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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SOPHY THOMAS, J.
P.M. Moidu S/o Mammmunhi – Petitioner
Versus
Abdulla K.M. S/o Mohammed – Respondent
Crl. Rev. Pet No. 4017 of 2009
Decided On : 15-11-2023
Fact of the Case:
The accused was convicted under Section 138 of the Negotiable Instruments Act for dishonoring a cheque. The complainant alleged that the accused issued a cheque towards discharge of a debt, but the accused denied any transaction and claimed the cheque was from a lost book.Finding of the Court:
The court found that there was no legally enforceable debt due to the complainant and that the accused had lost his cheque book, leading to the issuance of the disputed cheque. The court held that the complainant failed to prove a genuine transaction, thus acquitting the accused.Issues:
Whether there was a legally enforceable debt and if the accused's actions constituted an offense under Section 138 of the NI Act.Ratio Decidendi:
The court emphasized that for an offense under Section 138, there must have been a subsisting account with the bank at the time of issuing or presenting the cheque. It also highlighted that when execution is denied, it is onus on complainant to prove due execution.Final Decision:
The court acquitted the accused, finding him not guilty of an offense under Section 138 of the NI Act.ORDER :
1. This revision is at the instance of the accused in C.C. No. 44 of 2008 on the file of Judicial First Class Magistrate-II (Additional Munsiff), Kasaragod, assailing the judgment in Crl. Appeal No. 275 of 2008 on the file of Sessions Court, Kasaragod, which upheld his conviction under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’), though the substantive sentence was reduced to simple imprisonment for one month, while retaining the compensation part and its default sentence.
2. C.C. No. 44 of 2008 was based on a private complaint filed by the complainant/1st respondent, alleging dishonour of Ext.P1 cheque dated 29.08.2007 alleged to have been issued by the revision petitioner towards discharge of an amount of Rs. 96,000/-. He presented the cheque for collection. But it was returned dishonoured stating reason “payment stopped by the drawer and account closed.” The complainant/1st respondent sent lawyer notice to the revision petitioner, to which he sent a reply, but no amount was paid. So he preferred the complaint under Section 138 of the NI Act.
3. On appearance of the revision petitioner before the trial court, particulars of offence was read over and explained, to which he pleaded not guilty. Thereupon PWs. 1 and 2 were examined and Exts.P1 to P7 were marked by the complainant/1st respondent. On closure of evidence, the revision petitioner was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record, and stated that he was having acquaintance with the complainant/1st respondent for about 15 years, and the complainant used to visit his house. In the year 1997, he lost his cheque book and Ext.P1 cheque bearing No. 2249 is one among the cheque leaves in the cheque book lost. Immediately, he informed the bank and gave a stop payment letter, and the account was closed in the year 1997 itself. From the cheque book lost, except Ext.P1 cheque, no other cheques were seen presented by anybody before the bank so far. He came to know about possession of Ext.P1 cheque by the complainant only when he received the lawyer notice. That cheque was never issued towards discharge of any legally enforceable debt, and he never filled up that cheque in favour of the 1st respondent/complainant.
4. DW-1 was examined and Ext.D1 reply notice was marked, as defence evidence from the part of the revision petitioner.
5. On appreciating the facts and evidence and on hearing the rival contentions, the trial court found the revision petitioner guilty under Section 138 of the NI Act and he was convicted and sentenced to undergo simple imprisonment for three months and to pay compensation of Rs. 96,000/- with a default sentence of simple imprisonment for a further period of one month.
6. Aggrieved by the conviction and sentence, the revision petitioner filed Crl. Appeal No. 275 of 2008, and the appellate court, on re-appreciation of the facts and evidence, found that there was no reason to interfere with the conviction under Section 138 of the NI Act and upheld the same. But the substantive sentence was modified and reduced to simple imprisonment for one month, without altering the compensation part and its default sentence.
7. Now this Court is called upon to verify the legality, propriety and correctness of the impugned judgment of conviction and sentence imposed on the revision petitioner.
8. Heard learned counsel for the revision petitioner and learned counsel for the 1st respondent.
9. The main contention taken up by learned counsel for the revision petitioner is that there was no transaction between the revision petitioner and the 1st respondent, and Ext.P1 cheque was not supported by any consideration. There was no legally enforceable debt due from him, towards the 1st respondent/complainant. In order to substantiate that fact, learned counsel for the revision petitioner drew the attention of this Court to the averments in the complaint. The complaint starts with the
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