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2015 (6) TMI 1076 - KERALA HIGH COURT

2015 (6) TMI 1076 - KERALA HIGH COURT - TMI - Order of acquittal - discharge the onus to get the benefit of the presumption available under Section 139 of the N.I. Act - Held that:- Evidently, the first respondent/accused has denied the execution of a cheque for discharging any legally enforceable debt in favour of the appellant. During the cross examination PW1 deposed that Ext.P1 was produced before him after writing and putting signature, thereon. At the same time, he would state that he was .....

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t did not have a case that he had produced any such documents. It was considering all such relevant aspects that the trial court found that the appellant had failed to discharge the onus to get the benefit of the presumption available under Section 139 of the N.I. Act. In view of the aforesaid circumstances, I am of the considered view that the appellant had failed to make out a prima facie case warranting any interference with the order of acquittal. The presumption even otherwise available in .....

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NANT: BY ADVS.SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO RESPONDENTS: R1 BY ADV. SRI.K.R.MOHANAN R1 BY ADV. SRI.K.M.SANAL R2 BY PUBLIC PROSECUTOR SMT.P.MAYA C.T. RAVIKUMAR, J. JUDGMENT This appeal is directed against the order of acquittal passed by the Court of Judicial First Class Magistrate-VII, Ernakulam in C.C.No.553 of 2010. The appellant herein was the complainant therein and the first respondent herein was the accused. The appellant filed a complaint which was taken on file and registe .....

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05 drawn on Catholic Syrian Bank Ltd., Ponnurunni Branch for 30,312/-. When Ext.P1 cheque ₹ was presented for encashment it was dishonoured owing to the reason account closed'. The appellant issued Ext.P3 lawyer notice dated 21.5.2005 intimating him of the dishonour of the cheque and also calling upon him to pay the amount due. Despite the receipt of Ext.P3 notice the accused did not respond to the same or paid the amount within the statutorily permissible time. In fact, it was with su .....

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nder Section 313, Cr.P.C.. He denied all the incriminating circumstances put to him. However, the accused did not adduce any evidence in defence. After appreciating the evidence on record the learned Magistrate found that the appellant/complainant has failed to prove the transaction and the due execution of the cheque. Consequently, the accused was found not guilty of the charge under Section 138, N.I. Act and he was acquitted under Section 255(1), Cr.P.C. Hence, this appeal. 2. I have heard the .....

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rial court found that the appellant did not produce any document to show that he is the proprietor of Tripunithura Cement Centre'. The specific case of the appellant herein was that the accused/first respondent used to purchase the goods on credit basis from Tripunithura Cement Centre' and it was in part payment of the price of goods purchased from there that Ext.P1 cheque was issued. In such circumstances, I do not find any infirmity in the conclusion arrived at by the court below that .....

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he cheque. In short, the appellant has failed to show that he was the payee of the cheque. PW1 had also deposed to the effect that he was an assessee of income tax and also claimed possession of documents revealing the fact that the accused/first respondent used to purchase goods from Tripunithura Cement Centre' on credit basis. Nonetheless, no documents to establish the aforesaid aspects were produced. The appellant did not dispute the said position. When the specific case of the appellant .....

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f draw down, as well. When the admitted position is that he has failed to produce any such documents to establish those facts I am of the view that the court below has arrived at only the irresistible and inevitable conclusion from the evidence on record. It is the appreciation of the aforesaid circumstances obtained from the evidence on record that constrained the trial court to arrive at the finding that the appellant had failed to prove that Ext.P1 cheque was issued in discharge of a legally .....

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