Allowed

Tomy Mathew, v. K.M.Joseph

Kerala HC12 Feb 2020CRL.A/470/2007

Case brief

AI extract

What is this about?

High Court of Kerala allowed a criminal appeal against the acquittal of an accused in a cheque bouncing case. The Court held the trial court erred in discarding prosecution evidence and insufficiently appreciating the case, leading to the accused's conviction and sentencing.

What did the court decide?

Judgment under challenge set aside; accused convicted under Section 138 N.I. Act and sentenced to imprisonment and a fine of Rs.1,00,000.

Tomy Mathew, Vs K.M.Joseph — 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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WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941

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CRL.A.No.470 OF 2007

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AGAINST THE JUDGMENT IN CC 595/2003 DATED 04-11-2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS, MUVATUPUZHA

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APPELLANT/COMPLAINANT:

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TOMY MATHEW, EDATHATTEL HOUSE, KALOORKAD P.O., KALORRKAD,, ERNAKULAM DISTRICT.

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BY ADV. SRI.P.FAZIL

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RESPONDENTS/ACCUSED AND THE STATE OF KERALA:

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1 K.M.JOSEPH, KAITHAVELIYIL, KOZHIPPILLY, KOTHAMANGALAM, ERNAKULAM DISTRICT.

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

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R1 BY ADVS. PEEYUS A.KOTTAM SRI.PEEYUS A.KOTTAM R2 BY SRI.B.JAYASURYA, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.470 OF 2007 2

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JUDGMENT

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Dated this, the 12^th day of February, 2020

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The judgment dated 04.11.2006 in C.C.No.595 of 2003 of Judicial First Class Magistrate Court, Muvattupuzha (for short, 'the trial court') is assailed in this judgment. C.C.No.595 of 2003 is a prosecution launched by the appellant herein before the trial court under Section 142 of the Negotiable Instruments Act, 1881 (for short 'N I Act'). The trial court found after appreciation of the evidence on record that the accused has successfully rebutted the presumption and accordingly acquitted him. Against the finding of acquittal, the complainant is now in appeal before this Court.

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The case of the prosecution in brief are to the following effect:-

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A cheque dated 02.09.2001, drawn from State Bank of India, Varapetty Branch for a sum of Rs.1,00,000/- was issued by the accused to the complainant for discharging a previous debt. The cheque was presented at State Bank of India, Ayavana Branch for collection. It was dishonoured for insufficiency funds in the account of the accused. A lawyer notice was issued by the complainant on 12.09.2001 demanding the money covered by the cheque. The notice issued, though accepted by the accused on 29.09.2001, he failed to

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CRL.A.No.470 OF 2007 3

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pay the amount. Thereupon a complaint was filed to launch the prosecution under Section 142 N I Act. On appearance of the accused, after furnishing him with the copies of the relevant records, particulars of the accusations raised in the complaint were read over and explained to him. He pleaded not guilty. Accordingly, trial was held.

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On the side of the prosecution, the complainant himself was examined as PW1 and Exts.P1 to P5 were marked. On closure of the prosecution evidence, the accused was questioned with reference to the incriminating evidences brought on record by the complainant under Section 313 (1)(b) Cr.P.C. He denied all the allegations and maintained the stand of innocence.

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The trial court has raised the following points for consideration in the case on hand:-

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'(1) Whether the cheque issued by the accused was bounced for want of sufficient funds in the bank account of the accused?

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(2) Whether there was sufficient service of notice?

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(3) Whether there was a legally enforcible debt or liability?

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(4) Sentence or order?'

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According to the learned counsel, the trial court failed to appreciate the evidence in it's proper perspective, but jumped into a conclusion that the presumption under Section 139 N I Act is

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CRL.A.No.470 OF 2007 4

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attracted in the case on hand and the accused succeeded in rebutting that presumption. According to him, the judgment under challenge is liable to be interfered with, for that reason.

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It has come out in evidence of complainant as PW1 that he had a plan to start an Ayurvedic Resort Centre at Munnar and the accused agreed to join the venture by providing land support. Lateron, he realised that the accused has no landed property in his name and therefore he receded from the plan. According to him, Rs.1,00,000/- was given by him to the accused as part of the venture without security and though the plan failed, Rs.1,00,000/- given was not returned by the accused. According to PW1, the accused issued a cheque towards repayment at his residence. It was presented at the Bank and dishonoured for want of sufficient funds and therefore, the prosecution was launched.

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According to the accused an agreement was executed following the proposal to start the Ayurvedic Resort. According to him the disputed cheque was given by him to meet the initial expenditure to be incurred for the proposed plan. According to him, on realisation that the complainant did not possess the required qualification, he retreated from the proposed plan and the cheque given by him to the complainant was not returned. The accused put the above case as suggestion to the complainant during his examination as PW1 but he denied the same.

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The accused examined a witness on his side as DW1.

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CRL.A.No.470 OF 2007 5

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According to DW1 he had also a desire to join the proposed plan. According to him, he was introduced into the proposed project by the complainant as an Ayurvedic Doctor. According to him, an agreement was executed in that regard between him and the complainant. To derive money to meet the initial expenditure towards the project they decided to have the participation of the accused also in the venture. Thus, the accused issued a cheque and the said cheque is the disputed one in the case in question. According to DW1, lateron it was realised that the complainant does not have the required qualification for the conduct of the Ayurvedic Resort as stated by him and accordingly himself and the accused retreated therefrom.

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DW1 during cross examination has stated that Rs.1,00,000/- was given to the complainant at Kaveri Tourist Home, Kothamangalam whereas the version of PW1 was that the cheque for Rs.1,00,000/- was given to the complainant at his house.

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The version of PW1 that Rs.1,00,000/- was advanced by him towards the proposed venture remained controverted. A suggestion though was put by the accused to PW1 about a totally different circumstance, which caused the disputed cheque to reach the hands of the complainant, PW1 denied the same. The accused failed to adduce evidence on his own to establish his claim. He had examined a witness. In view of the inconsistent stands taken by DW1 as to the way in which Ext..P1 drawn from the account of the accused reached the hands of complainant itself, his version lost credence and

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CRL.A.No.470 OF 2007 6

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is liable to be discarded. Though, it has come out in evidence of DW1 that an agreement was executed as a pre-venture step, it was not forthcoming in evidence. Therefore, the case on hand is one where the complainant succeeded to establish the execution of the cheque and the accused thoroughly failed to rebut the presumption that came in the context, to attract in his favour. The trial court, has gone wrong in taking a contrary view and thereby acquitting the accused.

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In the result, the appeal is allowed. The judgment under challenge is set aside. The accused is found guilty for the offence under Section 138 N I Act and convicted. He is sentenced to undergo imprisonment till rising of the court and to pay a fine of Rs.1,00,000/(Rupees one lakh only). On default of payment of fine, the accused shall also undergo Simple Imprisonment for two months. The fine amount on payment shall be disbursed to the complainant as compensation under Section 357 (1)(b) Cr.P.C. The trial court shall take measures to procure the presence of the accused and to get the sentence executed without failure.

Sd/-

MARY JOSEPH

JUDGE

NAB

Tomy Mathew, v. K.M.Joseph

Case brief

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Tomy Mathew, v. K.M.Joseph

Case brief

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