Allowed

M.a.Paily v. a.K.Narayanan

Kerala HC15 Jul 2024CRL.A/1527/2006

Case brief

AI extract

What is this about?

In a criminal appeal by the complainant against the acquittal of the accused in a cheque dishonour case, the High Court held that the trial court's finding of guilt was properly reached. The Court set aside the first appellate judgment acquitting the accused and restored the trial court's conviction and sentence.

What did the court decide?

First appeal judgment set aside; trial court judgment restoring; conviction and sentence to accused remain in force.

M.a.Paily Vs a.K.Narayanan — Cheque Dishonour | Kerala HC (2024)

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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 C.S. SUDHA

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MONDAY, THE 15^TH DAY OF JULY 2024 / 24TH ASHADHA, 1946

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CRL.A NO. 1527 OF 2006

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AGAINST THE JUDGMENT DATED 30.11.2005 IN CRA NO.1025 OF 2004 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM ARISING OUT OF THE JUDGMENT DATED 8/10/2004 IN C.C.No.352 of 2001 OF JUDICIAL FIRST CLASS

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MAGISTRATE COURT, KOLANCHERY

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APPELLANT/COMPLAINANT:

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M.A.PAILY MURIMATTATHIL HOUSE, KADAYIRUPPU, KOLENCHERRY, ERNAKULAM DISTRICT.

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BY ADV SRI.M.K.DILEEPAN

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RESPONDENTS/ACCUSED:

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1 A.K.NARAYANAN AKKANAMKUNNUPARAMBIL HOUSE, KADAYIRUPPU, KOLENCHERRY, ERNAKULAM DISTRICT.

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

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BY ADV SRI.PAUL K.VARGHESE ADV.SRI.VIPIN NARAYAN, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 10.7.2024 AND THE COURT ON 15.07.2024 DELIVERED THE FOLLOWING:

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Crl.Appeal No.1527 of 2006

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C.S.SUDHA, J.

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Crl.Appeal No.1527 of 2006

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Dated this the 15 th day of July 2024

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J U D G M E N T

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This appeal under Section 378 Cr.P.C. by the sole appellant in Crl.Appeal No.1025/2004 on the file of the Court of District and Session, Ernakulam has been filed challenging the conviction entered and sentence passed against him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the NI Act).

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2 . In the complaint filed under Section 142 of the N.I. Act,

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the case of the complainant was that the accused, his neighbour and

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friend, had borrowed an amount of ₹35,000/- and in discharge of the debt, issued Ext.P1 cheque dated 02/03/2001 drawn on Aikkarand Service Co-operative Bank Ltd., Kadayiruppu. The complainant was made to believe that there was sufficient funds in

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Crl.Appeal No.1527 of 2006

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the account of the accused. However, the cheque when presented

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on 03/03/2001 for encashment was dishonored due to insufficient

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funds in the account of the accused. Therefore the complainant caused to issue a lawyer notice dated 08/03/2001 informing the accused of the dishonor and calling upon him to pay the cheque amount. Though the accused received the notice on 10/03/2001, he has not repaid the amount so far. Hence the complaint alleging the offence punishable under Section 138 of the N.I. Act.

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The accused on appearance before the trial court was supplied with copies of all the relevant records relied on by the complainant. The particulars of the offence was read over and explained to the accused to which he pleaded not guilty. PW1 and PW2 were examined and Exts.P1 to P8 were marked on the side of the complainant. The accused was duly questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing in evidenc e against him. The accused took up a stand of total denial. According to him, he had no transaction whatsoever

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Crl.Appeal No.1527 of 2006

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with the complainant; that he does not have an account with

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Aikkaranad Service Co-operative Bank; that Ext.P1 cheque was not a cheque drawn from his account and he also denied the signature in the cheque. The accused offered himself as a witness and hence he was examined as DW1. Ext.D1 series are the extract of the school admission register of the acc used and copy of the ration card of the accused.

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The trial court on a consideration of the oral and documentary evidence and after hearing both sides, found that the complainant had been successful in establishing the offence under Section 138 of the NI Act and hence convicted and sentenced the accused to simple imprisonment for a period of three months. The accused was also ordered to pay a compensation of ₹35,000/under Section 357(3) Cr.P.C. to the complainant and in default of payment of compensation to undergo simple imprisonment for a period of three months. Aggrieved by the judgment of the trial court, the accused fi led Crl.A.No.1025/2004 before the Court of

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Crl.Appeal No.1527 of 2006

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Session, Ernakulam. The sessions court as per judgment dated 30/11/2005 allowed the appeal and set aside the conviction and sentence passed by the trial court and acquitted the accused under Section 255(1) Cr.P.C. Aggrieved, the complainant has come up in appeal.

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When the matter came up for hearing, there was no representation for the appellant. Hence by order dated 28/05/2024,

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this Court appointed ad vocate Sreedev U. as amicus curiae to represent the appellant. Thereafter, when the matter was taken up for final hearing on 10/0 7/2024, it was submitted by the learned counsel appearing for the respondent/accused that she has no instructions in the matter. Hence, the amicus curiae appointed for the complainant was heard. I have carefully examined the records in the case, the deposition of the witnesses as well as the judgment of both the courts and hence I proceed to dispose of the case on merits.

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The accused took up a stand of complete denial of the

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Crl.Appeal No.1527 of 2006

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transaction referred to in the complaint. The complainant when examined as PW1 stood by his case in the complaint. PW2, the Secretary, Aikkaranad Service Co-operative Bank, testified that Ext.P1 cheque had in fact been issued from the SB account bearing no.938 with the Aikkaranad Service Co-operative Bank. According to PW2, Ext.P6 is the specimen signature of the account holder given at the time of opening of the account. Ext.P7 is the ledger extract of account no.938 and Ext.P8, the membership identity card containing the signature of member no.1750 of Aikkaranad Service Co-operative Bank, the holder of the account from which Ext.P1 was drawn. PW2 further deposed that the person seen in the photograph in Ext.P8 identity card is the accused and that he personally knows the accused for the past more than 25 years. Nothing was brought out to discredit the testimony of either PW1 or PW2. The testimony of PW2 that he is acquainted with the accused for the last more than 25 years has also not been discredited. The accused advanced an argument that he is not the

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Crl.Appeal No.1527 of 2006

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person seen in Ext.P8 identity card. His case is not that of an identical twin. He contended that the person in Ext.P8 photo resembles one of his distant relative. PW2's testimony disproves this claim of the accused. I do not find any reason(s) to disbelieve the testimony of PW2. In the light of the testimony of PW1 and PW2 which proved the issuance of Ext.P1 cheque and its subsequent dishonour, the onus shifted to the accused to disprove the presumption contained under Secti on 118 of the NI Act. If the case of the accused was true and that the person seen in Ext.P8 photograph was actually his distant relative, he could have examined the so called identical relative to disprove the case of the complainant. However, the said cour se of action has also not been done. The appellate court went wrong in casting the burden on the complainant to examine the so called relative is supposed to be identical to the accused.

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It is true that the accused denied the signature in Ext.P1 cheque. However, it is to be noticed that the accused even denied

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his signature in the vakalath. On an entire appreciation of the oral

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and documentary evidence, it is clear that the trial court was right in finding that the complainant had established his case. The first appellate court obviously erred in interfering with the reasoned judgment of the trial court. Hence the appeal is allowed. The impugned judgment is set aside. The judgment of the trial court in C.C.No.352/2001 dated 08/10/2004 shall stand restored.

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Interlocutory applications, if any pending, shall stand closed.

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Sd/-

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C.S.SUDHA JUDGE

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ami/

M.a.Paily v. a.K.Narayanan

Case brief

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M.a.Paily v. a.K.Narayanan

Case brief

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What did the court decide?

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