IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN SATURDAY, THE 3RD DAY OF DECEMBER 2011/12TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 238 of 2005 (D) ------------------------------- CRA.467/2003 of ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR CC.255/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT - I, CHALAKUDY REVISION PETITIONER(S)/APPELLANT/ACCUSED:: ----------------------------------------- T.A. BABU, AGED 37 YEARS,, THARAYIL HOUSE, KIZHAKKE CHALAKUDY VILLAGE THRISSUR DISTRICT. BY ADVS.SRI.K.DIVAKARAN SRI.RIJO.M.S SMT.M.R.REENA COMPLAINANT(S)/COMPLAINANT & STATE:: ------------------------------------ 1. REJIMOL JOHN, NJARAKADAN HOUSE, VIKAS HIRE PURCHASE COMPANY (P) LTD. KADICHENE COMPLEX, CHALAKUDY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: LSN CR P.S. GOPINATHAN, J. - - - - - - - - - - - - - - - - - - - Crl.R.P. NO.238 OF 2005 - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2011 O R D E R The revision petitioner was convicted by the Judicial Magistrate of the First Class, Chalakudy, in C.C. No.255/2000 for offence under Section 138 of the Negotiable Instruments Act and sentenced to imprisonment till the rising of the Court and a fine of ` 8,500/-(Rupees eight thousand five hundred only). Though he preferred criminal appeal No.467/2003, he was not successful. 2. Appellate Court set aside the fine on holding that Judicial Magistrate of the First Class has no power to impose fine exceeding ` 5,000/-. Instead of fine, the revision petitioner was directed to pay ` 8,500 as compensation. 3. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal this revision petition is filed. Crl.R.P.No.238/2005 -2- 4. I have heard Adv. Smt. M.R. Reena, the learned counsel for the revision petitioner and Adv. Sri. Ravi K. Pariyarath, learned counsel appearing for the first respondent. Perused the impugned judgment and evidence on record. 5. The case of the first respondent is that the revision petitioner owed a sum of Rs. 18,945/- to the first respondent for the discharge of which Ext. P4 cheque was issued and that when Ext. P4 was sent for collection it was returned dishonoured for insufficient funds and despite the notice, the liability was not discharged. 6. Consistent case of the revision petitioner is that the liability arose out of hire purchase agreement whereby, one V.M. Rasheed had availed a loan for purchase of a Television set. The revision petitioner and one Abdul Karim were guarantors. At the time of execution of the hypothication agreement, the first respondent had obtained ten blank cheques. According to the revision petitioner, he Crl.R.P.No.238/2005 -3- owed no amount to the first respondent but, misusing the blank cheque prosecution was launched. The power of attorney holder of the first respondent, who was examined as PW1 had admitted hire purchase transaction pursuant to which the liability arose. It is also admitted by PW1 that basing upon the very same transaction, a suit as O.S.No.333/2000 was also filed before the Munsiff Court, Chalakudy. Ext. D1 is the decree in that case. PW1 had admitted that the civil Court had arrived at a finding that only a sum of ` 8,000 was due. Ext. D1 decree would show that, accordingly, the suit was decreed only for ` 8,246/- (Rupees eight thousand two hundred and fourty six only). In fact the courts below had taken note of the decree and compensation was ordered limiting to the liability covered by Ext. D1 decree. 7. The courts below omitted to note that by Ext. D1 decree, which was not challenged in appeal and thus become final, the existing liability was conclusively Crl.R.P.No.238/2005 -4- determined at ` 8,000/-. Whereas Ext. P4 cheque is for ` 18,945/-. Therefore, there is no existing liability for the amount covered by Ext. P4 cheque. 8. Section 138 of the Negotiable Instruments Act would show that the cheque should have been in discharge of existing liability. A reading of Section 138 would be relevant: Section 138--Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of Crl.R.P.No.238/2005 -5- the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.--For the purpose of this Section,”debt or other liability” means a legally enforceable debt or other liability. The above provision with explanation makes it crystal clear that to make out offence under Section 138, the cheque should have been issue to discharge, in whole or in part, of any debt or other liability legally enforceable. Suppose the cheque is for higher amount prosecution is not sustainable. Ext. D1 decree would show that legally enforceable debt was only Rs. 8,000/-. It appears that the blank cheque obtained at the time of hire purchase was filled up with higher amount than due and prosecution was launched. Therefore, the prosecution is not at all sustainable. The conviction and sentence under challenge are liable to be interfered and set aside in revision. Crl.R.P.No.238/2005 -6- In the result, the revision petition is allowed, while setting aside the conviction and sentence impugned, the revision petitioner would stand acquitted. P.S.GOPINATHAN, JUDGE. ds