Muthoot Vehicle And Asset Finance ... vs K. Jayaprakash
2021 Latest Caselaw 7382 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

           THE HONOURABLE MR. JUSTICE K.HARIPAL

WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                   CRL.A.No.554 OF 2011

AGAINST THE JUDGMENT IN CRA 158/2010 OF ADDITIONAL SESSIONS
              COURT, FAST TRACK-II ,PALAKKAD

Crl.L.P. 166/2011 DATED 23-02-2011 OF HIGH COURT OF KERALA


APPELLANT/COMPLAINANT:

           MUTHOOT VEHICLE AND ASSET FINANCE LIMITED,
           NOW RENAMED AS MUTHOOT VEHICLE AND ASSETS
           FINANCE LTD,KURIAN TOWERS,OPP;SARITHA
           THEATRE,BANERJI ROAD, ERNAKULAM,REP.BY ITS
           P/A.HOLDER BABY SUJATHA,,
           W/O.JAISURAJ,SAISURAJ,CUSTOMS COLONY,POONITHURA
           P.O., THRIPUNITHURA.

           BY ADV. SRI.C.S.MANILAL

RESPONDENTS/ACCUSED AND STATE:

     1     K. JAYAPRAKASH, S/O. RAMANKUTTY,
           MALAYIL KAYARAT,CHUNANGAD,OTTAPALAM TALUK,,
           PIN-679511.

     2     THE STATE OF KERALA, REPRESENTED BY THE
           PUBLIC PROSECUTOR,HIGH COURT OF KERALA,,
           ERNAKULAM-31.


           SRI. M.S. BREEZE, SR.PP

    THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-
03-2021, THE COURT ON 03-03-2021 DELIVERED THE FOLLOWING:
 Crl.A.554/2011                       2




                            JUDGMENT

This is an appeal preferred under Section 378(4) of the Code of

Criminal Procedure, hereinafter referred to as the Cr.P.C., challenging the

correctness of the judgment of the learned Additional Sessions Judge, Fast

Track-II, Palakkad in Crl.A.No.158/2010.

2. The proceedings had originated on a complaint preferred by the

appellant before the Judicial First Class Magistrate-III, Palakkad against

the 1st respondent alleging offence punishable under Section 138 of the

Negotiable Instruments Act. The appellant is a leasing and financing

company giving out loans, among other things, for purchase of vehicles. In

the complaint preferred before the trial court, it is alleged that the 1 st

respondent had availed a loan for Rs.2,49,000/- for purchasing a vehicle,

agreeing to repay the amount in 60 instalments, at the rate of Rs.5,976/-

per month. In order to ensure monthly repayment, he had executed and

issued post-dated cheques, authorising the appellant to present the same

one by one, every month. But he defaulted repayment and the cheques were

dishonoured due to insufficiency of funds. After further negotiation, the

1st respondent allegedly issued the subject cheque, bearing No.060454 for

Rs.2,83,104/- drawn on Ottapalam branch of the Bank of India. When the

cheque was presented for encashment, it returned due to insufficiency of

funds. Thereafter, the appellant caused to issue a lawyer notice on

29.09.2008 intimating the dishonour of cheque and demanding the amount

within 15 days from the date of receipt of the notice. Even after the

service of notice the amount was not paid, which prompted him to prefer

the complaint. The respondent appeared on summons and pleaded not

guilty. Thereafter, one witness was examined as PW1 and Exts.P1 to P7

were marked for the complainant. When the accused was examined under

Section 313 Cr.P.C. through the counsel, the incriminating materials were

denied. There was no evidence in defence. After hearing counsel on both

sides, the trial court found the respondent guilty of offence under Section

138 of the Negotiable Instruments Act, convicted and sentenced to

undergo simple imprisonment for six months and to pay a fine of

Rs.2,85,000/-, in default to undergo simple imprisonment for four months.

On realisation of the fine amount, it was ordered to be given to the

complainant as compensation under Section 357(1) of the Cr.P.C.

3. The aforesaid finding was taken in appeal before the Sessions

Court, Palakkad. The learned Additional Sessions Judge, after hearing the

counsel on both sides, found that 'the execution and issuance of the cheque

by the accused stand proved by the evidence adduced by the complainant'.

However, it is found that, in the absence of reliable evidence as to the

effect that the cheque was dishonoured due to insufficiency of funds in the

account of the accused, the complainant failed to prove an offence under

Section 138 of the Negotiable Instruments Act. On that premise the

conviction and sentence were interfered with and the appeal was allowed.

Against that finding, the appellant moved a Criminal Leave Petition to this

Court and after obtaining leave the appeal was taken on file. Though

notice was served on the accused, he has not appeared nor a lawyer has

been engaged.

4. I heard the learned counsel for the appellant and also the

learned Public Prosecutor for the 2nd respondent State.

5. During the course of argument the learned counsel for the

appellant brought to my notice the original cheque dishonour memo dated

10.09.2008 issued by the Manager, Bank of India, Ottapalam branch,

returning cheque No.60454 for an amount of Rs.2,83,104/-. The learned

counsel urged that even though the reason for return of the cheque was not

discernible from Ext.P2, from Ext.P3 lawyer notice it was made clear that

the cheque was returned dishonoured due to insufficiency of funds. But

that aspect has not been noticed by the appellate court. Still the counsel

urged that the original cheque return memo, now produced before the

court, clearly reveals the reason for bouncing the cheque. According to

him, if a further opportunity is afforded to the appellant, he can very well

examine the Manager of the Bank of India, who had issued the cheque

return memo. The counsel also pointed out that in the event of remand,

the matter is likely to be settled.

6. As noticed from the sequences of events, the trial court had

convicted the 1st respondent believing the version of the witness examined

on the side of the appellant. Exts.P1 to P7 documents were also

considered. It seems that the cheque was sent for collection through the

Federal Bank Ltd. and Ext.P2 is only a covering letter of the cheque return

memo where reason for dishonour is not shown. From the above, it is clear

that the cheque must have been presented through the Federal Bank. In

fact, the cheque return memo issued by the Bank of India from where the

cheque was issued, was not produced before the court. According to the

learned counsel for the appellant, that was a mistake on his part. Of

course, from Ext.P3 lawyer notice, it is quite evident that the reason for

the return of the cheque has clearly been intimated to the alleged drawer,

the 1st respondent. Still, when such an aspect was highlighted before the

appellate court, the court took serious note of it and interfered with the

conviction and the sentence imposed on the 1st respondent.

7. Having regard to the contentions urged before this Court by

the learned counsel for the appellant and also taking into account the

quantum of amount involved, it seems that it is only in the interest of

justice that the appellant be afforded one more opportunity to adduce

evidence by producing and marking the cheque return memo in question

through a competent witness. In this connection, I also take note of the

fact that both the courts below have noticed the execution and issuance of

the cheque by the 1st respondent. In the circumstance, due to an

inadvertent omission on the part of the appellant, interest of justice cannot

be stultified.

8. In the circumstances, the findings of the court below are set

aside and the matter is remanded to the trial court for fresh disposal, after

affording opportunity to the parties to adduce fresh evidence, in

continuation of the evidence already adduced. The appellant will appear

before the trial court on 25.03.2021. The court shall proceed to take

further evidence, after giving notice to the 1st respondent/accused. In case

he wants to adduce any evidence in defence, that also can be allowed.

The appeal is allowed as above. The trial records shall be transmitted

forthwith along with the cheque return memo produced before this Court

with Crl.M.A. No.1/2021.

Sd/-

K. HARIPAL JUDGE okb/02.03.21 //True copy// P.S. to Judge