Dismissed

Shiju V.A v. State of Kerala

Kerala HC18 Dec 2023CRL.A/458/2017

Case brief

AI extract

What is this about?

The High Court of Kerala, in a criminal appeal under Section 255(1) Cr.P.C., rejected the prosecution's appeal against an acquittal. The court held that the appellant failed to establish that consideration passed while he received the cheque via a Power of Attorney, thus disqualifying him as a holder in due course.

What did the court decide?

Criminal Appeal No. 458 of 2017 was allowed to fail and dismissed; the impugned acquittal is confirmed.

Shiju V.A Vs State of Kerala — 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 MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 18TH DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945

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CRL.A NO. 458 OF 2017

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AGAINST THE JUDGMENT DATED 13.03.2017 IN ST NO.170 OF 2015
OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, THODUPUZHA
APPELLANT/PETITIONER:

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SHIJU V.A
S/O.APPUKUTTAN NAIR, VELIYATHU
HOUSE,KANJIRAMATTOM, THODUPUZHA EAST P.O.,
IDUKKI DISTRICT.

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BY ADVS.SRI.G.HARIHARAN
 SRI.PRAVEEN.H.

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RESPONDENTS/STATE & RESPONDENT:

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1 STATE OF KERALA

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REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.682 031.

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2 RATHIDEVI

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W/O.SUNIL, PANTHAKAL HOUSE,KANJIKUZHY KARA,
KUMARAMANGALAM.P.O.,NOW RESIDING AT MULAMPUZHA
HOUSE,NEAR KUMARAMANGALAM SERVICE CO-OPERATIVE
BANK, KUMARAMANGALAM.685 597.

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BY ADV.SRI.M.V.RAJENDRAN NAIR

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OTHER PRESENT:

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GP. SMT. MAYA M N

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21.10.2022, THE COURT ON 18.12.2023, DELIVERED THE
FOLLOWING:

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Crl.A. No. 458 of 2017

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MARY JOSEPH, J.

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- - - - Crl.A. No. 458 of 2017

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Dated this the 18^th day of December, 2023

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JUDGMENT

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This appeal is directed against judgment passed by Judicial First Class Magistrate-II, Thodupuzha (for short ‘the trial court’) on 13.03.2017 in S.T No.170/2015.

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The parties to this appeal will hereinafter be referred to as the complainant and the accused in accordance with their status in S.T No.170/2015.

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S.T No.170/2015 is a prosecution launched by the complainant before the trial court alleging that the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘N.I. Act’). The accused pleaded not guilty, when the accusations are read over to her and faced trial. The trial court found her not guilty for the offence punishable under Section 138 N.I. Act and acquitted her

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Crl.A. No. 458 of 2017

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under Section 255(1) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C’).

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Aggrieved by the judgment of acquittal, the complainant has approached this Court in the appeal on hand. The averments in the complaint needs a brief narration hereunder:-

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The complainant’s father and the accused were friends. Accused borrowed a sum of 10,00,000/- from the father of the complainant promising him to repay it within four months. The accused did not repay the amount as promised. The father of the complainant and the accused then entered into an agreement to repay the amount due by installments. A power of attorney was executed by the father of the complainant. After execution of an agreement in favour of the complainant authorising him to receive the amount from the accused and after duly complying with all legal formalities with respect to the transaction, a cheque bearing No.08512 dated 25.02.2015 for a sum of 4,00,000/drawn from Idukki District Co-operative Bank Ltd, Thodupuzha was issued by the accused to the complainant towards the first installment due. Said cheque was presented for collection by the complainant through Urban Co-operative Bank, Thodupuzha

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Crl.A. No. 458 of 2017

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branch. The cheque was dishonoured for ‘insufficiency of funds’. Intimation regarding the dishonour of the cheque was given to the complainant by a memo dated 25.02.2015. A demand notice was sent by the complainant to the accused on 04.03.2015. Despite the receipt of the notice, the accused failed to pay the sum and therefore, the complaint was filed on 04.04.2015.

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The case was originally filed before Chief Judicial Magistrate Court. Accused appeared before that court on process being served on her and she was enlarged on bail. Copies of the relevant records were also furnished to the accused and the case was made over to the trial court. Particulars of the offence were read over and explained to the accused to which she pleaded not guilty.

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The trial was scheduled. The complainant was examined as PW1 and Exts.P1 to P7 were marked. On closure of the evidence of the prosecution, the accused was questioned under Section 313 (1)(b) Cr.P.C with reference to the incriminating circumstances brought out in evidence against her by the complainant. Pleas raised regarding receipt of a sum of `10,00,000/- from the father of the complainant and execution of

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Crl.A. No. 458 of 2017

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an agreement thereafter were denied by her. According to her, cheque was given to the father of the complainant. Admittedly sufficient funds were not there in the account to honour the cheque. Notice of demand was admittedly received. Financial transactions were also admitted as existing among the accused and the father of the complainant and repayment of `50,000/was made. Disputed cheque was given as security in such a transaction but was retained by the father of the complainant, despite the repayment made and a false complaint was filed to launch the prosecution in question.

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Though the accused was asked to enter on her defence, she did not adduce any evidence. As PW1, complainant deposed that his father was bed ridden and informed that he is entitled to realise the amount which the accused had borrowed. According to him, Ext.P1 cheque was given to his father on 25.02.2015. The evidence tendered by the complainant is confined to the deposition of PW1. It was urged by the learned counsel for the accused that the accused did not owe any money to the complainant’s father and therefore the disputed cheque was not supported by any consideration. According to him, the disputed

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Crl.A. No. 458 of 2017

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cheque was issued only as security. It was a signed one but blank as far as it’s entries are concerned. It was given to the father of the complainant at the time of borrowal of `50,000/from him. Admittedly, the complainant was called at the Police Station twice.

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The specific case of the complainant was that the accused had borrowed some money from his father and that amount was bequeathed by his father in his favour. A Power of Attorney was also executed by the father of the complainant in favour of the son to receive the amount from the accused.

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The question to be delved in the context is whether the complainant will come within the purview of “holder in due course” as defined under the N.I. Act. Section 9 of the N.I. Act provides that a person become the possessor of the cheque for consideration, if the cheque is payable to the holder. The term holder is also defined under Section 8 of the N.I. Act. It provides that the holder is a person who is entitled to possess the cheque for any consideration. Under Section 142 N.I. Act, complaint can be filed only by a payee or holder in due course. As already stated, holder will be a person who obtained possession of a

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Crl.A. No. 458 of 2017

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cheque for consideration. For want of consideration while issuing the cheque, the possessor of the cheque or the person who receives the same from him will not be a holder in due course.

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In the case on hand, the specific case of the complainant was that the accused borrowed a sum of `10,00,000/- from his father and executed a power of attorney in his favour to initiate the prosecution under Section 138 N.I. Act. Complaint was filed in that context to launch the prosecution under Section 138 N.I. Act. Consideration behind issuance of the disputed cheque in favour of the complainant is not proved. Absolutely no dispute is there with regard to the issuance of the cheque to the complainant by his father, but the consideration behind its issuance is not established.

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The complainant as PW1 deposed that the accused borrowed a sum of `10,00,000/- from his father promising to repay it within four months. The accused failed to repay the same. According to him, the accused and his father entered into an agreement for repayment of the amount through instalments. According to PW1, his father became bedridden and therefore, he informed that he is entitled to realise the amount which the

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Crl.A. No. 458 of 2017

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accused had borrowed as his father had bequeathed the amount in his favour. According to him, a Power of Attorney was also executed by his father in his favour authorising him to receive the amount from the accused.

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During cross examination, PW1 had gone to the extent that the accused has not borrowed any amount from him, but she owes money to his father and the prosecution has been launched on the strength of the Power of Attorney executed by the father in his favour. It is clear from his version that consideration was not passed from him to his father while handing over the disputed cheque to him and authorising him to launch the prosecution in question. Apart from the power of attorney marked in evidence as Ext.P7, nothing else is forthcoming to establish that consideration passed while the cheque was handed over by the father to the son. Power of Attorney holder cannot be a payee or holder in due course and Power of Attorney executed by the complainant in favour of a person will never confer such a status on the person in whose favour it was executed.

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Crl.A. No. 458 of 2017

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Though it is found from the evidence on record that the essential requirements for a prosecution under Section 138 N.I. Act to make it legal and sustainable are complied with in the case on hand, the complainant failed to prove that valid consideration passed in favour of the son while taking possession of the cheque from his father. In the above circumstances, the judgment under challenge acquitting the accused is only to be confirmed and this Court do so.

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Appeal fails for the reasons and is dismissed.

Sd/-

MARY JOSEPH,

JUDGE

ttb

Shiju V.A v. State of Kerala

Case brief

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Shiju V.A v. State of Kerala

Case brief

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