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KERALA HIGH COURT
K. Ramakrishnan, J.
C.V. Rajan —Petitioner
versus
Illikkal Ramesan & Anr. —Respondents
Crl. R. P.No.1254 of 2003
Decided on 25.2.2015
Held: The case of the complainant in the complaint was that, the revision petitioner had obtained 2,30,000/- from him on promising to obtain a clerk job in B.E.M. School and since he could not fulfil the promise and when the amount was demanded, he had issued Ext.P1 cheque and the cheque when presented was dishonoured and in spite of notice issued he had not paid the amount. Though a contention was taken in the lower court that, the notice was issued beyond time on perusal of the postal receipt later produced, it was seen that it was sent in time, so that contention is not available. It is true that, in the complaint it was mentioned that, the amount was paid on the promise of procuring a job and when he could not fulfil the promise, on demand the cheque was issued. It may be mentioned here, though a person had obtained money for doing certain thing which he may know that he may not be able to fulfil the same, the innocent persons who were giving money on the basis of that promise cannot be blamed. Further law does not prohibit a person repaying the amount which he obtained on some illegal promise. So when the cheque was issued for repayment of that amount which he wanted to pay and it was issued in discharge of the amount received by him on making some false promise cannot be said to be an unenforcible debt, as law does not prohibit a person returning the amount which he obtained by illegal means. Once that cheque is issued, in discharge of the amount which he had obtained illegally, law does not prohibit prosecuting him for an offence under Section 138 of the Negotiable Instruments Act, if other conditions are satisfied. So the submission made by the counsel for the revision petitioner that, the cheque was not issued in discharge of a legally enforcible debt, cannot be accepted. (Para 7)
(ii) Negotiable Instruments Act, 1881 — Section 138 — Prosecution for dishonour of cheque — Conviction by Courts below — Revision — Name of bank mentioned in notice was wrong — Petition-accused had no case that he was not having any account in bank in which cheque was issued or that he had any other transaction with complainant in respect of which some other cheque was given — Amount and date of cheque were correctly mentioned — No plea of any prejudice caused on account of such mistake was prosecuted — Conviction could not be disturbed. (Paras 8 to 13)
(iii) Negotiable Instruments Act, 1881 — Section 138 — Prosecution for dishonour of cheque — Sentence — Cheque for Rs.2,30,000/- dt. 30.3.1996 was dishonoured — Trial Court on conviction awarded sentence of a months and compensation of Rs.one lac to complainant with default sentence — Sessions Court upheld conviction and sentence in appeal — Revision — Offence is basically of civil nature and intention of legislature was to make drawer of cheque to pay the amount — Ends of justice would be served if petitioner was awarded sentence of imprisonment till rising of Court and to pay the cheque amount to complainant with default sentence. (Para 15)
Result: Revision disposed of accordingly.
K. Ramakrishnan, J.—Accused in S.T.No.1169/1996 on the file of the Judicial First Class Magistrate Court, Nadapuram, is the revision petitioner herein. The case was taken on file on the basis of a private complaint, filed by the complainant/ first respondent against the petitioner alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called ‘the Act’).
2. The case of the complainant in the complaint was that, the revision petitioner obtained an amount of 2,30,000/- on the promise of obtaining a job of clerk in B.E.M. School and when he realised that he was not able to fulfil the promise, on demand, he had issued Ext.P1 cheque dated 30.03.1996, on 25.03.1996 to the complainant in discharge of that liability and the cheque when presented was dishonoured for the reason ‘funds insufficient’ vide Ext.P2 dishonour memo, and the complainant issued Ext.P4 notice vide Ext.P9 postal receipt and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. He had sent Ext.P6 reply denying the allegations. Exts.P7 and P3 are the ledger extracts and Ext.P8 is the memo issued from the bank intimating the dishonour to the complainant. The revision petitioner had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.
3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW2 and the bank managers of the drawee bank and collecting bank were examined as PWs 1 and 3 and Exts.P1 to P9 were marked on his side. After closure of the complainant’s evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant’s evidence. He had further stated that, there was no transaction between himself and the revision petitioner and he had not issued any cheque to the revision petitioner and the cheque given to one Navaneeth Krishnan, was some how obtained by the complainant by one Balan Nair and misusing that cheque and the present complaint was filed. In order to prove his case, DWs 1 and 2 were examined and Ext. D1 was marked. After considering the evidence on record, the court below found that the revision petitioner had committed the offence punishable under Section 138 of the Negotiable Instruments Act and convicted him thereunder and sentenced him to undergo simple imprisonment for 9 months and also to pay a sum of 1,00,000/- as compensation to the complainant, in default to undergo simple imprisonment for three months under Section 357(3) of the Code of Criminal Procedure. Aggrieved by the same, he filed Crl.Appeal No.4/2000 before the Sessions Court, Kozhikode, which was made over to First Additional Sessions Court, Kozhikode, for disposal and the learned Additional Sessions Judge by the impugned judgment dismissed the appeal. Aggrieved by the same, the present revision has been filed by the revision petitioner/ accused before the court below. In spite of notice issued first respondent did not appear.
4. Heard the counsel for the revision petitioner and learned Public Prosecutor.
5. The counsel for the revision petitioner submitted that, for return the amount for which the cheque was given, was said to have been obtained for providing a job and since it was not given for an illegal purpose, it cannot be said to be issued in discharge of an enforcible debt and so the action under Section 138 of the Negotiable Instruments Act is not attracted. Further, the notice issued is not proper and the name of the bank shown is not correct and on that ground also, the complaint is not maintainable. He had relied on the decision reported in Aniyan Thomas Chacko v. Tevarvelil Bankers, 2006(4) KLT 245 in support of h
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