High Court of KeralaSingle Judge2018-05-25Acquitted; conviction under Section 138 NI Act ...

James Antony v. Idukki District Spices Marketing Society and State of Kerala

Case / Petition Number:Crl.Rev.Pet.No. 839 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2018-05-25
Court Decision / Holding: The conviction and sentence under Section 138 of the NI Act is set aside; the revision petition is allowed; the accused James Antony is acquitted; bail bond is discharged.
Final Disposition: Acquitted; conviction under Section 138 NI Act set aside; revision petition allowed; bail bond discharged; accused acquitted.

Parties to the Case

Appellants / Petitioners

James Antony

Respondents

Idukki District Spices Marketing Society
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• S. Sachithananda Pai

Counsels for Respondents

• A.C. Devasia
• Public Prosecutor Shri B. Jayasurya

Case Synopsis & Summary

This is a criminal revision petition under Section 138 of the Negotiable Instruments Act challenging a conviction and sentence recorded against James Antony. The complainant, Idukki District Spices Marketing Society, alleged that the petitioner issued Ext.P1 a cheque for Rs. 86,464 toward discharge of a debt arising from the purchase of cardamom. PW1, the Honorary Secretary of the society, testified that cardamom was purchased for over Rs. 2,00,000 on 19.1.2008 and that more than Rs. 1,00,000 had been paid; two cheques were provided for the balance. Ext.P6, produced by the complainant, claimed that Rs. 1,11,714 was due and that payment was to be made before 31.3.2008, with the two cheques to be encashed if not paid. The prosecution contended Ext.P1 was issued during the execution of Ext.P6; the defence argued there was no material showing that the Ext.P1 amount was due on the date of its purported issuance. Cross-examination of PW1 revealed inconsistencies: Ext.P1 was stated to have been signed on 10.7.2008, whereas Ext.P6 suggested a pre-31.3.2008 arrangement, with Ext.P1 tied to Ext.P6. The High Court found the evidence insufficient to prove the cheque’s execution and the owing amount on the date of Ext.P1, noting the absence of account details and relying on M.S. Narayana Menon v. State of Kerala for guidance. Consequently, the court acquitted the petitioner and set aside the conviction and sentence under Section 138 NI Act, with bail discharged.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant argues that there is no material showing that the amount covered by Ext.P1 was due as on the date of its issuance. The evidence, particularly Ext.P6, cannot establish that the debt existed on the date Ext.P1 was allegedly issued. PW1’s testimony about the dates and the execution of Ext.P1 is inconsistent with Ext.P6, which indicates that the balance amount was to be paid by 31.3.2008 and that the two cheques could be used if payment failed. There is no independent account or transaction detail produced to prove that the amount covered by Ext.P1 was due on the cheque date. The failure to establish execution of Ext.P1 and the due amount on that date violates the essential elements of an offence under Section 138 NI Act. The court is urged to acquit for lack of proof beyond reasonable doubt and to set aside the lower courts’ conviction and sentence.

Contentions of Respondents

The respondent contends that Ext.P6 demonstrates a debt of over Rs. 1,00,000 arising from the cardamom transaction and that Ext.P1 was a cheque issued to secure payment. Ext.P6 states that payment was to be made before 31.3.2008 and that the two cheques could be invoked if the amount were unpaid, with one cheque (Ext.P1) having relevance to the Ext.P6 arrangement. The respondent argues that the trial court’s and revisional courts’ conclusions are justified on the evidence, including the admission that Ext.P1 was signed in the presence of PW1 and the cross-examination showing a contemporaneous link between Ext.P6 and Ext.P1. The evidence, together with the documentary Ext.P1 and Ext.P6, suffices to prove the debt and the cheque’s linkage to the transaction.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
M.S. Narayana Menon Alias Mani v. State of Kerala and another	2006 (6) SCC 39	Positive	The court expressly states that the view is supported by this decision, reinforcing the reasoning applied to require stronger proof of debt and cheque linkage.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 25TH DAY OF MAY 2018 / 4TH JYAISHTA, 1940 Crl.Rev.Pet.No. 839 of 2017 CRA 278/2011 of II ADDITIONAL SESSIONS COURT,THODUPUZHA ST 1488/2008 of J.M.F.C., KATTAPPANA ## REVISION PETITIONER/APPELLANT/ACCUSED JAMES ANTONY AGED 47 YEARS,S/O ANTONY, PALATHINKAL HOUSE, NEDUMKANDOM P.O. IDUKKI DIST BY ADV.SRI.S.SACHITHANANDA PAI ## RESPONDENTS/COMPLAINANT & 2ND RESPONDENT: 1. IDUKKI DISTRICT SPICES MARKETING SOCIETY PULIYANMALA, REP. BY ITS SECRETARY, SASIDHARAN, KANDATHIL HOUSE, KATTAPPANA P.O. IDUKKI DIST- 685 508 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM- 682 031 R1 BY ADV. A.C.DEVASIA (BY ORDER) R2 BY PUBLIC PROSECUTOR, SHRI B JAYASURYA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-05-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - **==> picture [178 x 13] intentionally omitted <==** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of May 2018 ## O R D E R The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act'). 2. Heard. 3. The contention of the complainant is that the revision petitioner issued Ext.P1 cheque towards the discharge of an amount of Rs.86,464/- due to the complainant in connection with the purchase of cardamom from the complainant. 4. In the trial, PW1 was examined and Exts.P1 to P6 Crl.R.P. No.839/17 : 2 : were marked for the complainant. Ext.D1 was marked for the revision petitioner. 5. The learned counsel for the revision petitioner has argued that since there is no material before the court to show that the amount covered by Ext.P1 cheque was due as on the date when the cheque was allegedly issued, the conviction and sentence passed by the courts below cannot be sustained. Per contra, the learned counsel for the first respondent, who is the complainant before the trial court, has argued that the complainant had produced Ext.P6 letter which would clearly show that an amount of more than Rs.1,00,000/- was due to the complainant in connection with the purchase of cardamom and in the said circumstances, the conviction and sentence passed by the courts below are justified. 6. PW1 is the Honorary Secretary of the complainant Society. PW1, in his cross-examination, stated that the Crl.R.P. No.839/17 : 3 : revision petitioner had purchased cardamom for more than an amount of Rs.2,00,000/- on 19.1.2018 as per the auction and towards the price, the revision petitioner on the very same day, paid more than Rs.1,00,000/-. For the balance amount, the revision petitioner had given two cheques. The date was written on both the said cheques. In the latter part of the cross-examination of PW1, PW1 stated that Ext.P1 cheque was signed by the revision petitioner in the presence of PW1 on 10.7.2008. It is further in the evidence of PW1 that Ext.P1 cheque was handed over to PW1 by the revision petitioner on 10.7.2008 at the concern of the complainant. Ext.P6 was produced by the complainant to support the evidence of PW1 that the amount was due to the complainant from the revision petitioner. Ext.P6 would show that cardamom was auctioned on 19.1.2008 and an amount of Rs.1,11,714/- was due to the complainant Crl.R.P. No.839/17 : 4 : from the revision petitioner and it was agreed that the said amount would be paid before 31.3.2008. It is further stated in Ext.P6 that in the event of non-payment of the said amount before 31.3.2008, the two cheques entrusted with the complainant by the revision petitioner as per Ext.P6 could be utilised to realise the amount. One of the cheques referred to in Ext.P6 is having the number 519721, which is the number of Ext.P1 cheque. As per Ext.P6, it is clear that the cheque bearing No.519721 was issued on the date of execution of Ext.P6. Even though no date is stated in Ext.P6, the averment in Ext.P6 would make it clear that Ext.P6 was executed prior to 31.3.2008. However, PW1 stated that Ext.P1 cheque was issued only on 10.7.2008. This would show that the evidence of PW1 with regard to the issuance of Ext.P1 cheque is not tallying with Ext.P6 marked through PW1. Therefore, it has to be held that the Crl.R.P. No.839/17 : 5 : evidence of PW1 is not sufficient to prove the execution and handing over of Ext.P1 cheque by the revision petitioner. It is also to be noted that even though the revision petitioner had a contention that no amount was due to the complainant from the revision petitioner, the complainant did not incline to produce the details regarding the transaction between the complainant and the revision petitioner to prove that the amount covered by Ext.P1 cheque was due to the complainant from the revision petitioner as on the date of Ext.P1 cheque. In view of the above evidence, I am of the view that the non-production of the account details relating to the transaction between the revision petitioner with the complainant is fatal in this case. The above view is supported by the decision of this court in M.S. Narayana Menon Alias Mani v. State of Kerala and another [2006 (6) SCC 39]. The amount shown Crl.R.P. No.839/17 : 6 : in Ext.P6 is different from the amount due from the revision petitioner as per the evidence of PW1. There is no evidence to show as to when the balance amount was paid. 7. In this case, the evidence of PW1 that Ext.P1 cheque was executed and issued by the accused on 10.7.2008 cannot be believed in view of Ext.P6, which would show that the said cheque was issued on the date of execution of Ext.P6 itself. Having gone through the relevant inputs, I am satisfied that the evidence of PW1 is not all sufficient to prove the execution of Ext.P1 cheque by the revision petitioner as contemplated under Section 138 of the N.I. Act. There is no other evidence to prove the execution of Ext.P1 cheque. No other evidence was adduced by the complainant to prove that the amount covered by Ext.P1 cheque was due from the revision petitioner. In view of the above reasons, it has to be held that the complainant could not establish that the revision Crl.R.P. No.839/17 : 7 : petitioner committed the offence under Section 138 of N.I. Act. In the said circumstances, the conviction and sentence passed by the courts below under Section 138 of N.I. Act, cannot be sustained and consequently, I set aside the same. In the result, this revision petition stands allowed setting aside the conviction and sentence passed by the courts below under Section 138 of the N.I. Act and the revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged. **sd B.SUDHEENDRA KUMAR, JUDGE** _dl/25.5.18_ _// True copy // PA to Judge_