Kerala High Court
C.A.Prabhakaran vs P.V.Chandran & Others on 1 November, 2024
CRL.A NO. 1011 OF 2007 1 2024:KER:81453
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946
CRL.A NO. 1011 OF 2007
AGAINST THE ORDER/JUDGMENT DATED 30.05.2007 IN Crl.L.P.
NO.304 OF 2007 OF HIGH COURT OF KERALA ARISING OUT OF THE
ORDER/JUDGMENT DATED 30.03.2007 IN CC NO.719 OF 2006 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I, THODUPUZHA
APPELLANT/COMPLAINANT:
C.A.PRABHAKARAN
S/O.ACHUTHAN,
CHIRAVELIL HOUSE,KOLANI P.O,THODUPUZHA.
AMICUS CURIAE- SMT.SRUTHY K.K
RESPONDENTS/1ST ACCUSED AND THE STATE:
1 P.V.CHANDRAN
S/O.VELAYUDHAN
PONNURUTHUMKUDIYIL HOUSE,KOLANI P.O,, THODUPUZHA TALUK.
2 STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR,HIGH COURT OF KERALA.
BY ADVS.
SRI.MANSOOR.B.H.
SMT.P.B.WAHIDA
OTHER PRESENT:
CRL.A NO. 1011 OF 2007 2 2024:KER:81453
PP-SMT.SEENA C.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
01.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1011 OF 2007 3 2024:KER:81453
JUDGMENT
This appeal is at the instance of the complainant in CC
No.719 of 2006 on the file of Judicial First Class Magistrate-I,
Thodupuzha, challenging acquittal of the accused, under Section
138 of the Negotiable Instruments Act (hereinafter referred as 'the
NI Act'), vide judgment dated 30.03.2007.
2.The case of the complainant was that, the accused
borrowed an amount of Rs.20,000/- from him in April 2005, and on
demand, he issued Exts.P1 and P1(a) cheques dated 7/8/2005
drawn from his account in Service Co-operative Bank,
Thodupuzha, assuring that it would be encashed on presentation.
Though the complainant sent those cheques for collection, it was
returned dishonoured for the reason 'insufficient funds'. Thereafter,
he issued lawyer notice to the accused intimating dishonour of the
cheque and demanding the cheque amount. Inspite of receipt of
notice, the accused failed to repay the amount, and hence the
complaint.
3. After taking cognizance, the accused appeared before the
CRL.A NO. 1011 OF 2007 4 2024:KER:81453
trial court and particulars of offence were read over and explained,
to which, he pleaded not guilty and claimed to be tried.
4. PW1 was examined and Exts. P1 to P4 were marked from
the side of the complainant to prove his case.
5. On closure of complainant's evidence, the accused was
questioned under Section 313 of Cr.P.C. He denied all the
incriminating circumstances brought on record, and he filed a
written statement with the following contentions. Himself and one
Mr.Sasi, who is the brother of the complainant, were the Secretary
and President respectively of SNDP Kolani Branch, during the
period 1999-2002. On 15/5/2002, they together withdrew
Rs.20,000/- from the deposit of SNDP Union, Kolani in Service
Co-operative Bank, Thodupuzha, and they shared that amount
equally. For re-depositing that amount to the account of SNDP,
they borrowed Rs.20,000/- from one Mr.Sreekumar on 12/8/2002.
But Sreekumar demanded two cheques as security for giving that
amount. Since the accused was not having a bank account in his
name, he opened a new account in Service Co-operative Bank,
CRL.A NO. 1011 OF 2007 5 2024:KER:81453
Thodupuzha, and received two cheque leaves bearing Nos.31449
and 31450. Those cheques were handed over to Mr.Sreekumar
from the bank itself, after putting his signature. The amount
received from Sri.Sreekumar was handed over to Sri.Sasi, and it
was deposited in the account of SNDP along with interest. Out of
Rs.10,000/- due from the accused, he paid Rs.9,000/- in total, and
the balance due was only Rs.1,000/-. Due to some dispute over
interest, himself and Mr.Sasi, became inimical, and the blank
signed cheques given by the accused to Mr.Sreekumar was
received by Sasi, and he filed a false complaint against him,
through his brother-Prabhakaran. In order to substantiate his case,
DWs 1 and 2 were examined and Exts.D1 and X1 were marked.
6. After analysing the facts and evidence, and on hearing the
rival contentions from either side, the trial court acquitted the
accused, finding that Exts.P1 and P1(a) cheques were not issued
to the complainant, towards any legally enforceable debt due to
him.
7. Heard learned amicus curiae for the
CRL.A NO. 1011 OF 2007 6 2024:KER:81453
appellant/complainant and learned counsel for the 1st
respondent/accused.
8. Learned counsel for the appellant would submit that
towards discharge of Rs.20,000/- which was borrowed by the
accused from the complainant. Exts.P1 and P1(a) cheques
were issued, but it was returned dishonoured for the reason,
insufficient funds. Inspite of receipt of lawyer notice, the accused
failed to repay that amount. According to him, the presumptions
available under Sections 118 and 139 of the NI Act are also
there to show that, Exts.P1 and P1(a) cheques were issued
towards discharge of a legally enforceable debt. Moreover, the
appellant has complied with all the statutory formalities, in order
to bring home an offence punishable under Section 138 of the NI
Act. So the acquittal of the accused under Section 138 of the N.I
Act is liable to be set aside.
9. The definite case of the accused is that, while Sri.Sasi,
who is the brother of the complainant and himself were the
CRL.A NO. 1011 OF 2007 7 2024:KER:81453
President and Secretary respectively of SNDP Union, Kolani
Branch, they withdrew Rs.20,000/- from the account of the
SNDP, and in order to repay that amount, they borrowed
Rs.20,000/- from DW2-Sreekumar, after giving his two cheques
as security. But Sreekumar did not support the case of the
accused, and according to him, he never advanced Rs.20,000/-
to the accused. But he admitted that Sri.Sasi, who is the brother
of the complainant, is his friend, and the complainant also is
familiar to him. Further, on getting summons from court, he
talked to the complainant, and he was told that it was a case for
getting money borrowed by the accused. That statement itself
will show that, he is interested towards his friend Sasi, and his
brother who is the complainant.
10. According to the accused, when Rs.20,000/- was
borrowed from DW2 - Sreekumar on 12.08.2002, he demanded
two cheques leaves as security. Since he was not having a bank
account of his own, he opened a bank account in Service
CRL.A NO. 1011 OF 2007 8 2024:KER:81453
Co-operative Bank, Thodupuzha and received two cheque
leaves bearing Nos.31499 and 31450. DW1-the Secretary of the
Service Co-operative Bank, Thodupuzha deposed that the
account of the accused was opened in the Service Co-operative
Bank, Thodupuzha on 12/8/2002, and cheque Nos.31499 and
31450 were issued to the accused on that day. Ext.D1 pass book
of the accused also will show that, he opened the account with
Service Co-operative Bank, Thodupuzha on 12/8/2002. That
passbook shows entries from 12/8/2002 till 19/10/2004. During
that period two cheques reached that account; cheque No.48450
on 26/7/2004 and cheque No.11064 on 19/10/2004. The trial
court opined that, if Exts.P1 and P1 (a) cheques received by the
accused on 12/8/2002 were with him, those cheques might have
been issued, prior to the issuance of the other two cheques
which reached the bank in the year 2004. The case of the
accused is that, since Exts.P1 and P1(a) cheques were given to
Sri.Sreekumar on 12/8/2002 itself, as security, it did not reach
the bank, prior to the other two cheques, issued in the year
CRL.A NO. 1011 OF 2007 9 2024:KER:81453
2004.
11. Accused would say that, there arose some disputes
between himself and Sri.Sasi over the interest payable and so
Sasi received his cheques from Sreekumar, and filed a false
complaint, in the name of his brother. It seems to be a probable
case, especially when the testimony of DW2 shows that Sri.Sasi
is his friend and his brother Prabahakaran is his acquaintant. So
Exts.X1 and D1 coupled with the testimony of DWs 1 and 2 are
sufficient to rebut the presumptions available in favour of the
complainant. So this court finds no reason to interfere with the
impugned judgment by which the accused was acquitted.
The appeal fails and hence dismissed.
Sd/-
SOPHY THOMAS
JUDGE
ska
