Kerala High Court
M/S Sree Gokulam Chit & Finance Company ... vs Mr. Joy on 31 January, 2012
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 14TH DAY OF JANUARY 2013/24TH POUSHA 1934
CRL.A.No. 1496 of 2012 ()
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(JUDGMENT IN CC 316/2009 of ADDL.C.J.M., ERNAKULAM
DATED 31-01-2012)
APPELLANT/COMPLAINANT:
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M/S SREE GOKULAM CHIT & FINANCE COMPANY (PVT.) LTD.,
CORPORATE OFFICE AT NO. 66, ARCOT ROAD, CHENNAI-24
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER
MR. SURESH BABU C.K., S/O. KELAPPAN, DEPUTY MANAGER,
KALOOR BRANCH, MUTHIRAPARAMBIL BUILDING, COCHIN-17.
BY ADVS.SRI.M.K.DILEEPAN
SRI.DEEPAK T.NEDUNGADAN
RESPONDENTS/ACCUSED AND STATE:
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1. MR. JOY, AGED ABOUT 65 YEARS
PALLATH HOUSE, TOG ROAD,
NORTH KALAMASSERY-683104.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682031.
R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
14-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.T.RAVIKUMAR, J.
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Crl.A.No.1496 of 2012
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Dated 14th January, 2013
JUDGMENT
This appeal is directed against the Judgment of acquittal in C.C.No.316 of 2009 of the court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. The appellant herein was the complainant and the first respondent herein was the accused, therein. The appellant filed a private complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act against the first respondent. The case of the complainant is as follows:-
The complainant is a private limited company dealing with business of chit and financial transactions. The wife of the first respondent/accused Mrs.Leena Joy was a subscriber to two chitties conducted by the complainant. She bid the chits and received the amount. The first respondent stood as guarantor for the repayment of the amount due from his wife in respect of such chits. When she committed default in effecting payment of the monthly subscription the appellant requested the accused and his wife to effect payment. Thereupon, the accused issued Ext.P5 cheque dated 29.7.2009 for an amount of Rs.1,33,878/- drawn on Lord Krishna Bank Ltd., Kaloor Branch in favour of the complainant company. The said cheque on its Crl.A.No.1496/2012 2 presentation for encashment dishonoured on the ground `account blocked'. Despite the receipt of the statutory notice issued within the statutorily prescribed period by the complainant the first respondent had not paid the amount covered by Ext.P5 cheque. It was in the said circumstances that the said private complaint was filed.
2. On receipt of summons from the court the first respondent entered appearance and copies of all relevant records were furnished to him. After considering the complaint and accompanying records particulars of the offence under Section 138 of the Negotiable Instruments Act were read over and explained to him. Thereupon, the first respondent pleaded not guilty. To prove the charge against the first respondent the Deputy Manager of the Kaloor Branch of the Company who filed the complaint as the power of attorney holder was examined as PW1. Exts.P1 to P11 were got marked. After closing the complainant's evidence the first respondent was examined under Section 313 of the Code of Criminal Procedure. All the incriminating circumstances put to the first respondent were denied by him. The first respondent denied the transaction and also the execution of Ext.P5 cheque. Thereupon, on the side of the defence the first respondent got himself examined as DW1. On a careful evaluation of the evidence on record the learned Magistrate Crl.A.No.1496/2012 3 came to the finding that the dishonour of Ext.P5 cheque for the reason "account blocked" is not akin to dishonour due to insufficiency of funds in the account maintained by the first respondent and that the appellant herein had failed to prove the execution of Ext.P5 cheque. Resultantly, the first respondent/accused was not found guilty under Section 138 of the Negotiable Instruments Act. This appeal is filed against the said order of acquittal.
3. After evaluating the evidence, the trial court found that the appellant had failed to prove the execution of Ext.P5 cheque. As noticed hereinbefore, the first respondent herein had denied the execution of Ext.P5 cheque and had taken the stand that he never stood as a surety for the chitty transaction of his wife. In such circumstances, the primary burden was definitely on the complainant/the appellant herein to establish the execution of Ext.P5 cheque. To prove the same the appellant had adduced only the oral testimony of PW1, as evidence. The trial court found that PW1 laid present complaint and adduced evidence in his capacity as the power of attorney holder of the company. It is also found that the complainant had no case that PW1 actually seen the execution of Ext.P5 cheque either in the complaint or in the proof affidavit filed in lieu of the chief examination. In this context, it is to be Crl.A.No.1496/2012 4 noted that even the proof affidavit filed by PW1 did not reveal how he got knowledge regarding the transactions involved in the case as well as the execution of Ext.P5 cheque. The affidavit also lacks details regarding the execution of the cheque and even the date on which Ext.P5 cheque was executed. What has been stated in the affidavit is that the accused/first respondent issued a cheque dated 29.7.2009 for an amount of Rs.1,33,878/- drawn on the Lord Krishna Bank Ltd., Kaloor Branch. Admittedly, the company was registered at Chennai. The learned Magistrate found that apart from a casual and superficial statement in the second paragraph of the proof affidavit that the accused issued Ext.P5 cheque towards payment of all the dues in the chit account there is no statement in the affidavit as to whether he had witnessed the execution of Ext.P5 cheque and it also lacks any averment as to how he got knowledge regarding the execution of Ext.P5 cheque by the accused from other sources. The learned counsel for the appellant contended that during the cross examination appellant had deposed that he had seen the execution. In fact, what has been stated even according to the learned counsel is that the first accused brought on filled in cheque and put his signature.
4. The learned Magistrate also arrived at the finding that the Crl.A.No.1496/2012 5 dishonour of Ext.P5 cheque for the reason `account blocked' is not akin to dishonour due to insufficiency of funds in the account of the first respondent. Admittedly, Ext.P5 cheque was dishonoured on the ground `account blocked'. It was a cheque dated 29.7.2009 for an amount of Rs.1,33,878/- drawn on Lord Krishna Bank Ltd., Kaloor Branch allegedly drawn by the first respondent. The learned Magistrate after appreciating the evidence held that there is nothing in the complaint or in the proof affidavit revealing the actual circumstances under which the account of the accused happened to be blocked. In other words, the evidence on record would not suggest that it was an action which is referable to the conduct on the part of the first respondent that resulted in blocking of the account. In that context, it is to be noted that there is no dispute with respect to the fact that Lord Krishna Bank was not in existence at the time when the said cheque was presented for collection and that Ext.P6 dishonour memo was issued by HDFC Bank Ltd. The appellant has not chosen to examine the concerned Branch Manager of the HDFC Bank from which Ext.P6 dishonour memo was issued to prove that at the time of presentation of the cheque sufficient fund was not available in the account considering the factum of amalgamation of Lord Krishna Bank with HDFC Bank. As noticed hereinbefore, no evidence was adduced by the complainant to show that the dishonour of Ext.P5 cheque Crl.A.No.1496/2012 6 was due to insufficiency of funds in the account of the accused or due to the reason that it exceeded the amount arranged to be paid from that account. There is no dispute with respect to the said factual findings. If that be so, it cannot be said that the finding of the learned Magistrate that, in the said circumstances, the dishonour of Ext.P5 cheque for the reason `account blocked' cannot be considered as one akin to dishonour due to insufficiency of funds in the account of the accused. In a case where doubtful circumstances exist certainly a judgment of acquittal calls for no interference.
In the circumstances mentioned above I have no hesitation to hold that the appellant herein had failed to make out a prima facie case warranting appellate interference with a judgment of acquittal. When the appellant failed to prove the execution of Ext.P5 cheque and in the light of the finding that Ext.P5 cheque was dishonoured for the reason `account blocked' and the circumstances obtained in this case it cannot be held that the account was blocked on account of any action on the part of the first respondent. In fact, the appellant did not have any such case. The appellant had not pleaded and proved the circumstances as to why it was dishonoured for the reason `account blocked' by examining any competent officer of the HDFC Bank which issued Ext.P6 Crl.A.No.1496/2012 7 dishonour memo. In the said circumstances, this appeal is liable to fail and accordingly, it is dismissed.
Sd/-
C.T.RAVIKUMAR Judge TKS