Criminal appeal by a complainant against acquittal in a cheating and forgery case. The High Court of Kerala allowed the appeal and dismissed it finding no reason to interfere with the below court's decision.
The appeal is dismissed and the acquittal of the respondent is affirmed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942
CRL.A.No.701 OF 2006
AGAINST THE ORDER/JUDGMENT IN CC.NO.246/2001 DATED 15-01-2004 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS -II, KOTTARAKKARA
APPELLANT/COMPLAINANT:
SHAIJU K.MATHEW SABU HOUSE, AYOOR, EDAMAKKAL VILLAGE.
BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL
RESPONDENTS/ACCUSED:
1 SOBHANA RAJAPPAN W/O.RAJAPPAN, MAVELIVEEDU, ANDAMOOZHY MURI, CHITTOOR VILLAGE, PATHANAMTHITTA.
2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.K.N.RADHAKRISHNAN (THIRUVALLA) R2 BY SMT. SYLAJA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CRL.A.No.701 OF 2006
JUDGMENT
Dated this the 3rd day of March 2021
This appeal has been filed by the complainant in CC.No.246/2001
of the Judicial Magistrate of the First Class Court – II, Kottarakkara.
The appellant had filed a complaint under Section 138 of the Negotiable Instruments Act complaining that the 1st respondent had borrowed a sum of Rs.1,50,000/- on 25.06.2000 and a cheque was issued for discharge of the said amount on 25.07.2000. The cheque, produced as Ext.P1, bears the number 207901, and is for a sum of Rs.1,50,000/- drawn on Catholic Syrian Bank, Pathanamthitta branch. The cheque when presented for payment returned dishonored on 29.08.2000 for the reason “insufficient fund” in the account of the accused. Ext.P2 is the cheque dishonor memo. The complainant caused to send a lawyer notice to the accused on 11.09.2000. The accused received the notice and thereafter the complaint is filed.
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Police and the accused had gone to the house of the complainant for arranging the release of the vehicle from the police station. According to her, an account was opened in her name in Catholic Syrian Bank, Pathanamthitta branch at the instance of the complainant and that it was the complainant who advanced a sum of Rs.1,000/- for opening the account. The accused further says that the cheque in question was obtained by the complainant by threat and coercion and that she had already instructed the Bank not to make payment on the cheque. Ext.D6 letter is the said instruction sent by the accused to the Manger of Catholic Syrian Bank, Pathanamthitta. A reading of Ext.D6 letter would show that the accused had opened the account on 06.07.2000 and Ext.D6 letter is issued on 13.07.2000. It is specifically stated in the letter that she was issued with 10 cheque leaves against the account and that cheque leaves bearing No.207901 had been taken from her by the complainant along with other cheque leaves and a sum of Rs,.1,50,000/- had been written up on the said cheque leaf. It is further stated that the accused apprehends that the cheque leaves will be misused by the complainant and hence any payment on the said cheques may be stopped. The specific case of the appellant is that on 20.07.2000 he had demanded from the accused, the amount of Rs.1,50,000/- which is allegedly borrowed by the accused on
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CRL.A.No.701 OF 2006
25.06.2000, and the accused had on that day, issued to him the cheque leaves in question, duly executed, showing the date as 25.07.2000. In the light of Ext.D6 letter which is issued as earlier as on 13.07.2000, it is difficult to appreciate the contention put forward by the appellant. If the appellant's case is to be believed, there was no occasion for the accused to have sent a letter on 13.7.2000, to the Bank, requesting to stop payment. The court below relying on the above facts as well as the evidence of the parties, acquitted the 1st respondent finding her not guilty of offence under Section 138.
the court below particularly in the light of the fact that this is a case where stop payment has been issued much before the date shown on the cheque leaves and specifically stating that the cheque leaves have been handed over to the complainant and there is an apprehension that the same may be misused.
The appeal fails and is dismissed. In the circumstances of the case, there will be no order as to costs.
Sd/-
T.R.RAVI
JUDGE
Sn
3 issues framed by the court
Whether the High Court should interfere with the acquittal of the respondent in Section 138 of the Negotiable Instruments Act given a stop payment letter issued before the cheque date.
Whether the stop payment letter issued by the accused before the date on the cheque prevents conviction under Section 138 of the Negotiable Instruments Act.
Whether there is any reason to interfere with the finding of the court below in a Section 138 case.
2 provisions across 2 enactments
SHAIJU K.MATHEW SABU
SOBHANA RAJAPPAN
STATE OF KERALA
T.R.RAVI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
