both cases and he tendered oral evidence as DW1 and Exts.D1 and D2 were also marked. After appreciating the evidence and evaluating the arguments advanced by the respective counsel, the court below found that the complainant has thoroughly failed in establishing the guilt against the accused and thereupon passed an order acquitting the accused. In the above circumstances, the complainant was constrained to prefer these appeals.

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It is contended by Smt.Sathy, the learned counsel for the appellant in both cases that satisfactory evidence have been let in by the complainant in both cases to establish the transaction which caused the issuance of the disputed cheques. PW1 had also adduced evidence to establish that Rs.2,00,000/- was borrowed from her by the accused and the cheque in question was issued towards

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CRL.A.Nos.2216/07& 2235/07 7

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discharge of the liability arising out of it. According to PW2, Rs.85,000/- was borrowed from him and the disputed cheque was issued towards discharge of the debt. It is further established from the materials that the cheques were dishonoured for the reasons. PWs 1 and 2 have been confronted with by the counsel for the accused with reference to a transaction of sale of property consequent to the execution of an agreement for sale. It is true that both PW1 and PW2 have admitted during their examination that an agreement for sale was executed prior to the transactions referred to in the complaints in question. The accused has produced Exts.D1 and D2 with a view to rebut the presumption. Ext.D1 marked in evidence is nothing but a receipt issued by the accused for withdrawing the case pending before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, after receiving Rs. 57,000/-(inclusive of Rs.40,000, its interest and the expenses of the court). It was marked in evidence by the court below as the signature therein was admitted by PW2.

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CRL.A.Nos.2216/07& 2235/07 8

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Ext.D2 is a photocopy of an application allegedly moved before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram in S.T No.417/1997. Though it is stated in the application that the entire amount covered by cheques bearing No.08674 and 695009017 has been received from the accused and therefore, the prosecutions are not desired to be proceeded with, it is pertinent to note that the document is not a certified copy. It is true that it bears the seal and signature of the Junior Superintendent of the court. But there is nothing to show that the said application was filed before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. It is true that both the documents bear the signature which was admitted as his own by PW2. But the specific case of PW2 was that the documents have been obtained forcibly from him at the Police Station. Moreover, evidence have come on record from PW1 and PW2 to the effect that they were living separated from 1996 onwards. It has also come out in evidence that both of them were living in different houses and have separate ration cards. When she was confronted

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CRL.A.Nos.2216/07& 2235/07 9

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on the factum that the ration card stands in the name of PW1 also takes in the name of her husband, it was explained that at the time when it was issued, the marital relationship was not severed.

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It cannot be digested in the above context how PW2, the husband has signed a document undertaking to withdraw the prosecution filed by PW1, his wife. If they are living in such a strained relationship as was spoken by the parties, it is improbable for the husband to sign a document on behalf of the wife.

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The prosecutions are separately filed and the complainants in the respective prosecutions have alleged that Rs.2,00,000/- and Rs.85,000/- respectively have been borrowed by the accused from them. Going by the evidence on record, it is pertinent to note that the accused failed to cross examine either PW1 or PW2 with reference to their source of income to advance huge amounts as above.

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Moreover, the case set up by the accused was that Rs.40,000/- was paid as advance sale consideration at the time when an agreement for sale of a property was entered

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CRL.A.Nos.2216/07& 2235/07 10

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into and since the sale was not fructified, the amount of Rs.40,000/- was demanded and at the Police Station, two signed cheques were drawn and issued in favour of the complainant. It is also the case of the accused that two cheques obtained were utilised for the purpose of launching prosecutions on hand falsely. Circumstances evidenced being so, there is absolutely no justification for the trial court to take a view that the case of the accused is probable and to acquit him. When evidence is available for the trial court, it ought to have appreciated the same and it ought not to have gone after conjunctures and surmises to come to a conclusion. This Court finds that in both the prosecutions, the trial court failed in appreciating the evidence in its proper perspective.

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In the above circumstances, this Court finds it appropriate to set aside the common judgment under challenge and to remand the prosecution for consideration afresh in the light of the evidence on record.

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In the result, the appeals are allowed. The common judgment under challenge is set aside. Both cases

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CRL.A.Nos.2216/07& 2235/07 11

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are remanded back to the trial court for a proper appreciation and consideration of the evidence already on record. The parties are not permitted to adduce evidence afresh. Since the cases are relating to the year 2000 and 2002, the trial court shall see that those are disposed of within a period of 3 months from the date of receipt of a copy of this judgment. The parties shall appear before the trial court on 15.10.2020 and co-operate with the proceedings of the case as fixed by the trial court. The observations made by this Court in the judgment are strictly meant for the cases on hand only and the trial court shall have an independent approach to the cases before it and dispose it of untrammeled by any of the observations made by this Court touching the merits.

Sd/-

MARY JOSEPH

JUDGE

ttb/JJ

G.P.Chandran, Lavanya, v. R.Mohandas, S/O. Rose

Case brief

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G.P.Chandran, Lavanya, v. R.Mohandas, S/O. Rose

Case brief

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