IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 418 of 2003()
1. RAKESH TRADE CREDITS LIMITED,
... Petitioner
Vs
1. M.HUSSAIN, S/O. MOIDEENKUTTY,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :SRI.T.K.AJITH KUMAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :09/06/2009
O R D E R
M.N. KRISHNAN, J.
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Crl. Appeal NO. 418 OF 2003
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Dated this the 9th day of June, 2009.
J U D G M E N T
This appeal is preferred against the order of acquittal in
S.T.40/99 of the Chief Judicial Magistrate Court, Manjeri. The
brief facts necessary for the disposal of the appeal are stated
as follows. It is the case of the complainant that the accused
had purchased a vehicle under a hire purchase agreement and
on account of a final settlement on 25.7.98 towards the
discharge of the liability had issued a cheque for Rs.1,33,150/-
which when presented for encashment returned with
insufficiency of funds. Thereafter notice was issued and action
initiated.
2. The case of the defence appears to be that there
was no such transaction as alleged by the prosecution. It is
his case that he had gone to a private financing company for
the purpose of purchasing a vehicle and in that establishment
he met the Managing Director of the complainant’s company
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namely Jain and it was informed that a vehicle is available for
Rs.65,000/- and that the accused can purchase the same by
remitting the amount of Rs.65,000/- in 13 equal monthly
instalments. The vehicle so purchased was not in a good
condition. The contention is that in order to perform the
contract towards security a blank cheque was given and that
blank cheque is utilized for the purpose of filing the case.
3. Now, the only matter to be looked into is, being a
criminal prosecution whether the complainant has discharged
his burden to establish that the accused had issued a cheque
towards the discharge of the liability. According to the
complainant the original transaction is for Rs.1,10,000/- with a
stipulation to pay the amount in 30 monthly equal
instalments. It is the definite case of the complainant that on
25.7.98 the accused came over and settlement was arrived
whereby it was fixed that the amount due to the complainant
at Rs.1,33,150/-. It is his case that towards the discharge of
the liability a cheque was issued and the dishonour of the
cheque is the cause of action. Now, the learned Chief Judicial
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Magistrate had analysed the evidence threadbare in this case
and had pointed out the improbability and impossibility to
accept the case of the complainant.
4. It has to be remembered that, according to the
prosecution, the amount due on 25.7.1998 is Rs.1,33,150/-.
On 1.6.1998 the complainant issued a notice to the accused
stating that there was a hire purchase agreement for
Rs.65,000/- and you have to pay that amount. When
confronted with such difficult situation the blame was put on
the lawyer contending for the position that the lawyer had
issued the notice without knowing about the settlement. But it
can again be seen that another notice is issued as Ext.D2 and
yet another notice on 26.2.1999 as Ext.D5. In Ext.D2 notice
also the amount shown is Rs.78,000/-. So issuance of Ext.P13
coupled with Exts.D2 and D3 would conclusively establish one
factor namely that there was no settlement talk as alleged by
the complainant on 27.5.98. It is not a private transaction
between the two individuals. It is a company which enters
into a transaction or a settlement. When a company enters
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into a transaction or a settlement it has to be evidenced by
documents which is kept in the ordinary course of business
everyday. Absolutely no scrap of paper is produced in support
of the contention raised by the complainant in this case. Then
the learned Chief Judicial Magistrate has pointed out the
contention of the complainant that it has nothing to do with
the Priyanka Financiers at Muvattupuzha. The learned Chief
Judicial Magistrate relies upon the statement in the notice to
the effect that the amount has to be paid by the accused to
the complainant’s representative at Priyanka Financiers,
Muvattupuzha. So what is spoken to and projected by the
complainant appears to be totally incorrect and therefore it
has to be held that the evidence is not sufficient. It has to be
always remembered that a mere admission of a signature in a
blank cheque does not amount to execution of a document.
Here, there is a specific contention that only a blank signed
cheque has been given. There was a duty cast upon the
complainant to prove the execution of the same then only the
legal presumptions u/Ss. 118 and 113 of the N.I.Act would
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follow. It is absolutely lacking and therefore execution of
cheque D1 is not proved. When it is so presumption does not
arise. The case set up by the accused appears to be more
probable and acceptable.
5. Lastly, the learned counsel would submit that it was
the burden on the accused to prove that there was no
mediation. It is a well settled principle that u/s 315 Cr.P.C.
no accused can be compelled to give evidence and further the
non-supply of a material by an accused cannot be commended
upon in a criminal proceedings. So that argument also cannot
be accepted. So, on an evaluation of the entire materials, I
find that the learned Chief Judicial Magistrate had only arrived
at a proper decision on a consideration of the materials made
available before him. The appeal lacks merit and therefore it
is dismissed.
M.N. KRISHNAN, JUDGE.
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Crl.A. 418 OF 2003
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M.N. KRISHNAN, J.
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Crl.A. No. 418 OF 2003
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J U D G M E N T
9th June, 2009