Sunday 15 December 2013

Whether court should draw adverse inference if accused in cheque dishonour case not giving reply to notice?


Further, it is noticed that the accused was issued

with a statutory notice. If he had not actually issued the cheque,


he would have responded immediately. Instead, he kept silent.


It was the above facts, which persuaded the courts below to


come to the conclusion that the offence has been established.


The findings are based on evidence on record and no reasons are





made out to interfere with the findings.1
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                    PRESENT:

                           THE HONOURABLE MR.JUSTICE P.BHAVADASAN

               WEDNESDAY, THE 25TH DAY OF JANUARY 2012/5TH MAGHA 1933

                                      CRRP.No. 243 of 2012
                                      ------------------------------
                  

             M.P.PRAKASHAN,
             
v
          1. M.SASI,
             


          2. STATE OF KERALA,
             








                    P. BHAVADASAN, J.
            ---------------------------------------
                Cr. R.P. NO : 243 of 2012
            ----------------------------------------
            Dated this the 25th day of January, 2012

                    Citation; 2013 (4) Crimes 473 (kerala)



          The   accused    was   prosecuted     for the    offence

punishable under Section 138 of the Negotiable Instruments Act.

He was found guilty and was therefore, convicted and sentenced

to suffer simple imprisonment for six months.       He was also

directed to pay a sum of Rs. 75,000/- as compensation, in

default of payment of which he had to suffer               simple

imprisonment for three months. In appeal the sentence was

modified to one of simple imprisonment      till the rising of the

court and to pay a compensation of Rs. 75,000/- in default of

payment of which, he has to suffer simple imprisonment for one

month.

          2. According to the complainant, the accused was very

familiar to him. He had given a sum of Rs. 75,000/- on

24.05.2005 to the accused. In repayment of the said liability,

Exhibit P1 cheque was issued to him which, on presentation,




bounced for want of funds in the account of the accused. To the

statutory notice issued by the complainant, there was no

response and the amount was not paid. So complaint was laid.

            3. Cognizance of the offence was taken by the trial

court and a summons was issued to the accused. On appearance

of the accused, the particulars of the offence were read out to

him to which he pleaded not guilty and claimed to be tried.

Complainant was examined as PW1 and Exhibits P1-P5 were

marked. After the close of the evidence of the complainant, the

accused was questioned under Section 313 of Cr.PC in which he

denied all the incriminating circumstances brought out in

evidence against him and maintained that he is innocent but

chose to adduce no evidence.

            4. On an appreciation of the evidence, the trial court

came to a conclusion that the offfence has been made out and

convicted and sentenced the accused as already mentioned. In

appeal, sentence was modified.

            5. The learned counsel appearing for the revision

petitioner pointed out that there is no evidence to prove as to





when the cheque has been executed by the accused and without

proof of the same the offence cannot be said to have been

proved.

            6. The complainant has spoken to as PW1. He has

stated that an amount of Rs.75,000/- was borrowed by the

accused from him on 24.05.2005 and the accused on demand,

had issued Exhibit P1 cheque for repayment of the same. The

further case of the complaint is that the cheque on presentation

bounced. Infact, the accused has no definite stand regarding the

issuance of the cheque except for denying the circumstances put

to him. He did not set up any specific defence at all. The courts

below, therefore,     accepted   the evidence of PW1 to reach a

conclusion.

            7. Further, it is noticed that the accused was issued

with a statutory notice. If he had not actually issued the cheque,

he would have responded immediately. Instead, he kept silent.

It was the above facts, which persuaded the courts below to

come to the conclusion that the offence has been established.

The findings are based on evidence on record and no reasons are





made out to interfere with the findings.

            8. Faced with the above situation, the learned counsel

appearing for the revision petitioner prayed for some time to pay

the compensation amount as awarded by the lower appellate

court.

            9. Considering the nature of the offence and also the

willingness expressed by the    petitioner to pay the amount, it is

felt that some time can be granted to the complainant to pay for

the compensation amount as awarded by the lower appellate

court.

            10. In the result, while confirming the conviction of the

evidence as awarded by the lower appellate court, the revision

petitioner is granted 3 months time to pay the compensation

amount as awarded by the lower appellate court failing which,

the default clause as ordered by the lower appellate court shall

take effect.




                                   P. BHAVADASAN
                                          JUDGE.

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