2021 (5) TMI 843

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....unishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the N.I. Act. According to the complainant, in order to discharge a pre-existing liability, the accused/first respondent had issued him a cheque on 17.03.2008 for Rs. 3,00,000/-. It is the cheque bearing No. 625093 dated 17.03.2008 for Rs. 3,00,000/-, drawn on Thoppumbady branch of Centurian Bank Limited. At the time of issuing and handing over the cheque, he was made to believe that there is sufficient amount in the credit of the first respondent. Believing that version, the appellant presented the cheque through the Vayalar East Service Co-operative Society Limited on 27.03.2008. But it was returned dishonoured due to insufficiency of funds. He re....

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....,000/- has been made. According to the first respondent, the claim is not genuine. Thereafter, first respondent gave evidence as DW1. He gave a statement as given during the examination under Section 313(1)(b) of the Cr.P.C. At the time of examining PW1, the appellant had stated that the first respondent and the brother of the appellant were working together in the Fire Station near the Rama Varma Club. DW2, the Fire Station Officer was examined to belie this version. DW3 is the said K.D.Sunilkumar, the brother of the appellant. DW3 was declared hostile to the prosecution and was cross examined by the first respondent. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found that the appellant could not....

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....ons 118 and 139 of the N.I.Act. But the court in total negation of the settled principles of law proceeded to acquit the first respondent, which is bad. 3. The following authorities were also relied on by the learned counsel for the appellant:- i) Uttam Ram v. Devinder Singh Hudan and Another [2019(5) KHC 179] : [2019 (10) SCC 287] ii) Jacob K.M. v. State of Kerala and Another [ILR 2020 (1) Ker.677] iii) Sunitha v. Sheela Antony and Another [2020 (3) KLT 340] iv) Sandhya Rani G. v. State of Kerala and Another [2020(2) KLT 594] v) Gopakumar v. Anilkumar [2011(4) KLT SN 39 (C. No. 37)] vi) Joseph Jose v. Baby [2002 (3) KLT SN 46 (C. No. 64)] vii) Devan v. Krishna Menon [2010 (2....

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....ishonoured due to insufficiency of funds and thereafter, the first respondent was notified through the Ext.P4 notice, which was not responded and that gave a cause of action for instituting a complaint against the first respondent. While the appellant contended that the transaction had originated on the recommendations of DW3 his brother, it is the admitted case that the DW3 and the first respondent are members of service of the Fire and Rescue Department; for some time both of them were working together in Thrikkakara Fire Station and thereafter, they are working in different units. According to the appellant, on the recommendation of the brother, the appellant had lent an amount of Rs. 3,00,000/- to the first respondent. At that time itse....

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....st respondent has denied the execution of the cheque. In other words, he has denied any money transaction with the appellant. Now the remaining question is whether the cheque is proved to have been executed by the first respondent. For the same, there is only the oral testimony of PW1. DW3, though said that he has knowledge about the transaction, he has no direct knowledge and his evidence is only hearsay, which cannot advance the case of the appellant. 6. As rightly noticed by the trial court, a consistent case cannot be inferred in the version of PW1, with regard to the transaction. PW1 was examined twice. At first, he said that the amount was handed over sometimes in January, 2008 and that the cheque was issued on 17.03.2008. But a....

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.... details are not necessary to be stated in the complaint. If it is proved that the cheque was executed and issued by the first respondent/accused in discharge of a legally enforceable liability, then the appellant is entitled to draw the presumptions. But here, the appellant has inherent weaknesses in his case. All the same, even if there are lapses in the defence version that cannot be taken use of by the appellant. Here the appellant has not established that the cheque was issued in a transaction as alleged by him and therefore, the presumptions under Sections 118 and 139 of the N.I. Act cannot be drawn in favour of the appellant. 8. The facts of the case vis-a-vis the facts of the authorities relied on by the learned counsel for the a....