Kerala High Court
Suresh Kumar vs Harilal on 6 March, 2025
2025:KER:18783
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
CRL.A NO. 626 OF 2007
AGAINST THE ORDER DATED 10.11.2006 IN Crl.L.P. NO.500
OF 2006 OF HIGH COURT OF KERALA ARISING OUT OF THE JUDGMENT
DATED 06.09.2005 IN Crl.A NO.697 OF 2003 OF THE COURT OF
SESSION, KOZHIKODE
APPELLANT/RESPONDENT/COMPLAINANT:
SURESH KUMAR
AGED 40 YEARS, S/O.KARUNAKARAN, KASUNIKANDY HOUSE
PROP: MERLIHEN ENTERPRISES, PANTHALAYANI AMSOM AND
DESOM OF KOYILANDY TALUK.
BY ADV SRI.JACOB ABRAHAM
RESPONDENTS/2ND APPELLANT:
1 HARILAL
S/O.LATE PADMANABHAN, PUTHIYAPURAYIL HOUSE,
CHEMENCHERY VILLAGE, THUVAKODE DESOM,
KOYILANDY TALUK.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.K.A.SALIL NARAYANAN
SMT.SHEEBA THOMAS, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
03.03.2025, THE COURT ON 06.03.2025 DELIVERED THE FOLLOWING:
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CRL.A NO. 626 OF 2007
2
C.S.SUDHA, J.
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Crl. Appeal No.626 of 2007
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Dated this the 6th day of March 2025
JUDGMENT
This is an appeal under Section 378(4) Cr.P.C. filed by the
complainant against the judgment dated 06/09/2005 in Crl.A.
No.697/2003 on the file of the Court of Session, Kozhikode, filed
against the judgment dated 21/10/2003 in C.C. No.289/2000 on the
file of the Judicial First Class Magistrate Court, Koyilandy.
2. According to the complainant, Proprietor of
Merline Enterprises, the accused owed an amount of ₹35,000/- to
him in respect of various items that had been purchased by the latter
from him. In discharge of the same, the accused issued Ext.P1
cheque which, on presentation before the bank, was dishonored due
to insufficient funds in the account of the accused. The complainant
caused to issue registered lawyer notice to the accused which was
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received by the accused. Though he received the notice, he failed to
send any reply or repay the amount. Hence the complaint alleging
the commission of the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (the N.I. Act).
3. The trial court by judgment dated 21/10/2003 in
C.C. No.289/2000 found the accused guilty of the offence
punishable under Section 138 of the N.I. Act and hence convicted
and sentenced him to simple imprisonment for six months and to
pay ₹40,000/- as compensation under Section 357(3) Cr.P.C. to the
complainant and in default to simple imprisonment for one month.
Aggrieved, the accused filed Crl.A. No.697/2003 before the Court
of Session, Kozhikode. The appellate court by the impugned
judgment set aside the conviction and sentence of the accused and
acquitted the accused under Section 255(1) Cr.P.C. Aggrieved, the
complainant has come up in appeal.
4. The only point that arises for consideration in this
appeal is whether the finding of acquittal of the accused by the
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appellate court requires any interference by this Court.
5. Heard both sides.
6. It was submitted by the learned counsel for the
appellant/complainant that even assuming the case of the
respondent/accused that Ext.P1 cheque was issued as security is
true, he is still liable for the offence punishable under Section 138
of the N.I. Act. It was also submitted that even if Ext.P1 cheque
was issued for the liability owed by the son of the accused to the
complainant, the accused would still be liable as Ext.P1 cheque was
issued from the account of the accused and the same bears his
signature.
7. Per contra, it was submitted by the learned
counsel for the respondent/accused that the financial transaction
alleged to exist between the parties by the complainant was not
established and hence the appellate court rightly acquitted the
accused. As there is no infirmity in the findings of the appellate
court, no interference into the same is called for, goes the argument.
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8. The allegation in the complaint is that the
respondent/accused owed an amount of ₹35,000/- to the
complainant as he had purchased several items from the latter's
concern. It was in discharge of the said amount he owed to the
complainant, Ext.P1 cheque had been issued. The complainant has
no case that Ext.P1 cheque was issued for the liability of DW1, the
son of the accused. The case of the accused is that he had no
financial transactions with the complainant. On the other hand,
there were transactions between the complainant and DW1, his son,
and in the said transaction, Ext.P1 cheque had been issued as
security. DW1, on examination, deposed that he had business
transactions with the complainant from the year 1995 onwards. All
the amounts he owed to the complainant were repaid. The amounts
which were paid by DW1 to the complainant have been recorded in
Ext.D1 and that on 27/08/1999, the account was finally settled and
the transaction closed. DW1 also deposed that Ext.P1 cheque was
given to the complainant as security in the transaction. Ext.D2
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series are the bills issued by the complainant in the transactions
with DW1. Ext.D2 series bills are admitted by the
appellant/complainant. Ext.D1 account book in the name of DW1
shows that the account between the parties was closed on
27/08/1999 by DW1 paying an amount of ₹3,000/-. PW1 admits all
the entries in Ext.D1 except the last transaction dated 27/08/1999.
Apart from Ext.P1 cheque, there is no material to show that any
transaction had taken place between the complainant and the
accused. The testimony of DW1 and Exts.D1 and D2 probabilise
the case of the accused that the financial transactions were actually
between the complainant and DW1, his son.
9. The accused has also taken up a case that Ext.P1
cheque was issued as security in the transaction between the
complainant and his son. The accused when questioned under
Section 313 Cr.P.C. denied any transaction with the complainant.
According to him, Ext.P1 cheque was given by DW1 in the year
1995 as security. This case of the accused is deposed by DW1 in
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the box. According to DW1, he used to purchase various items
from Merline Enterprises and Ext.D2 series are the bills in respect
of the purchase of the said items. On 07/04/1999, a sum of
₹68,593/- was due from him to the complainant. He repaid the
entire amount on 27/08/1999. According to DW1, in the year 1995,
when the transactions with the complainant commenced, he was not
having any bank account and hence he gave Ext.P1 cheque
obtained from the account of his father. The definite case put
forward by DW1 is that Ext.P1 cheque was issued in the year 1995
as security. Ext.X1 is the extract of the account of the accused with
the South Malabar Gramin Bank. Ext.X1 is not disputed by the
complainant. The said document was produced at the instance of
the complainant. As per Ext.X1, the accused had obtained a cheque
book with cheque leafs no.540931 to 540940. Ext.P1 is the cheque
bearing no.540940. Ext.P1 is seen to be the last cheque leaf issued
to the appellant from the South Malabar Gramin Bank in the
aforesaid cheque book. The appellate court on a perusal of Ext.X1
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found that cheque no.937 was encashed from the account of the
accused on 11/09/1995. Another cheque bearing no.144 was seen
encashed on 02/05/1996. Therefore, according to the appellate
court, it was clear that as on 02/05/1996, the accused had started
using the cheque leafs of another cheque book obtained
subsequently from the bank. In other words, as on 02/05/1996, the
accused must have exhausted all the cheque leafs including the
cheque bearing no.540940 in the cheque book containing cheque
leafs bearing numbers from 540931 to 540940. This would also
probabilise the case of DW1 that Ext.P1 cheque was in fact issued
in the year 1995 as security. Ext.D2 series bills also support the
defence version that the transactions were between the complainant
and DW1 and not with the accused. In the light of Exts.D1 and D2
series and the testimony of DW1, it was found that the accused had
succeeded in establishing a case that there was no transaction
between the complainant and the accused. The accused need only
show a preponderance of probability to establish his defence. He
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need not prove the case beyond reasonable doubt. The evidence on
record probabilises the case of the accused that Ext.P1 cheque was
issued as security in the year 1995 in the financial transaction that
existed between the complainant and DW1. Hence, the appellate
court was right in finding that the complainant had failed in
discharging his obligation of proving that there was a financial
transaction between the complainant and the accused and in
discharge of the same, Ext.P1 has been issued.
10. In these circumstances, I find no infirmity in the
findings of the trial court calling for an interference by this Court.
In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
NP
