Issuing a cheque for a barred debt does not exempt the drawer from liability under Section 138 of the Negotiable Instruments Act.

JUDGMENT

This appeal with leave is filed by the complainant in C.C.305/98 on the file of the Judicial First Class Magistrate's Court, Payyannur assailing the acquittal of the first respondent of offence punishable under Section 138 of the N.I. Act vide Section 255 (1) of the Cr.P.C.

2. The appellant filed complaint in the court below alleging that the first respondent borrowed from him an amount of Rs.25,000/- on 05/03/98 on condition that it would be repaid on 18/03/98; that on 18/03/98 the first respondent issued Ext.P1 cheque drawn at the Karivellur branch of the Syndicate Bank for an amount of Rs.25,000/- in discharge of the said debt; that on presentation of the cheque for encashment at the drawee bank on 19/03/98, it was returned dishonoured vide Ext.P2 memorandum for reason of “insufficiency of funds” in the account of the first respondent; that consequently, on 27/03/98 the original of Ext.P3 notice was caused to be issued through lawyer to the first respondent intimating him of the dishonour of the cheque and demanding payment of the amounts covered by the cheque; that the said notice was received by the first respondent under Ext.P3(b) acknowledgment card, but he has not cared to make payment of the amounts covered by the cheque either within the statutory period or ever thereafter and thus, he has committed an offence punishable under Section 138 of the N.I. Act.

3. On appearance of the first respondent in the court below pursuant to issuance of summons, he was questioned by the learned Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently a trial of the case was conducted by the court below.

The appellant/complainant tendered evidence as PW1 and got marked Exts.P1 to P3(b). On the appellant/complainant closing his evidence, the first respondent was questioned by the learned Magistrate under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he did not adduce any evidence in defence.

4. The learned Magistrate considered the case in the light of the evidence adduced as aforesaid; found on the testimony of appellant as PW1 that the transaction took place in 1991 whereas the cheque was issued on 18/03/98; that the cheque was therefore, being issued in discharge of a barred debt; and that therefore, the first respondent is not liable to be convicted for offence under Section 138 of the N.I. Act by reason of explanation to of the N.I. Act as has been held by this Court in Joseph v. Devassia ( 2000 (3) KLT 533 ). Consequently, he acquitted the first respondent of offence punishable under of the N.I. Act vide Section 255 (1) of the Cr.P.C.

5. It is contended before me by the learned counsel for the appellant that the decision relied on by the court below for acquittal of the accused namely the decision of this Court in Joseph's case (cited supra) is no longer good law in view of the subsequent Division Bench decision of this Court in Ramakrishnan v. Parthasaradhy ( 2003(2) KLT 613 ); and that therefore, the appeal deserves to be allowed.

6. The learned counsel for the respondent advanced arguments upholding the decision of this Court that in view of the explanation to Section 138 of the N.I. Act, if a cheque is issued in discharge of a barred debt that will not attract the penal provision under Section

138 of the N.I. Act though it may be that amount due under the cheque can be recovered resorting to civil remedies. Though it appears that the argument is sound and appealing, it cannot be upheld for the reason that such contentions stand concluded by the Division Bench decision of this Court in Ramakrishnan's case aforesaid which was a decision rendered on reference made by a Single Judge doubting the correctness of the decision in Joseph's case.

7. In the circumstances, in view of the decision of this Court in Ramakrishnan's case (cit