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SREE GOKULAM CHIT AND FINANCE CO.(P) LTD versus P.V.VINODAN, S/O. UNNIAPPAN

High Court of Kerala

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SREE GOKULAM CHIT AND FINANCE CO.(P) LTD v. P.V.VINODAN, S/O. UNNIAPPAN - Crl L P No. 256 of 2007 [2007] RD-KL 10666 (19 June 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl L P No. 256 of 2007()

1. SREE GOKULAM CHIT AND FINANCE CO.(P) LTD
... Petitioner

Vs

1. P.V.VINODAN, S/O. UNNIAPPAN,
... Respondent

2. STATE OF KERALA,

For Petitioner :SRI.K.S.BABU

For Respondent : No Appearance

The Hon'ble MR. Justice K.THANKAPPAN

Dated :19/06/2007

O R D E R

K. Thankappan, J.


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Crl.L.P. No. 256 of 2007
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Dated this the 19th day of June, 2007

O R D E R

The petitioner had filed S.T.No.781/2004 before the Judicial Magistrate of the First Class-IV, Kozhikode under section 138 of the Negotiable Instruments Act on the allegation that the 1st respondent was a subscriber of chits conducted by the petitioner, the chits were prized and he received the amount. The 1st respondent issued Ext.P2 cheque for the balance amount payable in respect of the chits prized by him. When the cheque was presented for encashment, it was dishonoured stating "funds insufficient". On getting intimation of dishonour of cheque and on complying with the formalities, the complaint was filed. When the 1st respondent was questioned under section 313 Cr.P.C., he denied the allegation against him and stated that he joined two chits conducted by the petitioner and received a sum of Rs.59,810 and he repaid Rs.62,756/- and issued two blank cheques and one stamp paper as security at the time of prizing the chits. On the side of the defence, the 1st respondent himself was examined as DW1 and Exts.D1 and D2 were marked. After considering the entire evidence the trial court found that the petitioner failed to prove that Crl.LP 256/2007 2 Ext.P2 cheque issued for the discharge of a legally enforceable debt and hence the 1st respondent was found not guilty for the offence and he was acquitted.

2. Heard.

3. The specific case set up by the petitioner is that the 1st respondent was a subscriber of two chits conducted by him and towards the amount due the 1st respondent issued the cheque. The case of the 1st respondent is that Ext.P2 cheque was issued to the petitioner as security at the time of prizing the chit. The trial court after considering the evidence of PW1 and Exts.D1 and D2 found that the petitioner had failed to prove that Ext.P2 cheque was issued for the discharge of a legally enforceable debt as contemplated under section 138 of the Negotiable Instruments Act. Section 138 of the Negotiable Instruments Act reads as follows:-

"138. Dishonour of cheque for insufficiency, etc. of funds in the account-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years Crl.LP 256/2007 3 or with fine which may extend to twice the amount of the cheque or with both. Provided that nothing contained in this section shall apply unless--

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and

c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation-- For the purpose of this section, "debt or other liability: means a legally enforceable debt or other liability" A reading of the above provision would show that to attract an offence under section 138 of the Act, the burden is on the petitioner to prove that the cheque was issued for the discharge of a legally enforceable debt. It has come out in evidence that Ext.P2 cheque was not issued for the discharge of a legally enforceable liability. The trial court found that there was no document produced by the petitioner to prove that a sum of Rs.47,205 was due. Crl.LP 256/2007 4

4. In the above circumstances, this Court is of the view that the finding entered by the trial court is correct and it requires any interference by this Court. Hence, leave to appeal is rejected. K. Thankappan, Judge. mn. Crl.LP 256/2007 5

K.Thankappan,J.


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Crl.l.P.No. /200
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ORDER


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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