Dismissed

Mohan Das v. State of Kerala

Kerala HC2 Aug 2021CRL.A/1106/2006

Case brief

AI extract

What is this about?

Crl.A No.1106 of 2006 against judgment in CC 104/2005 regarding cheque dishonour under Section 138 NI Act. High Court of Kerala upheld acquittal of the accused, finding the trial court correctly rejected the complainant's presumption due to failure to explain source of funds and purpose, while defence witness corroboration was deemed sufficient.

What did the court decide?

Judgment of acquittal against the accused is affirmed; appeal is dismissed.

Mohan Das Vs State of Kerala — Cheque Dishonour | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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MONDAY, THE 2^ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943

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CRL.A NO. 1106 OF 2006

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AGAINST THE JUDGMENT IN CC 104/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, HARIPAD, ALAPPUZHA

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APPELLANT/COMPLAINANT:

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MOHAN DAS, AGED 38 YEARS, S/o RAGHAVAN, PUTHUVEETTIL, THOTTATHUM MURI, PATHIYUR VILLAGE.

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BY ADV SRI.R.REJI

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RESPONDENT/STATE AND ACCUSED:

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

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2 VIVEKANANDAN, AGED 45 YEARS S/o VELAYUDHAN, PATTATHIL VEEDU, CHIRAKKADAVAM MURI, KAYAMKULAM.

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BY SR. PUBLIC PROSECUTOR SMT. S.SEETHA SRI.BASANT BALAJI

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Appeal No.1106 of 2006

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JUDGMENT

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The judgment of acquittal under Section 255(1) Cr.P.C. against the alleged offence under Section 138 of the Negotiable Instruments Act brought under challenge by the complainant mainly on the reason that there is failure on the part of the trial court to appreciate the evidence on either part. It is a case wherein the signature found affixed in the cheque was admitted by the accused, but advanced a case that a signed blank cheque was entrusted with DW2, Sivanandan, by way of security and denied and disputed the due execution and issuance of the cheque to the complainant. In the box, DW2 turned hostile, though he was summoned and examined at the instance of accused. No direct evidence was given by the accused in support of his contention that the cheque was given to DW2 and not to the complainant. DW3 was examined as a witness to the entrustment of cheque to DW2. During the cross-examination of complainant, he had failed to give any plausible or

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Crl.Appeal No.1106 of 2006 3

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acceptable explanation regarding the source of huge amount of Rs.1,00,000/- and also the purpose for which he had

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advanced such a huge amount to the accused. Hence it was found by the trial court that the presumption available under Section 118 and 139 of N.I.Act would stand rebutted.

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It was also found that the case advanced by the accused is more probable than what is advanced by the complainant regarding its due execution. The failure to explain the source of huge amount of Rs.1,00,000/- and the purpose for which such a huge amount was advanced to the accused would certainly probabilize the defence set up by the accused regarding the entrustment of a signed blank cheque with DW2. The accused took pain to examine him as a witness, though he turned hostile. DW3 was also examined, who deposed in tune with the defence set up by the accused stating that he had witnessed the entrustment of two blank cheques and a blank stamp paper to DW2 Sivanandan. It is true that the oral evidence tendered by DW2 or DW3 as such cannot be accepted, unless there is corroboration by other evidence, for which, the failure to explain the source of amount and purpose for which such an amount was advanced

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Crl.Appeal No.1106 of 2006 4

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and the improbability writ large on its face would give sufficient corroboration to what is spoken by DW3. No independent witnesses were examined by the complainant PW1 to prove the due execution of the cheque and his interested testimony alone cannot be substituted in the place of proof regarding due execution. Hence, the finding of the learned Magistrate that the accused is not guilty for the said offence and the judgment of acquittal deserve no interference. Appeal is dismissed.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Mohan Das v. State of Kerala

Case brief

What is this about?

What did the court decide?

Mohan Das v. State of Kerala

Case brief

What is this about?

What did the court decide?

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