IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 CRL.A.No. 2047 of 2010() ------------------------ CC.214/2004 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,ETTUMANUR .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ N.P.THOMAS, AGED 50 YEARS, S/O.N.T.PAUL, PROPRIETOR, N.T.P. CORPORATION, ETTUMANOOR. BY ADV. SRI.JOSE PALLATTUKARAN RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. PUSHPALATHA,W/O.VIDYANANDA PAI, DEVASWAM PARAMBU, PAZHAYA THIRUMALA WARD, EAST OF VALIYAKULAM, ALAPPUZHA. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE FOR R1 SRI.P.M.RAFIQ FOR R1 SRI.K.S.SIVAKUMAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.2047 of 2010 ----------------------------------------------- Dated 29th October, 2010. O R D E R This appeal arises from an order of acquittal. 2. The appellant filed a complaint against the first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. As per the allegations in the complaint, the accused owed Rs.60,000/- to the complainant and he issued a cheque for discharge of the said amount in favour of the complainant. The cheque, on presentation was dishonoured and statutory notice was issued to the accused. He did not send any reply and hence, the complaint was filed. 3. To prove the prosecution case, the complainant examined PW1 and PW2 and marked Exts.P1 to P8. On the side of the accused, DW1 to DW5 were examined and Exts.D1 to D3 were marked. The trial court found that the cheque was not executed voluntarily and that the complainant has not proved that the cheque was issued voluntarily. Hence, none of the presumptions under the Negotiable Instruments Act are available to the complainant, it is further held. It is also observed that there is lack of evidence that there is legally Crl.Appeal No.2047/10 2 enforceable debt or liability. 4. Learned counsel for appellant argued that the accused's husband owed some money to the complainant. He was an employee of the complainant and in respect of such liability, there was a settlement. When the matter was settled, Ext.P1 cheque was issued by the accused voluntarily. The fact that the amount is due cannot be disputed. The findings of the court that it is not issued voluntarily is not correct, it is submitted. 5. Learned counsel for 1st respondent argued that the complainant has failed to prove that the accused owed any money to the complainant and hence, offence under Section 138 of the Negotiable Instruments Act will not be attracted. It is also pointed out that though the complainant would allege that the accused's husband owed some money to him, there was a criminal case in respect of such alleged transaction. The accused's husband was acquitted in the said case and the revision also was disposed of in his favour. Therefore, there is no ground to interfere in the order of acquittal, it is submitted. Crl.Appeal No.2047/10 3 6. On hearing both sides and on going through the order under challenge, I find that the specific allegation in the complaint as well as in the affidavit filed in lieu of chief examination is that the accused herself owed the money to the complainant. She was personally liable to pay the amount to the complainant. It was a case where the complainant put forward a specific plea that the accused herself has indebted to the complainant an amount of Rs.60,000/-. But, the accused disputed this fact and contended that the cheque (Ext.P1) was procured from the accused, after filing a criminal complaint against the accused, making false allegations against him that some amount is due to him. The trial court considered these aspects and in paragraph 8 of the judgment. It was held thus : “In the complaint as well as in the chief examination it is stated that accused issued a cheque for the discharge of a debt due to the complainant. However in cross examination PW1 stated that the accused issued Ext.P1 cheque for discharging the liability of her husband towards the complainant, which liability arose when the husband committed misappropriation in the establishment of the complainant. Offence under S.138 N.I. Act applies in cases Crl.Appeal No.2047/10 4 where the cheque is issued for the discharge of a debt or liability of another person also. Hence the aspect that the above fact is not pleaded in the complaint is not of much significance.” 7. It was also held in paragraph 10, referring to the case instituted by the complainant against the accused's husband, as follows : “In short husband of the accused was acquitted by the criminal court on the allegation of the complainant that he had committed theft of money belonging to the complainant in his establishment. Revision filed against the acquittal was also dismissed.” 8. From the above facts itself, it will be evident that the allegation made in the complainant is contrary to what the complainant spoke while examining in court. Though the complainant put forward a case originally that the accused herself owed Rs.60,000/- to the complainant, he gave up this allegation and gave evidence in cross examination admitting that the accused's husband owed money and the cheque was executed by the accused on his behalf. In paragraph 12, the court has considered the matter in detail, as follows : Crl.Appeal No.2047/10 5 “Presumptions which are available to the complainant under the the Negotiable Instruments Act would come into the aid of the complainant only if it is proved that the cheque was executed voluntarily. The case of the accused was that her husband was arrested on a complaint filed by the complainant before the police alleging that he had embezzled money from the establishment of the complainant and that for the release of her husband, the accused issued Ext.P1 under coercion in a subdued situation and in a helpless condition to see her husband out of bars. PW1 admitted that accused had issued the cheque for settlement of the above case. It is the admitted fact that there was no liability on the part of the accused. The husband of the accused was accused of embezzlement of money of the complainant. He was ultimately found not guilty and acquitted of the allegations. Assuming that the husband had embezzled money of the complainant the question is whether accused can be made liable for the above act of her husband. Even if the accused admits the criminal liability of her husband and undertakes to settle the matter, legally the accused cannot be compelled to pay any money on behalf of her husband and there is no legally enforceable debt or liability by the accused. PW1 has admitted the circumstances under which the cheque was issued. The circumstances which led to the issuance of the cheque leads to the inference that the execution of the cheque was not voluntary. When a cheque is not drawn voluntarily, it cannot be said that the drawer has drawn the cheque. 13. Due to dearth of evidence to show that Crl.Appeal No.2047/10 6 there was a legally enforceable debt or liability for which the accused issued Ext.P1 cheque, it has to be held that there is want of consideration for the transaction.” 9. On hearing both sides and on going through the order under challenge, particularly the portions extracted above, I am satisfied that there is nothing to interfere with the order of acquittal. There is no infirmity or perversity in the findings or the order. Therefore, I am not inclined to admit this appeal. The appeal is dismissed. K.HEMA, JUDGE. tgs