Allowed

Sathya Bhama v. P.Venu

Kerala HC11 Feb 2020CRL.A/641/2005

Case brief

AI extract

What is this about?

The High Court allowed an appeal against the trial court's acquittal in a cheque dishonour case. The High Court held that the accused failed to rebut the statutory presumption under Section 139 N.I Act due to discrepancies in witness testimony and lack of corroborating evidence, reversing the acquittal and convicting the accused.

What did the court decide?

The appealed judgment is reversed; the accused is found guilty of the offence under Section 138 NI Act, convicted, and sentenced to prison and fine.

Sathya Bhama Vs P.Venu — Cheque Dishonour | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶4

TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941

¶5

CRL.A.No.641 OF 2005

¶6

AGAINST THE ORDER/JUDGMENT IN CC 46/2004 DATED 30-11-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II(MOBILE)KOZHIKODE

¶7

APPELLANT/COMPLAINANT:

¶8

SATHYA BHAMA

¶9

W/O.BALASUBRAHMANIYAN, SAGEE NIVAS, CHALAPPURAM P.O., EAST KOTTAPARAMBU, KOZHIKODE.

¶10

BY ADVS.SRI.K.B.GANGESH

¶11

SRI.ANIL GEORGE

¶12

SMT.ATHIRA A MENON

¶13

RESPONDENT/ACCUSED AND STATE:

¶14

1 P.VENU

¶15

S/O.PACHAN GOPALAN, BANGLAVE PARAMBU, NEAR KUKRUMBA BHAGAVATHY TEMPLE, MEENCHANTHA, GOVT. ARTS AND SCIENCE COLLEGE P.O., KOZHIKODE.

¶16

2 STATE OF KERALA

¶17

REP. BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.

¶18

R1 BY ADV. SRI.SUNNY MATHEW SRI.SONU AUGUSTINE R2 BY PUBLIC PROSECUTOR, SRI.T.R. RENJITH

¶19

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶20

CRL.A.No.641 OF 2005

¶21

¶22

JUDGMENT

¶23

Dated this the 11^th day of February 2020

¶24

This appeal is directed against judgment dated 30.11.2004 of Judicial First Class Magistrate Court-II (Mobile), Kozhikode (for short, 'the trial court) in C.C.No.46/2004.

¶25

The accused faced trial for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act') and was found not guilty and acquitted under Section 255(1) Cr.P.C.

¶26

The aggrieved complainant has approached this Court in the captioned appeal. The facts of the case are summarized hereunder:-

¶27

The accused and the complainant were friends and in the month of August, 2001, a sum of Rs.1,00,000/-(Rupees One Lakh only) was borrowed by him from the complainant. When the amount was demanded back, the accused issued a cheque dated 18.10.2003 for Rs.1,00,000/- drawn on South Indian Bank Limited, Kozhikode. The cheque presented for collection was returned dishonoured for insufficiency of funds in the account of the accused. A registered lawyer notice was sent to

¶28

CRL.A.No.641 OF 2005

¶29

¶30

the accused on 11.11.2003, demanding payment of the amount covered by the cheque. The notice was received by the accused and a reply notice was sent denying the claim made by the complainant in the notice and projecting a different story. It was contended that the cheque was issued to one Mrs.Nirmala, who was his employer and proprietor of 'Nirmala Agencies' to furnish as security to the complainant while availing a loan of Rs.20,000/- from a chitty of Sala Rs.40,000/- subscribed by her with the latter. The payment of the amount covered by the cheque being refused, the prosecution in question was launched under Section 142 of the N.I Act by filing a complaint before the Judicial First Class Magistrate Court-II (Mobile), Kozhikode.

¶31

On appearance of the accused pursuant to service of summons on him, the particulars of the offence were read over and explained to him. He pleaded not guilty and faced trial.

¶32

On the side of the complainant, herself deposed as PW1 and Exhibits P1 to P4 were marked. On the side of the accused Mrs. P. Nirmala, on whose behalf the accused claimed

¶33

CRL.A.No.641 OF 2005

¶34

¶35

to have issued the cheque as security was examined as DW1. Exhibits D1 and D2 were also marked in evidence.

¶36

On closure of the evidence of the complainant, the incriminating circumstances brought out in evidence by the complainant were put to the accused in the examination held under Section 313 (1)(b) Cr.P.C. The accused denied all those and stated that the cheque was given as security while a chitty run by the complainant was subscribed by Mrs.Nirmala, under whom he was employed as an office assistant. He strictly denied to have borrowed any sum from the complainant. After the closure of examination under Section 313(1)(b) Cr.P.C., the accused was called upon to enter on his defence. He examined Mrs.P. Nirmala his employer as DW1 and marked Exhibits D1 and D2.

¶37

The complainant was examined before the trial court as PW1. According to her, the accused was working in a shop near to her residence and was acquainted to her. Therefore, as per his demand, Rs.1,00,000/- was advanced by her in the month of August, 2001. It is her specific case that a signed cheque was given on demand being made for

¶38

CRL.A.No.641 OF 2005

¶39

¶40

re-payment of money, which when presented before the bank for collection was dishonoured for want of sufficient funds to honour it. According to PW1, notice was issued through a lawyer, which was not responded to by payment of money, but by a reply notice denying the liability of the accused to repay the amount. Since payment demanded was avoided, complaint was filed and the prosecution was launched.

¶41

The specific case projected by the accused in the reply notice was that he never had monetary dealings with the complainant. According to him, a signed cheque was given to his employer Smt.Nirmala who has been running 'Nirmala Agencies', as demanded by her, while availing a loan of Rs.20,000/- from a kuri of Rs.40,000/- subscribed by her with the complainant. According to him, the cheque was drawn from an account opened by Smt.Nirmala in a bank in his name and the cheque was issued to her for the purpose of giving it as security to the complainant.

¶42

The accused has suggested this story to PW1 during cross examination, which was outrightly denied by her. PW1 thus maintained her case that the disputed cheque was

¶43

CRL.A.No.641 OF 2005

¶44

¶45

given to her when the repayment of Rs.1,00,000/- borrowed from her was demanded from the accused. Therefore, the evidence tendered by PW1 remained static without being shaken in any respect during cross examination. In that context, there is every reason to take a view that the complainant has successfully discharged her burden to establish that the disputed cheque was drawn and issued by the accused towards discharge of the liability of repayment of Rs.1,00,000/- to him.

¶46

In that context, the presumption under Section 139 N.I Act would also come to operate in favour of the complainant. The presumption being a rebuttable one, the onus will shift in the circumstances aforesaid to the accused to rebut the same. The accused had examined Mrs.Nirmala, allegedly his employer as DW1 to establish the defence taken by him in the reply notice itself. The stand of the accused while sending reply notice is already discussed with. DW1 has identified Ext.P1 cheque as the one procured from the accused and given to the complainant. According to her the complainant demanded exorbitant rate of interest for the sum

¶47

CRL.A.No.641 OF 2005

¶48

¶49

borrowed by her and she was reluctant to pay the same. According to her, in that context, the prosecution in question was launched by misusing the cheque of the accused obtained and given to the complainant as security at the time when the loan of Rs.20,000/- was availed by her.

¶50

DW1 would also say that the accused had demanded the cheque back. But, he did not take any legal measures to get the cheque back. He approached her when the notice was received by him and the reply notice was prepared and sent by her to the complainant on his behalf. It is pertinent to note that while being questioned on the basis of the incriminating evidence brought against him by the complainant, apart from denial, the accused has taken a specific stand that a signed cheque was given by him to Mrs.Nirmala on her demand at the time of her subscription of the chitty with the complainant. Therefore, the accused has no case that cheque was demanded by Smt.Nirmala (DW1) and issued as security while loan of Rs.20,000/- was availed by her from the complainant. The version of DW1 being inconsistent from the stand of the accused during examination

¶51

CRL.A.No.641 OF 2005

¶52

¶53

under Section 313(1)(b) Cr.P.C, lost credence. The trial court failed to take note of the above discrepancy and relied on DW1's version blindly to reach a conclusion that the accused has rebutted the presumption successfully. Indisputably the finding of the trial court is incorrect.

¶54

Apart from all the above, it has come out in evidence that DW1 does not have the materials to establish that she was running 'Nirmala Agencies' and the accused was an employee under her. It was also brought out by the complainant that DW1 does not have the necessary documents in her possession to strengthen her version that a chitty was subscribed by her with the complainant, that a sum of Rs.20,000/- was availed therefrom as loan and that the cheque of the accused was procured and given to the complainant as security.

¶55

It is also surprising to note that the accused did not take any legal action against DW1 though his demand to return the cheque was not met with by her. DW1 also did not initiate any action against the complainant for the latter's demand for exorbitant interest after payment of the loan

¶56

CRL.A.No.641 OF 2005

¶57

¶58

amount in full and the retention of cheque of the accused given as security. The specific case of DW1 was that a cheque of herself and that of the accused were given as security on demand of the complainant. Then a doubt may also arise why the cheque given by DW1 was not used for launching the prosecution. DW1 has not spoken about any action taken against her by the complainant.

¶59

The above suspicious circumstances would tend to view the version of DW1, non-credit worthy and thereby to discard the same. In the context, the trial court is highly erred and unjustified in reaching a conclusion that the accused has rebutted the presumption under Section 139 N.I Act and to throw the complainant's case as not established. The accused having been failed to rebut the presumption, the complainant's case ought not to have been thrown out as not established and the accused acquitted. For the forgoing reasons, the judgment under challenge deserves to be reversed.

¶60

In the result, the appeal is allowed. The judgment under challenge is reversed. The accused is found guilty for the

¶61

CRL.A.No.641 OF 2005

¶62

¶63

offence under Section 138 N.I Act and is convicted and sentenced to undergo imprisonment till rising of the court and to pay Rs.1,00,000/-(Rupees one lakh only) as fine. On payment of the fine, the amount as such shall be defrayed to the complainant as compensation. The accused shall surrender before the trial court to serve the sentence and pay the fine amount on 29.07.2020. In default of payment of fine, the accused shall undergo Simple Imprisonment for three months.

¶64

Sd/MARY JOSEPH JUDGE ska

¶65

CRL.A.No.641 OF 2005

¶66

¶67

CRL.A.No.641 OF 2005

¶68

Sathya Bhama v. P.Venu

Case brief

What is this about?

What did the court decide?

Sathya Bhama v. P.Venu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

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

Prasanna, D/O. Sarasamma, Vs R.Mohandas, S/O. Rose

Kerala Financial Corporation Vs Mas Hotel

Omana Vs State of Kerala

State of Kerala Vs Elias, S/O.Poulose

Tomy Mathew, Vs K.M.Joseph