Shaiju K.Mathew vs Sobhana Rajappan
2021 Latest Caselaw 7416 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE T.R.RAVI

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

                         CRL.A.No.701 OF 2006

 AGAINST THE ORDER/JUDGMENT IN CC.NO.246/2001 DATED 15-01-2004 OF
    JUDICIAL MAGISTRATE OF THE FIRST CLASS -II, KOTTARAKKARA


APPELLANT/COMPLAINANT:

             SHAIJU K.MATHEW
             SABU HOUSE,
             AYOOR, EDAMAKKAL VILLAGE.

             BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL

RESPONDENTS/ACCUSED:

      1      SOBHANA RAJAPPAN
             W/O.RAJAPPAN,
             MAVELIVEEDU,
             ANDAMOOZHY MURI,
             CHITTOOR VILLAGE,
             PATHANAMTHITTA.

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

             R1 BY ADV. SRI.K.N.RADHAKRISHNAN (THIRUVALLA)
             R2 BY SMT. SYLAJA, PUBLIC PROSECUTOR



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.701 OF 2006

                                   2


                             JUDGMENT

Dated this the 3rd day of March 2021

This appeal has been filed by the complainant in CC.No.246/2001

of the Judicial Magistrate of the First Class Court - II, Kottarakkara.

The appellant had filed a complaint under Section 138 of the

Negotiable Instruments Act complaining that the 1 st respondent had

borrowed a sum of Rs.1,50,000/- on 25.06.2000 and a cheque was

issued for discharge of the said amount on 25.07.2000. The cheque,

produced as Ext.P1, bears the number 207901, and is for a sum of

Rs.1,50,000/- drawn on Catholic Syrian Bank, Pathanamthitta branch.

The cheque when presented for payment returned dishonored on

29.08.2000 for the reason "insufficient fund" in the account of the

accused. Ext.P2 is the cheque dishonor memo. The complainant

caused to send a lawyer notice to the accused on 11.09.2000. The

accused received the notice and thereafter the complaint is filed.

2. The accused took up a contention that she had purchased one

Maheendra Jeep from one Joseph and the registered owner of the

vehicle was Smt.Elcy Mathew, mother-in-law of the complainant. An

agreement evidencing the transaction was entered into on 10.08.1999

and the same is produced as Ext.D7. It is further stated that soon

after the purchase, the vehicle was taken into the custody by Perinadu CRL.A.No.701 OF 2006

Police and the accused had gone to the house of the complainant for

arranging the release of the vehicle from the police station. According

to her, an account was opened in her name in Catholic Syrian Bank,

Pathanamthitta branch at the instance of the complainant and that it

was the complainant who advanced a sum of Rs.1,000/- for opening

the account. The accused further says that the cheque in question was

obtained by the complainant by threat and coercion and that she had

already instructed the Bank not to make payment on the cheque.

Ext.D6 letter is the said instruction sent by the accused to the Manger

of Catholic Syrian Bank, Pathanamthitta. A reading of Ext.D6 letter

would show that the accused had opened the account on 06.07.2000

and Ext.D6 letter is issued on 13.07.2000. It is specifically stated in

the letter that she was issued with 10 cheque leaves against the

account and that cheque leaves bearing No.207901 had been taken

from her by the complainant along with other cheque leaves and a

sum of Rs,.1,50,000/- had been written up on the said cheque leaf. It

is further stated that the accused apprehends that the cheque leaves

will be misused by the complainant and hence any payment on the

said cheques may be stopped. The specific case of the appellant is that

on 20.07.2000 he had demanded from the accused, the amount of

Rs.1,50,000/- which is allegedly borrowed by the accused on CRL.A.No.701 OF 2006

25.06.2000, and the accused had on that day, issued to him the

cheque leaves in question, duly executed, showing the date as

25.07.2000. In the light of Ext.D6 letter which is issued as earlier as

on 13.07.2000, it is difficult to appreciate the contention put forward

by the appellant. If the appellant's case is to be believed, there was no

occasion for the accused to have sent a letter on 13.7.2000, to the

Bank, requesting to stop payment. The court below relying on the

above facts as well as the evidence of the parties, acquitted the 1 st

respondent finding her not guilty of offence under Section 138.

3. I do not find any reason to interfere with the said finding of

the court below particularly in the light of the fact that this is a case

where stop payment has been issued much before the date shown on

the cheque leaves and specifically stating that the cheque leaves have

been handed over to the complainant and there is an apprehension

that the same may be misused.

The appeal fails and is dismissed. In the circumstances of the

case, there will be no order as to costs.

Sd/-

T.R.RAVI

JUDGE Sn