Allowed

Antony Stephen Fernando v. State of Kerala

Kerala HC8 Apr 2021CRL.A/1279/2006

Case brief

AI extract

What is this about?

In this appeal against acquittal for cheque dishonour under Section 138 NI Act, the High Court held that the appellant received intimation of dishonour on 7.7.2004. The Court found the statutory notice issued within the limit and reversed the acquittal, convicting the accused and sentencing him to a fine and simple imprisonment.

What did the court decide?

Accused found guilty and sentenced to fine of Rs.1,40,000 and 6 months simple imprisonment; 4 months stay for fine deposit granted.

Antony Stephen Fernando Vs State of Kerala — Cheque Dishonour | Kerala HC (2021)

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Crl.A.No.1279/2006

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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 T.R.RAVI

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THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

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CRL.A.No.1279 OF 2006

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AGAINST THE JUDGMENT IN ST 997/2004 DATED 14-02-2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS, DEVIKULAM

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Crl.L.P. 289/2006 DATED 26-06-2006 OF HIGH COURT OF KERALA

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APPELLANT/COMPLAINANT:

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ANTONY STEPHEN FERNANDO

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S/O.STEPHEN, CARMAN COMMUNICATION, CARMEL CENTER, G.O.ROAD, MUNNAR P.O., KDH VILLAGE.

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BY ADV. SRI.LATHEESH SEBASTION

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RESPONDENT/STATE & ACCUSED:

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1 STATE OF KERALA

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REP. BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM.

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2 MATHEW GEORGE, UNITED BUSINESS CENTER, 3RD FLOOR, IST BLOCK, ADAMSTAR COMPLEX,, THODUPUZHA, IDUKKI DT.

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R1 BY PUBLIC PROSECUTOR SMT. S.L. SYLAJA R2 BY ADV. SRI.JOY C. PAUL R2 BY ADV. SRI.BOBBY GEORGE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-03-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:

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Crl.A.No.1279/2006

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JUDGMENT

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Dated this the 8^th day of April 2021

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The complainant in S.T.No.997/2004 on the file of the Judicial

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First Class Magistrate, Devikulam has filed this appeal being aggrieved by the judgment dated 14.02.2006, whereby the accused/1^st respondent was acquitted of an offence under Section 138 of the Negotiable Instruments Act.

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Heard Sri.Latheesh Sebastion, learned counsel on behalf of the appellant and Sri.Bobby George, learned counsel on behalf of the 1^st respondent.

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According to the appellant, the 1^st respondent had borrowed 70,000/- from him on 15.5.2004 and when repayment₹ was demanded, a cheque dated 15.6.2004 drawn on the Catholic Syrian Bank Ltd., Thodupuzha branch, had been issued, which when sent for collection returned dishonoured for the reason of insufficiency of funds in the account of the 1^st respondent . When no payment was made even after the appellant had issued the statutory notice, the complaint is said to have been filed. Before the trial court, the complainant examined himself as PW1 and the Manager of the Bank as PW2. Exts.P1 to P7 series were marked. The accused did not adduce any evidence. A contention was taken

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Crl.A.No.1279/2006

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on behalf of the accused that the complainant had not issued notice as contemplated by the Negotiable Instruments Act. The trial court found that the cheque was issued for discharge of a liability and that the same had been dishonoured for insufficiency of funds in the account of the accused. However, on the question of notice, the court found that it was not issued within 30 days of receipt of intimation from the Bank regarding dishonour. The 1^st respondent was hence acquitted, which is challenged in this appeal.

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The learned counsel for the appellant contended that the finding of the court below is against the documentary evidence produced before the Court, which has been supported by the testimony of the Bank manager. The court below had placed undue reliance on Ext.P6 "Returned Cheque Remittance Memo" to hold that the intimation was given to the appellant regarding the dishonour on 5.7.2004 and on that basis concluded that since the notice is issued on 5.8.2004, the notice cannot be said to have been issued within 30 days. The counsel for the appellant referred to Ext.P7, P7(a) and P7(b) and contended that it is evident from the records of the Bank that the complainant received intimation only on 7.7.2004

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and that the notice was within time. It can be seen from the judgment of the court below that even though the Court had

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Crl.A.No.1279/2006

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considered Ext.P7(b), the court was of the opinion that the said document will only go to show that the cheque was returned on 7.7.2004 and not that the intimation was given on that day. The Court instead relied on Ext.P6, which is dated 5.7.2004, wherein there is an endorsement "By hand", and held that the intimation had been given on 5.7.2004 and the cheque was returned on 7.7.2004. In the process, the court below has not even considered the effect of the oral evidence tendered by the Manager of the Bank.

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I have gone through the entire documentary evidence and the depositions of the witnesses. I find considerable force in the contention raised by the learned counsel for the appellent. Ext.P6 which is the "returned cheque remittance memo" has no doubt been prepared on 5.7.2004 as the date written on it indicates. The endorsement "By Hand" only indicates the manner in which the information is passed on to the payee. The Manager has specifically stated that merely because Ext.P6 is prepared on 5.7.2004, it does not mean that the same was handed over on the same day. The document that shows the factum of return of the cheque and intimation of dishonour is actually Ext.P7, and Ext.P7(b) which is the photocopy of page 34 of the said register, clearly shows that the cheque and the intimation had been collected by the appellant only

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Crl.A.No.1279/2006

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on 7.7.2004. On a perusal of the above documents, I find that what is stated by the Manager is the correct state of affairs. Ext.P6 does not contain any indication that the appellant had received the same on 5.7.2004 and there is no endorsement to that effect. The finding of the court below that Ext.P7(a) cannot override Ext.P6 is without any legal basis. Both the documents are documents kept by the Bank in its course of business and are complementary in nature. The accused has no case that the content of Ext.P7 is wrong or that

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it has been created by the bank to support the case of the appellant. In the light of Ext.P7, P7(a) and P7(b), and the evidence of PW2, Manager of the Bank, I am of the opinion that the appellant received intimation regarding dishonour of the cheque only on 7.7.2004 and the notice which has been issued on 5.8.2004, is well within the time prescribed by the statute.

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In such circumstances, the appellant is entitled to succeed in this appeal. The judgment dated 14.2.2006 in ST.Case No.997 of 2004 on the file of the Judicial First Class Magistrate, is set aside. The 1^st respondent is found guilty of offence under Section 138 of the Negotiable Instruments Act. Since the cheque in question

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was issued almost 17 years ago, the accused is sentenced to pay a fine of Rs.1,40,000/- being twice the amount of the cheque in

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Crl.A.No.1279/2006

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question. Out of the amount of fine, the appellant shall be paid a sum of Rs.1,35,000/- as compensation under Section 357(1) of the Code of Criminal Procedure. In default of payment of fine, the accused shall undergo simple imprisonment for a period of 6 months. In view of the pandemic, the accused is granted a period of 4 months from today to deposit the amount of fine, failing which the Magistrate shall take necessary steps to execute the sentence.

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The Registry shall forward the entire records of the case to the Judicial First Class Magistrate, Devikulam forthwith.

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Sd/-

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T.R.RAVI, JUDGE

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dsn

Antony Stephen Fernando v. State of Kerala

Case brief

What is this about?

What did the court decide?

Antony Stephen Fernando v. State of Kerala

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

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