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2023 Supreme(Online)(KER) 14102
HIGH COURT OF KERALA
P. G. Ajithkumar, J
SHEMI SHAJI, – Appellant
Versus
SREE GOKULAM CHITS AND FINANCE COMPANY PVT.LTD., – Respondent
Crl.Rev.Pet 747 2019
M.B.SANDEEP, R.PRIYA, SHERIN VARGHESE, B.SURJITH, K.P.SREEJA, M.J.KIRANKUMAR
The court reinforced that an unclaimed statutory notice suffices for prosecution under Section 138, highlighting the importance of evidence in cheque execution and consideration.
Headnote:
Cheque - Negotiable Instruments - N.I. Act Section List - The court ruled on matters involving cheque dishonor under Section 138 of the N.I. Act and defined legal enforceability regarding consideration and execution of cheques, confirming the necessity of valid service of notice under Section 142.
Fact of the Case:
The petitioner issued a cheque to settle a debt related to a chitty transaction, which was later dishonored. She claimed misuse of a blank cheque given earlier and raised procedural issues regarding notice and consideration.
Issues: Whether the cheque was properly executed and supported by consideration; validity of the notice served; and whether the cheque could be used for prosecution under Section 138.
Ratio Decidendi: The court emphasized that execution and consideration must be proven, and that the resolution and power of attorney were acceptable forms of documentation to support the complaint.
Final Decision: The revision petition is dismissed.
O R D E R
The petitioner is the accused in S.T.No.198 of 2015 on the files of the Judicial Magistrate of the First Class-II, Thodupuzha. The 1st respondent filed a complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act), upon which the said case arose. The petitioner was convicted and sentenced. She appealed against, but the Additional Sessions Judge-IV, Thodupuzha confirmed the conviction. The sentence was, however, modified. The sentence now is simple imprisonment till the rising of the court and payment of compensation of Rs.1,14,100/-. The petitioner challenges the said conviction and sentence in this Revision Petition filed under Section 397 (1) read with Section 401 of the Code of Criminal Procedure, 1973 (Code).
2. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the 1st respondent and the learned Public Prosecutor.
3. The 1st respondent is a company, mostly involved in financial transactions. Husband of the petitioner was a subscriber to a chitty at the Thodupuzha Branch of the 1st respondent. He prized the chitty and received the prize amount. There occurred default in payment of instalments. A notice, Ext.P6 was therefore issued, in consequence of which the petitioner, who is the wife of the subscriber, reached Muthalakodam Branch of the 1st respondent; to which Branch the file relating to the chitty was said to have been transferred, and issued Ext.P7 cheque dated 11.12.2013 for an amount of Rs.1,14,100/-, the amount found due as on that date. The 1st respondent alleging that when the said cheque was presented for encashment it was returned unpaid and despite notice, the petitioner failed to make the payment, instituted the complaint.
4. At the trial, the defence set up by the petitioner was that a blank signed cheque handed over by her when the husband received the amount of chitty in the year 2007 was misused by the 1st respondent. Her allegation was that the blank cheque was filled by endorsing an amount whimsically. She maintained that Ext.P7 was not supported by consideration and having the debt been barred by the law of limitation, Ext.P7 cheque would not create any legally enforceable debt. Regarding the notice also, she took up a contention that the notice does not satisfy the requirements of Section 142 of the N.I.Act. Yet another contention raised by the petitioner is that interest at the rate of 18% per annum was added by the 1st respondent to the principal and therefore Ext.P7 cannot be used for prosecution under Section 138 of the N.I.Act.
5. PW1 is the power of attorney who instituted the complaint. PW2 was the Manager of Muthalakodam Branch of the 1st respondent-company and PW3 was the custodian of the computer, from which the data for Ext. P4 was retrieved. PW1, representing the 1st respondent and in exercise of the powers conferred on him as per Ext.P1 power of attorney and the resolution of the Board of Directors of the company dated 03.01.2011, an extract of which is Ext.P2, filed the complaint. PW2 deposed before the court that the petitioner executed Ext.P7 cheque before him. PW3 deposed substantiating that Ext.P4 statement of accounts was retrieved from the computer in his custody. Ext.P8 is the dishonour memo dated 02.01.2014 and Ext.P9 is the intimation memo of even date. Ext.P11 is the notice sent to the petitioner, but returned unclaimed. Ext.P10 is its copy and Ext.P10(a) is the postal receipt dated 28.01.2014 for issuance of Ext.P11.
6. The trial court, after considering the aforesaid evidence and also the documents pertaining to the chitty transaction, concluded that the petitioner issued Ext.P7 cheque after due execution and it was supported by sufficient consideration. Further, holding that the prosecution could prove that the cheque was returned for want of sufficient funds in the account of the petitioner and gave her a statutory notice, found the petitioner guilty of the offence under Section 13
