IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 666 of 2006() ----------------------------- CRA.117/2005 of SESSIONS COURT, KALPETTA ST.131/2004 of JUDL.MAGISTRATE OF FIRST CLASS I, SULTHANBATHERY .................... REVISION PETITIONER: APPELLANT/ACCUSED: ------------------------------------------------------------------------ M.T.THANKACHAN, S/O.THOMAS, AGED 42, MUTTATHU HOUSE, WARD NO.IV, HASSAN QUARTERS, SHAFI ROAD, SULTHAN BATHERY. BY ADV. SRI.JOSE KURIAKOSE SRI.JOSEPH A.VADAKKEL RESPONDENTS:RESPONDENTS:COMPLAINANT: ------------------------------------------------------------------------- 1. P.P.KURIAKOSE, SOUMYA STORES, KOTTAKUNNU, SULTHAN BATHERY. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SMT.K.V.RESHMI FOR R1 BY PUBLIC PROSECUTOR SRI.THOMAS AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1870/2006 IN CRL.R.P.NO.666/2006 DISMISSED 13/10/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J -------------------------- CRL.R.P. No.666 OF 2006 -------------------------------------- Dated this the 13th day of October, 2008 O R D E R This Revision is preferred against the judgment of the Sessions Judge, Kalpetta in Crl. Appeal No. 117/05. The Revision Petitioner was convicted under Section 138 of the Negotiable Instrument Act. The Trial Court sentenced him to undergo Simple Imprisonment for a period of three months and to pay compensation of Rs. 45,000/- under Section 357(3) and in default to undergo Simple Imprisonment for one month. When it was challenged before the Sessions Judge he had also declined to interfere and confirmed the conviction and sentence. It is against that decision the present revision is preferred. 2. The learned counsel for the Revision Petitioner urged three points. One mainly on the question of limitation and second in the absence of concrete evidence to enter into a conviction and lastly on the question of quantum of sentence. So far as the question of limitation is concerned, the learned counsel would contend that the liability took place even according to the complaint in 1999 and the cheque has been issued only in July 2003 at a time when the debt CRL.R.P. No.666 OF 2006 -2- has lapsed on account of limitation and therefore for an unenforceable debt prosecution could not be launched under Section 138 of the Negotiable Instrument Act. The Trial Court had relied upon the decision of a Devision Bench of this Court reported in Ramakrishnan v. Parthasaradhy [2003 (2) KLT 613]. It was also a case where the contention was that on the date of drawal of the cheque, the debt was barred and therefore it cannot be enforced. This Court after considering the entire materials including Section 25(3) of the Contract Act held that the debt is not barred by limitation and it is enforceable. It is held by this Court that: “It is, undoubtedly, true that 'to draw' means to write and sign. However, even if the claim is barred by limitation on the date of the drawing of the cheque, on delivery to the other person, it becomes a valid consideration for another agreement. The drawal of the cheque evidences such an agreement. The acknowledgement is enforceable. The drawing and delivery of a cheque create a legally enforceable liability. Thus, we are of the opinion that when a person writes, signs and delivers a cheque to another it is an acknowledgment of a legally enforceable liability. CRL.R.P. No.666 OF 2006 -3- Thereafter, if the cheque is dishonoured on account of insufficiency of funds such a person shall not be entitled to plead that at the time of his writing the cheque the claim had become barred by limitation and, thus, he is not liable to be punished under S. 138. Under S. 25(3), a promise can be made even in a case where the limitation for recovery of the amount has already expired. Such a promise has to be in writing. It can be in the form of a cheque. When a cheque is delivered to the payee, the person is entitled to present the cheque to the bank and seek payment. In such an event, if the cheque is dishonoured, the liability under S. 138 would arise. It would not be permissible for the accused to contend that the liability was not legally enforceable.” In the light of the above said dictum laid down by this Court it has to be held that the debt is not barred by limitation and therefore it is perfectly enforceable. So the said contention of the learned counsel for the Revision Petitioner cannot be accepted. 3. The learned counsel would contend that the evidence is not sufficient to establish the offence under Section 138 of Negotiable Instrument Act. Both the courts below have considered the CRL.R.P. No.666 OF 2006 -4- documentary as well as the oral evidence adduced in the case and were satisfied that the Revision Petitioner has borrowed the amount and had issued Ext. P1 cheque in discharge of the liability and that the complainant has satisfied all the legal formalities to be done under the provisions of Negotiable Instrument Act for initiating action under Section 138. The concurrent finding of facts does not suffer from any illegality, irregularity and impropriety and sitting in the revisional jurisdiction the concurrent finding on facts cannot be brushed and side lightly. Therefore the said contention of the learned counsel for the Revision Petitioner also cannot be accepted. Lastly it is on the question of conviction and sentence. The Trial Court had sentenced the Revision Petitioner to undergo Simple Imprisonment for a period of three months and to pay compensation of Rs. 45,000/-. 4. After hearing the learned counsel for the Revision Petitioner I feel some leniency can be shown and therefore I modify the sentence as follows: 5. The Revision Petitioner is found guilty under Section 138 of the Negotiable Instrument Act and is directed to undergo S.I till rising of the court and to pay fine of Rs. 45,000/-. On payment of CRL.R.P. No.666 OF 2006 -5- the fine the same shall be disbursed to the complainant and in default of payment of fine the Revision Petitioner shall undergo Simple Imprisonment for a period of 45 days. The Revision Petitioner shall appear before the Trial Court to receive the sentence on 14.12.2008 failing which the sentence has to be executed by the Trial Court. Revision Petition is disposed of accordingly. M.N. KRISHNAN, JUDGE vkm