{"id":171578,"date":"2009-03-27T00:00:00","date_gmt":"2009-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-prabhakaran-vs-mohandas-on-27-march-2009"},"modified":"2014-04-10T16:03:52","modified_gmt":"2014-04-10T10:33:52","slug":"m-prabhakaran-vs-mohandas-on-27-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-prabhakaran-vs-mohandas-on-27-march-2009","title":{"rendered":"M.Prabhakaran vs Mohandas on 27 March, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
M.Prabhakaran vs Mohandas on 27 March, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 242 of 2002()\n\n\n1. M.PRABHAKARAN, S\/O. MEENAPPA MOOTHAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. MOHANDAS, S\/O.NARAYANA PANICKER,\n                       ...       Respondent\n\n2. STATE OF KERALA, REPRESENTED BY PUBLIC\n\n                For Petitioner  :SRI.P.VIJAYA BHANU\n\n                For Respondent  :SRI.V.CHITAMBARESH\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :27\/03\/2009\n\n O R D E R\n              S.S.SATHEESACHANDRAN, J.\n                  -------------------------------\n                CRL.A.NO.242 OF 2002 (A)\n                -----------------------------------\n         Dated this the 27th day of March, 2009\n\n                      J U D G M E N T\n<\/pre>\n
     Complainant is the appellant. The complaint filed by him<\/p>\n
for prosecuting the respondents\/accused for the offence<\/p>\n
punishable under Section 138 of the Negotiable Instruments<\/p>\n
Act, for short the ‘N.I.Act’, after trial, ended in a judgment of<\/p>\n
acquittal in favour of the accused. Challenging the legality,<\/p>\n
propriety and correctness of that acquittal, he has preferred<\/p>\n
this appeal.\n<\/p>\n<\/p>\n
     2. The case of the complainant is that, the accused had<\/p>\n
borrowed a sum of Rs.50,000\/- from him executing a<\/p>\n
promissory note agreeing to repay the sum with interest at<\/p>\n
18% per annum. Subsequently, when demand was made for<\/p>\n
repayment, it is his case that Ext.P1 cheque was issued for a<\/p>\n
sum of Rs.60,000\/-, promising its encashment on presentation<\/p>\n
in due course.       The cheque presented was, however,<\/p>\n
CRL.A.242\/02                    2<\/span><\/p>\n
dishonoured due to insufficiency of funds in the account of the<\/p>\n
accused. Statutory notice issued intimating dishonour of the<\/p>\n
cheque and demanding the sum covered by the instrument<\/p>\n
was responded with a reply notice raising untenable<\/p>\n
contentions. The accused in the reply notice contended that<\/p>\n
he was a subscriber to a chitti conducted by the complainant<\/p>\n
and on prizing of chitti, the prize amount was given only after<\/p>\n
collecting a blank signed cheque and also a blank signed<\/p>\n
stamped paper as security for payment of future subscriptions<\/p>\n
to the chitti. Though he had paid the future subscriptions and<\/p>\n
the chitti had been terminated, the blank signed stamped<\/p>\n
paper and also the blank cheque were not returned, and<\/p>\n
misusing that cheque, it is his case, the complaint had been<\/p>\n
filed on false allegations. In the light of the reply as above,<\/p>\n
the complainant launched the prosecution against the accused<\/p>\n
for the prosecution under Section 138 of the N.I.Act.<\/p>\n
      3.    The accused, on appearance, pleaded not guilty.<\/p>\n
Complainant examined himself as PW1 and got marked<\/p>\n
Exts.P1 to P6. During the course of the cross examination of<\/p>\n
CRL.A.242\/02                     3<\/span><\/p>\n
the complainant as PW1, and also when questioned under<\/p>\n
Section 313 of the Cr.P.C., reiterating his plea of innocence,<\/p>\n
the accused pressed with the defence version already<\/p>\n
canvassed in his reply notice.     To substantiate his defence,<\/p>\n
the accused examined one witness as DW1, who claimed to be<\/p>\n
present when the blank signed stamped paper and also blank<\/p>\n
cheque were obtained by the complainant from the accused.<\/p>\n
The accused also produced a document to show the collection<\/p>\n
of the blank signed stamped paper and blank cheque, and it<\/p>\n
was exhibited as Ext.D1.\n<\/p>\n<\/p>\n
      4.    The learned Magistrate, after appreciating the<\/p>\n
materials tendered in the case, came to the conclusion that<\/p>\n
the defence canvassed by the accused is probable and the<\/p>\n
complainant had not proved by cogent and convincing<\/p>\n
evidence that Ext.P1 cheque had been issued towards<\/p>\n
discharge of a debt or liability. In that view of the matter, the<\/p>\n
accused was found not guilty and he was acquitted of the<\/p>\n
offence imputed under Section 138 of the N.I.Act.<\/p>\n
CRL.A.242\/02                    4<\/span><\/p>\n
      4.    I heard the counsel of both sides.    The learned<\/p>\n
counsel for the complainant urged before me that the learned<\/p>\n
Magistrate misappreciated the evidence and it had resulted in<\/p>\n
forming wrong conclusion leading to miscarriage of justice.<\/p>\n
The complainant had established by the materials produced<\/p>\n
that Ext.D1 cheque was duly executed by the accused towards<\/p>\n
discharge of a debt and it was supported by other exhibits<\/p>\n
produced by the complainant in the case.          The learned<\/p>\n
Magistrate, according to the counsel for the complainant, gave<\/p>\n
unmerited consideration to innocuous circumstances to hold<\/p>\n
that the defence canvassed by the accused is probable. The<\/p>\n
documents produced by the complainant to show that a blank<\/p>\n
signed stamped paper and also a blank cheque exhibited as<\/p>\n
Ext.D1 was found unreliable by the learned Magistrate. It was<\/p>\n
also found that the evidence tendered through the witness<\/p>\n
DW1, as to witnessing the transaction was also not credit<\/p>\n
worthy. The accused also did not mount the box to swear in<\/p>\n
support of his defence. Still the learned Magistrate, according<\/p>\n
to the learned counsel, found fault with the complainant for<\/p>\n
not proving the execution of Ext.P1 cheque and also the<\/p>\n
CRL.A.242\/02                   5<\/span><\/p>\n
transaction under which that cheque was issued to have a<\/p>\n
successful prosecution of the accused for the offence indicated<\/p>\n
against him. Acquittal of the accused is based on erroneous<\/p>\n
reasonings, and as such, it is liable to be reversed, is the<\/p>\n
submission of the learned counsel for the complainant. On the<\/p>\n
other hand, the learned counsel for the accused submitted<\/p>\n
that even the admitted case of the complainant as to collecting<\/p>\n
a promissory note and retaining that negotiable instrument,<\/p>\n
while prosecuting the accused for the offence under Section<\/p>\n
138 of the N.I.Act, lend credence to the defence canvassed by<\/p>\n
the accused that the cheque had been issued in blank form<\/p>\n
with signature alone as a security. When due execution of<\/p>\n
Ext.P1 cheque had not been established, it is submitted the<\/p>\n
case set up against the accused was rightly found against by<\/p>\n
the learned Magistrate, and at any rate in the proved facts and<\/p>\n
circumstances of the case, no interference with the acquittal is<\/p>\n
called for.\n<\/p>\n<\/p>\n
      5. I have gone through the records of the case giving<\/p>\n
consideration to the submissions made by the counsel of both<\/p>\n
CRL.A.242\/02                  6<\/span><\/p>\n
sides.     It has to be noted that the definite case of the<\/p>\n
complainant right from inception, even from his notice<\/p>\n
intimating dishonour of the cheque is that he had advanced<\/p>\n
Rs.50,000\/- to the accused collecting a promissory note from<\/p>\n
him and transaction, was agreed to be settled by repayment<\/p>\n
with 18% interest per annum. Later, when demand was made<\/p>\n
for repayment with the interest due, the accused issued a<\/p>\n
cheque for Rs.60,000\/- and that cheque, when presented, was<\/p>\n
dishonoured, was his case. He had retained the promissory<\/p>\n
note, while prosecuting the accused on     dishonour of the<\/p>\n
cheque, is taken serious exception by the learned Magistrate<\/p>\n
as a circumstance which affects the merit of his complaint. I<\/p>\n
do not find any merit in the reasoning so taken by the<\/p>\n
Magistrate where the complainant was candid enough to<\/p>\n
admit that the promissory note had been retained by him and<\/p>\n
the cheque had been issued towards discharge of the sum<\/p>\n
covered by the note. In evidence also he would state that he<\/p>\n
had handed over the promissory note and also the cheque to<\/p>\n
his counsel. At any rate, the accused has no case that any<\/p>\n
proceedings was taken for realisation of the sum covered by<\/p>\n
CRL.A.242\/02                     7<\/span><\/p>\n
the promissory note separately. If at all the promissory note<\/p>\n
was retained by the complainant, when the cheque was<\/p>\n
handed over, the accused should have collected that<\/p>\n
instrument. The facts and circumstances would indicate that<\/p>\n
the promissory note was retained by the complainant perhaps,<\/p>\n
to assure the honouring of Ext.P1 cheque handed over by the<\/p>\n
accused.      The interest agreed upon by the parties for<\/p>\n
repayment of the sum covered by the promissory note was<\/p>\n
18% per annum. If a calculation was made, with such an<\/p>\n
interest, the sum would come to Rs.60,500\/- on the date when<\/p>\n
the cheque was handed over was another reason which<\/p>\n
prompted the learned Magistrate to hold that the cheque<\/p>\n
might have been handed over in blank form. The reasoning of<\/p>\n
the Magistrate as indicated to say the list, deserves no merit<\/p>\n
at all. It is the specific case of the complainant that when the<\/p>\n
sum was demanded,           the accused issued a cheque for<\/p>\n
Rs.60,000\/-. The sum stated in the cheque did not reflect the<\/p>\n
interest due till that date, is not a ground to doubt the worth<\/p>\n
of that instrument.      Other than the two circumstances, as<\/p>\n
referred to above, no other reason is stated by the learned<\/p>\n
CRL.A.242\/02                  8<\/span><\/p>\n
Magistrate to doubt the case set up by the complainant. Both<\/p>\n
the reasonings, it has been found, is thoroughly unacceptable.<\/p>\n
Now the question to be considered is whether in view of the<\/p>\n
defence set up by the accused that the cheque had been<\/p>\n
issued in blank form with signature alone, the complainant is<\/p>\n
bound to prove the transaction and also that the instrument<\/p>\n
had been handed over duly executed with all the entries filled<\/p>\n
up.    Merely by setting up a defence that the cheque was<\/p>\n
issued in blank form with signature alone, without anything<\/p>\n
more, no burden is cast upon the complainant to show that<\/p>\n
the instrument had been duly executed. If that be so, the<\/p>\n
presumption covered by Section 118 and also Section 139 of<\/p>\n
the N.I.Act would be rendered meaningless.        If only the<\/p>\n
circumstances disclosed and materials produced indicate that<\/p>\n
the defence pleaded that the cheque had been issued in blank<\/p>\n
form with signature is probable, then alone the presumption<\/p>\n
under Section 139 can be considered as rebutted demanding<\/p>\n
proof from the complainant that the instrument had been<\/p>\n
issued towards discharge of a debt or liability.    Even the<\/p>\n
Magistrate has found that whatever materials tendered by the<\/p>\n
CRL.A.242\/02                    9<\/span><\/p>\n
accused to prove his defence, by examining DW1 and<\/p>\n
exhibiting D1, is of no avail and has no merit in advancing his<\/p>\n
defence. The evidence of the witness, DW1 was found totally<\/p>\n
unreliable. A carbon copy was exhibited as Ext.D1 to show<\/p>\n
that the complainant had acknowledged the receipt of a blank<\/p>\n
signed stamped paper and also a blank cheque. The learned<\/p>\n
Magistrate examining that document found that it is of no<\/p>\n
value, and further observed that prude man could be expected<\/p>\n
to execute such a document for collecting a blank signed<\/p>\n
cheque as security. After finding that the defence canvassed<\/p>\n
by the accused is not substantiated by any material, the case<\/p>\n
of the complainant was thrown out holding that the defence of<\/p>\n
the accused is probable. Not only in the materials produced<\/p>\n
by the accused there is nothing to show that his defence is<\/p>\n
probable, but, on the contrary, by his own evidence, it has<\/p>\n
been proved that his defence is unworthy of any value.<\/p>\n
Merely because, the complainant had retained the promissory<\/p>\n
note, which he was fair enough to concede right from the<\/p>\n
inception, even before launching the prosecution against the<\/p>\n
accused, his case cannot be doubted.    Sworn testimony of the<\/p>\n
CRL.A.242\/02                   10<\/span><\/p>\n
complainant, PW1, would convincingly show that Ext.P1<\/p>\n
cheque had been issued by the accused towards discharge of a<\/p>\n
debt which he had with the complainant. It has also been<\/p>\n
established that the cheque was dishonoured due to<\/p>\n
insufficiency of funds in the account of the accused, and<\/p>\n
despite a notice of dishonour, the sum under the instrument<\/p>\n
was not discharged.      In the proved facts of the case, in<\/p>\n
reversal of the judgment passed in favour of the accused, I<\/p>\n
find the accused guilty of the offence under Section 138 of the<\/p>\n
N.I.Act and convict him thereunder.\n<\/p>\n<\/p>\n
      6.    Now on the question of sentence, I find that<\/p>\n
incarceration of the accused for a term is not called for in the<\/p>\n
proved facts and circumstances of the case. The accused is<\/p>\n
sentenced to undergo till the rising of the court and to pay a<\/p>\n
compensation of Rs.55,000\/- to the complainant under Section<\/p>\n
357 (3) of the Cr.P.C. within two months. If compensation is<\/p>\n
not paid within the time fixed, the accused shall undergo<\/p>\n
simple imprisonment for a period of three months.           The<\/p>\n
accused shall appear and his sureties to produce him on<\/p>\n
CRL.A.242\/02                11<\/span><\/p>\n
1st July, 2009, before the Judicial First Class Magistrate,<\/p>\n
Palakkad, and the learned Magistrate shall execute the<\/p>\n
sentence as directed.\n<\/p>\n<\/p>\n
      Appeal is allowed.\n<\/p>\n<\/p>\n
                         S.S.SATHEESACHANDRAN
\n                                   JUDGE<\/p>\n
prp<\/p>\n
                S.S.SATHEESACHANDRAN, J.\n<\/p>\n<\/p>\n
 ——————————————————–<\/p>\n
                    CRL.A.NO.242 OF 2002 (A)<\/p>\n
———————————————————<\/p>\n
                                   J U D G M E N T<\/p>\n
———————————————————<\/p>\n
                                 27th March, 2009<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M.Prabhakaran vs Mohandas on 27 March, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 242 of 2002() 1. M.PRABHAKARAN, S\/O. MEENAPPA MOOTHAN, … Petitioner Vs 1. MOHANDAS, S\/O.NARAYANA PANICKER, … Respondent 2. STATE OF KERALA, REPRESENTED BY PUBLIC For Petitioner :SRI.P.VIJAYA BHANU For Respondent :SRI.V.CHITAMBARESH The Hon’ble MR. Justice S.S.SATHEESACHANDRAN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-171578","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM.Prabhakaran vs Mohandas on 27 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-prabhakaran-vs-mohandas-on-27-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.Prabhakaran vs Mohandas on 27 March, 2009 - 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