Dismissed

Sunil Kumar.N v. R.Ramachandran

Kerala HC12 Jul 2023CRL.A/1420/2009

Case brief

AI extract

What is this about?

In a criminal appeal against acquittal, the High Court of Kerala held that the complainant failed to prove the execution of the cheque under Section 139 of the Negotiable Instruments Act. The court affirmed the acquittal, noting doubts regarding the appellant's claim of handing over money on the alleged date.

What did the court decide?

The judgment of acquittal acquitting the first respondent was affirmed and the criminal appeal dismissed.

Sunil Kumar.N Vs R.Ramachandran — Cheque Dishonour | Kerala HC (2023)

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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 V.G.ARUN

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WEDNESDAY, THE 12^TH DAY OF JULY 2023 / 21ST ASHADHA, 1945

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CRL.A NO. 1420 OF 2009

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AGAINST THE JUDGMENT DATED 03.12.2008 IN CC 975/2005 OF

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JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM

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Crl.L.P. 534/2009 OF HIGH COURT OF KERALA

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APPELLANT/COMPLAINANT:

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SUNIL KUMAR.N, S/O P.NEELAMBARAN, KALLIYIL THEKKATHIL PRAKKULAM.P.O., KOLLAM. BY ADVS. SRI.S.SANTHOSH KUMAR SMT.BABY JOSE

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RESPONDENT/ACCUSED & STATE:

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1 R.RAMACHANDRAN KALEEKKARAVILA VEEDU, KOTTAKKAKOM,, ANCHALMMOODU.P.O., KOLLAM. 2 THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV SRI.D.AJITHKUMAR

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SR.PP.RENJITH GEORGE

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THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 12.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.A.No.1420/2009

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**V.G.ARUN, J **************** Crl.A.No.1420 of 2009

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Dated this the 12^th day of July, 2023

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J U D G M E N T

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The appellant is the complainant in C.C.No.975/2005 of the Judicial First Class Magistrate Court-I, Kollam. The complaint was filed alleging commission of offence under Section 138 of the Negotiable Instruments Act by the first respondent. According to the appellant, the first respondent borrowed a sum of Rs.2,00,000/- on 20.12.2004 from him as a short term loan and promised to repay the amount within two months. The first respondent failed to abide by his promise. Hence, the appellant approached him repeatedly and ultimately the first respondent issued a cheque for Rs.2,00,000/-. The cheque, on presentation, was dishonoured for insufficiency of funds. Despite issuance of notice, the first respondent failed to pay the amount and hence the complaint was filed.

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Crl.A.No.1420/2009

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In order to prove his case, the appellant examined himself as PW1 and marked Exts.P1 to P6 documents. On the defence side, DW1, the appellant's superior officer and DW2, the appellant himself, were examined and Exts.D1 and D2 documents were marked.

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Upon appreciation of evidence, the trial court found that the presumption under Section 139 of the Negotiable Instruments Act is not attracted, as the appellant failed to prove execution of the cheque. The court also found that the first respondent had succeeded in establishing that the cash transaction could not have taken place on the date mentioned in the complaint. Consequently, the first respondent was acquitted under Section 255(1) Cr.P.C. Hence, this appeal.

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Learned Counsel for the appellant vehemently contended that the first respondent having admitted his signature in the cheque, presumption under Section 139 of the Act is attracted. The first respondent, failed to rebut the presumption and hence, the judgment of acquittal is unsustainable. The first respondent did not even send a reply to the statutory demand

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Crl.A.No.1420/2009

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notice issued. It was only during his Section 313 examination that the first respondent raised a contention that the cheque had been entrusted with one Sathyaseelan, uncle of the appellant as security for Rs.50,000/- borrowed from that person in the year 1996. Even after repaying the amount, Sathyaseelan did not return the cheque. It is contended that the defence set up by the first respondent cannot be accepted in the absence of any complaint or legal action with respect to the alleged failure of Sathyaseelan to return the cheque. It is contended that the trial court committed gross mistake by relying on the evidence of DW1 and holding that the appellant could not have travelled to Kollam on 20.12.2004, for handing over the money to the first respondent, as he was on Sabarimala duty. According to the Counsel, after every duty, the Police Constables posted at Sabarimala are vested rest for four to sixteen hours. The appellant had gone to his residence at Kollam and handed over money to the first respondent considering their longstanding friendship and the urgent need expressed by the first respondent. It is pointed out that, even as per the evidence of DW1, the

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Crl.A.No.1420/2009

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appellant was on leave from 16.02.2005 to 21.02.2005 and had reported for duty on 22.02.2005 the date on which the cheque was allegedly handed over by the first respondent. Being so, the version of the appellant that the cheque was handed over on 22.02.2005 ought to have been accepted.

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Learned Counsel for the first respondent submitted that the well considered judgment of the trial court, rendered after considering all relevant aspects, warrants no interference. It is submitted that the presumption under Section 139 of the Act is not attracted in the case at hand, the appellant having failed to prove the execution of the cheque. It is contended that, merely because the signature of the first respondent is found on the cheque, that cannot lead to the assumption that the cheque was duly executed, particularly when the entries in the cheque are in a different handwriting. According to the Counsel, there was no acquaintance between the first respondent and the appellant and the cheque in question was handed over to the appellant's uncle and misused later. Attention is drawn to the deposition of DW1, the Sub Inspector of Police, A.R Camp, Malappuram to point out

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Crl.A.No.1420/2009

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that a Constable on duty at Sabarimala could not have made a trip to Kollam between his duty hours for handing over money to a friend.

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As contended by the learned Counsel for the appellant, it is trite that when signature on his cheque is admitted, the question whether some other person had made the other entries become immaterial. Even if some other person is found to have filled up the cheque, that will not affect the validity of the cheque. Here, the question is slightly different since the specific contention of the first respondent is that the cheque was never handed over to the appellant, but was misused after obtaining it from his uncle to whom it was given long back. Although the said defence, by itself, is not sufficient to upset the complainant's case, the evidence of DW1 assumes relevance in this context. The evidence clearly is to the effect that from the A.R Camp, Malappuram the appellant was sent on Sabarimala duty from 11.12.2004 to 28.12.2004. The Inspector deposed that the appellant was on leave from 16.02.2005 and had reported back for duty at the Malappuram Camp on 22.02.2005. In his deposition DW1 also

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Crl.A.No.1420/2009

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stated that Constables on duty at Sabarimala are allowed to rest for four to sixteen hours after every shift. Even if so, there cannot be an assumption that, between his duty hours the appellant had travelled to his residence at Kollam for the purpose of advancing Rs.2,00,000/- to the first respondent, that too, by pledging his wife's gold ornaments. Likewise, the appellant's version that he had reported back at Malappuram camp on 22.02.2005, after receiving the cheque from the first respondent is also doubtful. Moreover, the instant being an appeal against acquittal, even a possible different view is no reason to interfere with the impugned judgment.

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For the aforementioned reasons, the judgment of acquittal is affirmed and the appeal, dismissed.

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(sd/-) V.G.ARUN, JUDGE

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jsr/14/7/2023

Sunil Kumar.N v. R.Ramachandran

Case brief

What is this about?

What did the court decide?

Sunil Kumar.N v. R.Ramachandran

Case brief

What is this about?

What did the court decide?

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