Allowed

Tomy Mathew v. Sojan Xavier

Kerala HC12 Feb 2020CRL.A/473/2007

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against an order of acquittal. The court held that the solitary evidence of the sole defence witness was unreliable and insufficient to rebut the statutory presumption under Section 139 NI Act, thus convicting the accused of.offence under Section 138 NI Act.

What did the court decide?

Judgment of trial court set aside; accused convicted and sentenced to imprisonment with fine of Rs.1,00,000.

Tomy Mathew Vs Sojan Xavier — 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.473 OF 2007

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AGAINST THE JUDGMENT IN CC 2694/2003 DATED 04-11-2006 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, MUVATTUPUZHA

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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 SOJAN XAVIER, CHIRAMEAL HOUSE, KUTHUKUZHI, 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 ADV. 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.473 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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Judgment dated 04.11.2006 in C.C.No. 2694 of 2003 of Judicial First Class Magistrate Court, Muvattupuzha (for short 'the trial court') is assailed in this appeal by the complainant.

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C.C.No.2694 of 2003 is a prosecution launched by the complainant under Section 142 of the Negotiable Instruments Act, 1881 (for short 'N I Act‘) alleging that the 1^st respondent, the accused has committed an offence punishable under Section 138 N I Act. After the trial, the trial court found the accused successful in rebutting the presumption under Section 139 N I Act and acquitted him under Section 255(1) Cr.P.C. The parties to this appeal are referred to as the accused and the complainant in accordance with their status before the trial court.

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The argument of the learned counsel for the accused was that the trial court failed to appreciate the evidence on record in its proper perspective and accordingly arrived at an erroneous finding that the accused has rebutted the presumption under Section 139 N I Act. Accordingly interference with the judgment is sought for.

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Before adverting to the contentions raised by the learned counsel for the accused, a brief discussion about the facts of the case

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CRL.A.No.473 OF 2007 3

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is made hereunder:

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The case projected by the complainant was that a sum of Rs.1,00,000/- was due to him from the accused and a cheque was issued by the latter towards discharge of that liability. The cheque was presented before the State Bank of India, Ayavana branch and was dishonoured for insufficiency of funds. A statutory legal notice was caused to be issued to the complainant, which was received by him but not replied. The amount claimed to be paid was also not paid. In the said circumstances, the complaint was filed under Section 142 N I Act to launch the prosecution.

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On appearance of the accused after process being served from the court, the accusations levelled against him in the complaint were read over to him. He pleaded not guilty to those and claimed to be tried. Accordingly trial was held.

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On the side of the complainant, himself was examined as PW1 and Exts.P1 to P5 were marked. On closure of the evidence of the complainant, the accused was questioned under Section 313 (1) (b) Cr.P.C with reference to the incriminating circumstances brought in evidence by the complainant. He denied all those and examined a witness as DW1.

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As per the pleadings in the complaint a sum of Rs.1,00,000/- was due from the accused to the complainant and a cheque for that sum was given towards discharge of the said liability.

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CRL.A.No.473 OF 2007 4

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The complainant has deposed strictly in tune with the pleadings raised in his complaint while being examined as PW1. The accused has suggested to the complainant during cross examination that the disputed cheque was issued not towards the sum borrowed by him but as share in a joint venture, proposed to be commenced by them after executing an agreement in that regard. The suggestion was denied by PW1. The oral evidence of PW1 was not found controverted by the accused during cross examination. In the said circumstances, the evidence tendered by PW1 is only to be relied on and presumption under Section 139 N I Act, to be drawn in favour of the complainant. The onus then would shift to the accused to rebut the presumption. The trial court found the accused successful in rebutting the presumption. In that scenario, it is incumbent upon this Court, in exercise of the appellate jurisdiction, to see whether the evidence available on record would support such a finding.

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A single witness was examined by the accused on his side, who is none other than an accused in another prosecution launched by the very same complainant. According to him, the accused in the case on hand was introduced to the complainant by him and handing over of a cheque by the accused to the complainant for a sum as his share to the joint venture proposed to be commenced, was witnessed by him. But, during cross examination he failed to mention the date on which the cheque was so issued and

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CRL.A.No.473 OF 2007 5

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the name of the bank wherefrom it was drawn. According to him, he had only seen handing over of a cheque by the accused to the complainant. It was also stated by DW1 during examination that an agreement was executed incorporating the terms of the proposed venture, but, he failed to produce one such in evidence. It cannot also be taken from the solitary evidence of DW1 that the cheque witnessed as given was towards contribution of the share of the accused to the business proposed to be commenced. It is also discerned from the version of DW1 during cross examination that he was an accused in a prosecution launched under Section 142 N I Act by the complainant in the case on hand for the reason that the cheque issued by him to discharge a liability was bounced for insufficiency of funds. The complainant was evidenced as a common creditor of both accused and DW1. Therefore, the version of DW1 can only be viewed as one given after colluding with the accused. Therefore, the finding of the trial court that the accused has successfully rebutted the presumption is devoid of merits.

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From an overall scrutiny of the evidence tendered by the complainant, it is established that disputed cheque was issued by the accused towards discharge of Rs.1,00,000/- borrowed by him. The presumption under Section 139 N I Act will be applicable in the above circumstances. The accused has thoroughly failed in it's attempt to rebut the presumption. In such a circumstance, the case of the

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CRL.A.No.473 OF 2007 6

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complainant is only to be taken as established. The court below failed in finding so and therefore is highly unjustified. In view of that the judgment under challenge deserves reversal.

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In the result, the appeal is allowed. The judgment under challenge is set aside. The accused is found guilty of the offence under Section 138 N I Act. He is convicted and sentenced to undergo imprisonment till rising of the court and to deposit in court a sum of Rs.1,00,000/- as fine within a period of two months from the date of receipt of a certified copy of this judgment. The fine amount when paid shall be defrayed to the complainant as compensation. On default of deposit of fine within the granted time, the accused shall also undergo simple imprisonment for a period of two months. The trial court shall see that the sentence is executed without failure.

Sd/-

MARY JOSEPH

JUDGE

NAB/ttb

Tomy Mathew v. Sojan Xavier

Case brief

What is this about?

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Tomy Mathew v. Sojan Xavier

Case brief

What is this about?

What did the court decide?

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