K. Devan v. P. Krishnamoorthy and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: B. Sudheendra Kumar
Judgment Date: 2018-10-22
Court Decision / Holding: Appeal dismissed; the High Court upheld the acquittal and found no merit in the appellant’s case.
Final Disposition: Appeal dismissed.

Parties to the Case

Appellants / Petitioners

K. Devan, s/o Raman, Kalathukundil Veedu, Vaniyamkulam, Ottappalam Taluk

Respondents

P. Krishnamoorthy, s/o Paraman Chettiayr, Vaniyamkulam Angadi, P.O. Vaniyamkulam, Ottappalam Taluk
State of Kerala rep. by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• D. Feroze (Amicus Curiae)

Counsels for Respondents

• Smt. A.R. Pravitha
• Sri K. Mohanakannan
• Sri E C Bineesh (Public Prosecutor)

Case Synopsis & Summary

This criminal appeal, CRL.A.No.1670 of 2006, is filed by the complainant in ST No.2455/2003 challenging an acquittal under section 255(1) Cr.P.C. in a case under section 138 of the Negotiable Instruments Act. The trial court, on 27 April 2006, acquitted the accused, and the appellant contends that the accused issued Ext. P1 cheque to discharge an amount due to him after borrowing Rs.48,000 from Kalathukundil Finance. PW1, the appellant, testified to the loan and the issuance of Ext. P1 in discharge of that liability. The accused denied the loan and claimed Ext. D3 (a passbook) was fabricated, with DW1 asserting that PW1 wrote Ext. D3 in his presence. The prosecution failed to produce documents linking Ext. P1 to the alleged borrowing from Kalathukundil Finance, and the appellant did not produce any transaction documents to prove the alleged loan. The amicus curiae, D. Feroze, was appointed to assist the court. The High Court relied on the Supreme Court decision in M.S. Narayana Menon to note that where account books are not produced, a claim that a cheque was issued as security could be believed, potentially leading to an acquittal. After considering the inputs, the court found no reason to interfere with the trial court, and the appeal was dismissed.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 255(1) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submits that Ext. P1 was issued by the accused in discharge of a debt allegedly borrowed from Kalathukundil Finance; PW1 testified to the loan and the cheque; however, no corroborative documents connecting Ext. P1 to the transaction were produced, and Ext. D3’s credibility is disputed by DW1. The appellant contends that the non-production of account books as in M.S. Narayana Menon v. State of Kerala (2006) supports the claim that the cheque was given to secure another transaction, justifying a conviction if properly proven but lacking evidence here.

Contentions of Respondents

The respondents contended that the link between Ext. P1 and any debt with Kalathukundil Finance was not established; DW1 testified that the passbook (Ext. D3) was prepared by PW1; there was no independent documentary proof produced to corroborate the loan; hence the suit fails to prove the essential transaction behind the cheque, justifying the acquittal.

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	Cited to support the principle that absence of account books linking the cheque to the transaction can lead to disbelief of the prosecution’s case and potential acquittal; applied to uphold the trial court’s finding.

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** **MONDAY ,THE 22ND DAY OF OCTOBER 2018 / 30TH ASWINA, 1940** ## **CRL.A.No. 1670 of 2006** **AGAINST THE ORDER/JUDGMENT IN ST 2453/2003 of J.M.F.C., OTTAPPALAM DATED 27-04-2006** ## **APPELLANT/S:** **K.DEVAN,S/o.RAMAN, KALATHUKUNDIL VEEDU, VANIYAMKULAM, OTTAPPALAM TALUK.** **BY ADV.SRI.D.FEROZE, AMICUS CURIAE** ## **RESPONDENT/S:** |**1**|**P.KRISHNAMOORTHY,**| |---|---| ||**S/O.PARAMAN CHETTIYAR, VANIYAMKULAM ANGADI,**| ||**P.O. VANIYAMKULAM, OTTAPPALAM TALUK.**| |**2**|**STATE OF KERALA REP.BY**| ||**PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA.**| ||**R1 BY ADVS.**| ||**SMT.A.R.PRAVITHA**| ||**SRI.K.MOHANAKANNAN**| **R2 BY SRI. E C BINEESH-PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **CRL.A.No. 1670 of 2006** -2- ## **JUDGMENT** **The appellant is the complainant in S.T.No.2455/2003 on the files of the court below. The appellant filed a complaint against the first respondent herein before the court below alleging offence under Section 138 of the Negotiable Instruments Act (in short, 'the N.I.Act'). The court below as per judgment dated 27.4.2006 acquitted the accused under Section 255(1) Cr.P.C., against which this appeal has been filed after obtaining special leave from this Court.** **2. Since there is no representation for the appellant, this Court has appointed** **CRL.A.No. 1670 of 2006** -3- **Advocate D.Firoze as Amicus Curiae to argue the appeal for the appellant.** **3. Heard the learned Amicus Curiae, the learned counsel for the first respondent and the learned Public Prosecutor.** **4. The contention of the appellant is that towards the discharge of the amount due to the appellant, the accused issued Ext.P1 cheque to the appellant. The appellant himself got examined as PW1. PW1 stated that the accused borrowed an amount of Rs.48,000/- on 6.1.2003 from Kalathukundil Finance belonging to the appellant and towards the discharge of the said liability, the accused issued Ext.P1 cheque.** **5. The accused had a contention that the** ## **CRL.A.No. 1670 of 2006** **accused did not borrow any amount from the complainant as stated by PW1 and that a cheque issued by the accused, at the time when the accused collected the amount in a chit conducted by the complainant, had been misutilized by the complainant to file the present complaint. In order to prove the case of the accused, the accused himself got examined as DW1. DW1 stated that Ext.D3 is the passbook issued by PW1. DW1 further stated that everything in Ext.D3 was written by PW1. PW1 denied the same. However, DW1 firmly stated that PW1 had written everything in Ext.D3 in the presence of DW1. Admittedly, PW1 is running a business concern under the name and style Kalathundil** ## **CRL.A.No. 1670 of 2006** **Finance. As per the evidence of PW1, the accused borrowed the amount from the said** **institution. Therefore, the documents pertaining to the said transaction must be available with the said institution. In the said circumstances, the complainant should have produced the documents pertaining to the transaction before the court to prove that Ext.P1 cheque was issued in connection with the borrowing of the amount by the accused from Kalathundil Finance.** **6. The learned Amicus Curiae has submitted that since there is nothing to connect Ext.D3 with the complainant, Ext.D3 cannot be acted upon. It is true that there is no evidence connecting Ext.D3 with the** ## **CRL.A.No. 1670 of 2006** -6- **complainant except the evidence of DW1. DW1 stated that Ext.D3 was written by PW1 in the presence of DW1. Even though the accused had taken such a contention, the complainant did not incline to produce any document pertaining to the transaction involved in this case to show that the accused had executed Ext.P1 cheque as stated by PW1.** **7. The Apex Court in M.S.Narayana Menon Alias Mani v. State of Kerala and Another [(2006) 6 SCC 39] held that in case of dishonour of a cheque alleged to have been issued towards outstanding dues in business dealing, if the account books are not produced by the complainant, the contention of the accused that the cheque** ## **CRL.A.No. 1670 of 2006** -7- **was issued as security can be believed and the conviction can be set aside.** **8. In this case, even though the accused had a contention that the accused issued the cheque in question as security in connection with another transaction, the complainant did not incline to produce any document pertaining to the transaction involved in this case. In the said circumstances, the court below correctly found that the complainant could not establish the transaction involved in this case.** **9. Having gone through the relevant inputs, I find no reason to interfere with the judgment of the court below acquitting the accused. In the said circumstances, I** **CRL.A.No. 1670 of 2006** -8- **find no merit in this appeal and accordingly, this appeal stands dismissed.** Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//