Appeal against acquittal in cheque bounce case dismissed. Court held that appellant failed to prove cheque was issued for legal liability as cheque was obtained as security for a third party, rebutting presumption under S. 139 NI Act.
Criminal Appeal NO. 441 of 2007 dismissed finding no reason to hold the lower court assumption to be perverse.
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 P.G. AJITHKUMAR
FRIDAY, THE 12TH DAY OF JANUARY 2024 / 22ND POUSHA, 1945
CRL.APPEAL NO. 441 OF 2007
AGAINST THE JUDGMENT DATED 11.07.2006 IN CC 937/2004 OF
THE JUDICIAL MAGISTRATE OF FIRST CLASS -II (MOBILE),
KOTTAYAM
APPELLANT/COMPLAINANT:
SAJU JOSEPH
ILLIPARAMBIL HOUSE, PERUMTHURUTHU PO,, KALLARA, KOTTAYAM DISTRICT.
BY ADV SRI.A.K.HARIDAS
RESPONDENTS/ACCUSED & STATE:
1 V.K.PADMANABHAN P.B.NO.7538, SR.ASSISTANT, FACT (CP), AMBALAMEDU, ERNAKULAM.
2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY L.P.ARAVINDAKSHAN R1 BY B.RAMACHANDRAN R2 BY SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 08.01.2024, THE COURT ON 12.01.2024 DELIVERED THE FOLLOWING:
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P.G. AJITHKUMAR, J.
----------------------------------------------------------Crl.Appeal No.441 of 2007
----------------------------------------------------------Dated this the 12th day of January, 2024
JUDGMENT
Judgment dated 11.07.2006 of the Judicial Magistrate of the First Class-II, Kottayam in C.C.No.937 of 2004 acquitting the 1st respondent is under challenge in this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code).
Act, 1881 (N.I.Act) by the 1st respondent. The allegations were that the 1st respondent, during the course of money transactions with the appellant, had issued a cheque dated 17.01.2003 in order to make payment of an amount of Rs.50,000/-, and the cheque when presented for encashment was returned unpaid for the reason “payment stopped by the bank”. Real reason for the dishonourment of the cheque was lack of sufficient funds in the account of the 1st respondent. A
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notice demanding payment of the amount due under the cheque was issued. The 1st respondent on receipt of the notice, instead of making payment, sent a reply stating false facts.
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Point Nos.(i) and (ii)
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(See: Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197], Basalingappa v. Mudibasappa [(2019) 5 SCC 418] and M/s Kalamani Tex and another v. P.Balasubramanian [(2021) 5 SCC 283] )
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cheque. It is his further version that at the time of issuing Ext.P1, the 1st respondent received back a promissory note and another cheque issued earlier. The said version of PW1 is totally in deviation from the averments in the complaint. In
the light of the said contradictory stand taken by the appellant, the evidence tendered by the 1st respondent assumes importance.
the appellant and in fact the cheque was lost from his possession.
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the N.I.Act is available in favour of the holder of the cheque. But in this case, the evidence tendered by PW1 is insufficient to find that Ext.P1 was issued by the 1st respondent to the appellant with an authority to make it complete and use as a negotiable instrument.
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evidence in the light of the oral testimony of DW1 and Exts.D1 and D2 established that Ext.P1 is not supported by any consideration. Thereby, the presumption available in respect of Ext.P1 under Section 139 of the N.I. Act stands rebutted. The court below arrived at such a conclusion after referring to the evidence in detail. I find no reason to hold that the said finding is perverse or even incorrect. Therefore, this appeal fails and it is accordingly dismissed.
Sd/- P.G. AJITHKUMAR, JUDGE
dkr
3 issues framed by the court
Whether the disputed cheque was issued by the respondent in discharge of a debt or legally enforceable liability?
Whether the respondent committed an offence under Section 138 of the Negotiable Instruments Act, 1881?
Whether the presumption under Section 139 of the Negotiable Instruments Act was rebutted by the evidence?
Colour shows how this judgement treated each authority
Bir Singh v. Mukesh KumarReferred¶41
Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197] · Who else cites this
Basalingappa v. MudibasappaReferred¶41
Basalingappa v. Mudibasappa [(2019) 5 SCC 418] · Who else cites this
M/s Kalamani Tex and another v. P.BalasubramanianReferred¶41
M/s Kalamani Tex and another v. P.Balasubramanian [(2021) 5 SCC 283] · Who else cites this
3 provisions across 2 enactments
Saju Joseph
V.K. Padmanabhan
State of Kerala
P.G. Ajithkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.G. Ajithkumar
Parties & counsel
