IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 CRL.A.No. 1182 of 2002 -------------------------------------- CC.164/2000 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... APPELLANT/COMPLAINANT: A.P. HAREENDRAN, S/O. BALAN, AANOROMMAL HOUSE, KUNNUMMAL AMSOM, MOKERI DESOM, VADAKARA TALUK. BY ADV. SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY RESPONDENTS/ACCUSED & STATE: 1. P. KARUNAKARAN, S/O. KELAPPAN, PUTHALATH HOUSE, KUNNUMMAL AMSOM, DESOM, KAKKATTIL P.O., VADAKARA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.N.N.SUGUNAPALAN BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1182 of 2002 --------------------------- JUDGMENT This is appeal filed with leave by the complainant in C.C.No.164/00 on the file of the Judicial First Class Magistrate's Court, Nadapuram assailing the acquittal of the first respondent under Section 255(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. 2. Appellant filed the complaint in the court below alleging that himself and the first respondent are friends; that the first respondent, for the purpose of proceeding to Mauritius in connection with his job, has borrowed an amount of Rs.30,000/- from him; that on demand made to the first respondent, who secured employment in Mauritius, to return the amount, the first respondent has caused Exhibit P1 cheque being delivered to him at his residence on 30.12.1999; that on presentation of the cheque for encashment, CRA 1182/02 2 it was returned dihonoured by the drawee bank under Exhibit P2 memorandum assigning the reason that funds in the account of the first respondent is insufficient to honour the said cheque; that thereupon, Exhibit P5, which is the original of Exhibit P4(a) notice, was issued through Lawyer to the first respondent intimating him of dishonour of the cheque and demanding payment of the amounts covered by the cheque, but the said notice was returned unserved for the reason that the addressee left India; that the first respondent has not cared to pay up the amounts covered by the cheque either within the statutory period or ever thereafter and thereby he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. On appearance of the first respondent in the court below, pursuant to issuance of summons, the learned Magistrate questioned him, reading over the particulars of the offence and explaining it to him. Thereupon, the first respondent pleaded not CRA 1182/02 3 guilty and consequently, a trial of the case was conducted by the court below. 4. On the side of the appellant, he got himself examined as PW1 and got marked in evidence Exhibits P1 to P5. On the appellant/complainant closing his evidence, the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. He has also filed a written statement of defence, wherein his contention is that he had borrowed an amount of Rs.10,000/- from the appellant in 1994 and that had been returned also and that the complaint is filed manipulating and bringing into existence Exhibit P1 cheque on a cheque leaf, which has been lost from his possession and that no amount is due to be paid to the appellant by him. However, he did not adduce any evidence in defence. The learned Magistrate considered the case in the light of the evidence so adduced, found that Exhibit P1 cheque was issued in CRA 1182/02 4 discharge of a borrowed debt and therefore, Section 138 of the Negotiable Instruments Act has no application in such cases, in view of the explanation to Section 138 of the Act and acquitted the first respondent. Hence this appeal. 5. Heard the learned counsel for the appellant as also the counsel for the first respondent and the Public Prosecutor for the second respondent State. 6. During examination of the appellant as PW1, it has come out in evidence that his case is that he advanced amounts to the first respondent in 1994 and the cheque was issued only later, in 1999. In view of the evidence that has so come out, the learned Magistrate came to the conclusion that Exhibit P1 cheque was being issued in discharge of a barred debt and held that in view of explanation to Section 138 of the Negotiable Instruments Act, the debt being not a legally enforceable debt, the punitive provision under Section 138 of the Act does not apply, so as to hold the first respondent CRA 1182/02 5 guilty, relying on the decision of this Court in Joseph v. Devasya (2000 (3) KLT 533). Consequently, without entering into finding on other disputes on merits of the case, the court below found the first respondent not guilty and acquitted him under Section 255(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act, vide judgment impugned. 7. The decision in Joseph's case (supra) has been overruled by a Division Bench of this Court in Ramakrishnan v. Parthasarathy (2003 (2) KLT 613), wherein, it has been held that Section 138 will have application also when cheque is issued in discharge of a debt, which is barred. The decision of the court below, acquitting the first respondent on the basis of the decision in Joseph's case (supra), therefore, deserves to be set aside and the case remitted back to the court below for disposal afresh, as the learned Magistrate has not entered into finding on all other disputes on merits of the case. CRA 1182/02 6 In the result, I set aside the order of acquittal impugned in this appeal and remit the case back to the court below for disposal afresh on merits according to law, entering into findings on all other disputed issues as well. The parties shall appear in the court below positively on 3.4.2008. The court below need not issue fresh notice to either of the parties, as their counsel take notice of the posting of the case in the court below on 3.4.2008. Parties shall be at liberty to produce a copy of this judgment in the court below to expedite the matter. Registry shall forward the lower court records along with a copy of this judgment to the court below forthwith so as to enable the court below to take up the case on 3.4.2008. 14th March, 2008 (K.P.Balachandran, Judge) tkv CRA 1182/02 7 K.P.Balachandran, J. --------------------- Crl.A.No.1182 of 2002 --------------------- JUDGMENT 14th March, 2008