High Court Kerala High Court

Retnakar vs Shyfudeen on 6 October, 2008

Kerala High Court
Retnakar vs Shyfudeen on 6 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 421 of 2001(A)



1. RETNAKAR, MANAGING PARTNER M/S.GEE & JAY
                      ...  Petitioner

                        Vs

1. SHYFUDEEN
                       ...       Respondent

                For Petitioner  :SRI.FEBIN J.VELUKARAN

                For Respondent  :SRI.BIMAL K.NATH

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :06/10/2008

 O R D E R
                     V.K.MOHANAN, J.
           ---------------------------------------------
                  Crl.A.No. 421 of 2001
           ---------------------------------------------
          Dated this the 6th day of October, 2008

                      J U D G M E N T

This appeal is filed by the complainant

challenging the order of acquittal passed by the court

below under Section 255(1) of the Code of Criminal

Procedure in C.C.No.803 of 1998 on the file of the Judicial

Fist Class Magistrate Court-III, Kottayam.

2. The case of the appellant/complainant is that

the first respondent/accused issued a cheque dated

9.10.1997 drawn on the State Bank of Travancore,

Anandavalleeswaram Branch, Kollam for an amount of

Rs.20,000/- towards the discharge of the debt due to the

complainant. According to the complainant, when the

cheque was presented for collection through the State

Bank of Travancore, Kanjikuzhy Branch, Kottayam, the

cheque was returned on 4.3.1998 with an endorsement

‘Refer to drawer’. As the cheque was dishonoured and

returned, the complainant caused to send a lawyer notice

to the accused intimating the receipt of dishonour memo

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from the bank and also demanding to pay back the

amount. According to the complainant, in spite of the

notice, no amount was paid and hence, a complaint was

filed alleging offence under Section 138 of the

Negotiable Instruments Act, 1881 (for short ‘N.I.Act’)

against the accused and the court took cognizance upon

the complaint and instituted C.C.No.803 of 1998. On

appearance of the accused, particulars were read over

to him who pleaded not guilty which resulted in further

trial during which PW1 was examined from the side of

the complainant and Exts,P1 to P9 were marked. On the

side of the accused, DW1 was examined and Exts.D1 and

D2 were marked. The trial court formulated two issues

for its consideration and finally came into a conclusion

that the accused was not guilty for the offence under

Section 138 of the N.I.Act and accordingly, he was

acquitted under Section 255(1) of the Cr.P.C. It is the

above order of acquittal, challenged in this appeal.

3. The complainant is represented by the Power

of Attorney Holder who is examined as PW1. Ext.P1 is

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the Power of Attorney. Ext.P2 is the cheque issued by

the accused. Ext.P3 is the dishonour memo received by

the complainant from the State Bank of Travancore,

Anandavalleeswaram Branch. Ext.P4 is the lawyer

notice issued to the accused and Ext.P5 is the postal

receipt. Ext.P6 is the acknowledgement card. The

relevant page of the cheque book register of S.B.T.,

Anandavalleeswaram Branch is produced and marked as

Ext.P7 and Ext.P8 is the cheque returned register. The

accused admitted the execution of the cheque by

admitting his signature on Ext.P2 cheque. The case put

forward by the accused is to the effect that during the

transaction between the accused and the complainant,

the payment is being made only through cash or draft

and the same is not effected through cheque. Ext.P2

cheque is given only as a security. Though the accused

stated that the cheque was issued as a security,

according to the court below, he did not produce any

evidence to substantiate the same and the court had

further held that the presumption under Sections 118(a)

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and 139 of the N.I.Act is in favour of the complainant

and the accused has not rebutted the same and

accordingly, the court below found that Ext.P2 cheque

was issued by the accused for consideration and in

discharge of the liability. Since the accused has not filed

any appeal against the above finding of the court below,

I need not go into the merits of the conclusions arrived

by the court below on the above point.

4. The court below was of the opinion that the

complainant had not produced any evidence to establish

the ingredients and liability under Section 138 of the

N.I.Act. The case of the complainant is that Ext.P2

cheque was returned as there was no sufficient fund in

the account of the accused to honour Ext.P2 cheque. It

is beyond dispute that Ext.P2 cheque was dishonoured

due to the reason ‘Refer to drawer’ as evidenced by

Ext.P3 memo. The court below had already found that

the complainant has neither examined the Bank

Manager nor produced the certified copy of the ledger

to prove that there was no sufficient fund in the account

Crl.A. NO.421 of 2001

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of the accused to honour Ex.P2 cheque. After stating

the essential ingredients of Section 138 of the N.I.Act,

the court concluded that in the present case, there is no

material or evidence to show that Ext.P2 cheque was

returned for insufficiency of fund in the account of the

accused. In order to attract the penal liability, the

complainant has to establish that the cheque in question

is returned by the bank unpaid, either because of the

amount of money standing to the credit of that account

is insufficient to honour the cheque or that it exceeds

the amount arranged to be paid from that account by an

agreement made with that bank. In the present case,

the case of the complainant is that the cheque in

question was dishonoured for the reason that there was

no sufficient fund in the account of the accused to

honour the cheque. On examination of the materials and

evidence on record, it could be seen that the

complainant has miserably failed to establish the above

ingredients of Section 138 of the N.I.Act and therefore,

the trial court correctly concluded that there was no

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evidence to attract Section 138 of the N.I.Act as the

complainant had not proved the insufficiency of fund in

the account of the accused to honour the cheque.

Though PW1 was examined and certain documents were

produced, none of those evidences are sufficient to hold

that Ext.P2 cheque was dishonoured for want of

sufficient fund in the account of the accused. It is

pertinent to note that from the evidence adduced by the

complainant, especially in the light of Exts.P2 and P3, it

can be seen that the reason for dishonour of cheque is

other than what stated in Section 138 of the N.I.Act.

Therefore, the complainant has miserably failed to

discharge the duty in making out a case against the

accused in terms of Section 138 of the N.I.Act. Thus,

nothing is brought out to the notice of this Court to take

a different view based upon the available materials and

therefore, this Court cannot interfere with the order of

acquittal passed by the court below.

5. In the light of the above facts and

circumstances and the discussion, no ground is made

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out to interfere with the order of acquittal passed by the

court below and the appeal is devoid of merit.

Accordingly, this Criminal Appeal is dismissed.

V.K.Mohanan,
Judge
MBS/

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V.K.MOHANAN, J.

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Crl.A.NO. 421 OF 2001

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J U D G M E N T

DATED:6-10-2008

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