IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.A.No. 1134 of 2002() ------------------------ CC.175/1996 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------ SAHADEVAN, S/O.NEELAKANDAN, RAMANAVILASOM VEEDU, EZHUKONE MURI, EZHUKONE VILLAGE, KOTTARAKKARA. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENT(S): ACCUSED & STATE: ---------------------------------------------------------- 1. KUNJUKRISHNA PILLAI, S/O.JANARDHANAN PILLAI, KUZHIYATHUVILA VEEDU, THAMARAKUDI MURI, MYLOM VILLAGE, KOTTARAKKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. R1 BY ADV. SRI.C.A.CHACKO R2 BY SR.PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== CRL.A. No.1134 OF 2002 ===================== Dated this the 21st day of May 2009 JUDGMENT This appeal is preferred against the dismissal of the complaint C.C.No.175 of 1996 pending before the Judicial I Class Magistrate Court-I, Kottarakkara. 2. Perused the records and heard the counsel for the respondent. The petition is one under Section 138 of the Negotiable Instruments Act, whereby it is contended by the de facto complainant that he had advanced a sum of Rs.1,25,000/- to the accused, who had issued a cheque towards the discharge of the liability which when presented for encashment, returned with the endorsement 'insufficiency of funds'. It is submitted that statutory compliance had been done and to the notice a reply raising false contentions had been sent. 3. In the trial court, Pws 1 to 4 and DW1 were examined. Exts.P1 to P7 and Exts.D1 and D2 were marked. On analysis of the materials, the trial court found that the dishonour of the cheque had not been proved. It also found that the case set up by the de facto complainant also appears to be not CRL.A.1134/2002 -:2:- true and therefore dismissed the complaint. It is against that decision, the de facto complainant has come up in appeal on special leave. 4. In a case under Section 138 of the Negotiable Instruments Act, it is imperative to prove that a cheque has been issued towards discharge of liability and the said cheque when presented for encashment, had returned with the endorsement 'insufficiency of funds'. Or, in other words, the dishonour of the cheque has to be proved. Unfortunately, in this case, the de facto complainant has not chosen to produce the dishonoured memo as such. But only a letter addressed by the Indian Overseas Bank intimating the de facto complainant that the cheque has been returned for the reasons stated in the slip. So the reason for the non-encashment is only incorporated in the slip and the said slip is not forthcoming before the court. Further Ext.P2 which is the letter addressed by the Indian Overseas Bank intimating about the non-encashment of the cheque itself creates suspicion. It can be seen that the date 20 or 30.12.1995 or so has been scored off and the date 5.1.1996 is incorporated. For this purpose, it is really necessary to refer to the evidence of PW1 who is the Manager of the Indian Overseas Bank. He had deposed before court that the signature found in Ext.P2 is not of his. He would say that just because it is only the return memo used by the bank, he would submit that it is issued from the bank. He would further submit CRL.A.1134/2002 -:3:- that there is no seal of the bank in Ext.P2. He would also depose before court that he is not able to see any document to show the return of the cheque. He would further depose in cross examination that he cannot say about the correct date in Ext.P2 and further he does not know who has made the correction. He would further submit that he cannot say whether Ext.P1 was sent for collection on which date and when it was returned. A pin pointed question was asked to him what is the record to show about the return of the cheque. He would submit it is the cheque return register. But, unfortunately, cheque return register is not forthcoming and he would conclude by saying that he cannot say whether Ext.P2 is a forged document. 5. The other evidence available is that of Pws. 2 and 3 who were the Branch Managers of the Kollam District Co-operative Bank. PW2 would say that he cannot say whether Ext.P1 cheque had come for collection by looking the ledger folio. PW3, the other Manager would say that Ext.P7 cheque return register does not show that cheque No.161040 which is Ext.P1 is entered in Ext.P7 cheque register. So far as the dishonour of the cheque and the date of dishonour are concerned, it is very crucial for attracting the offence under Section 138 of the Negotiable Instruments Act. It is mandatory to have the cheque dishonoured on the ground of CRL.A.1134/2002 -:4:- insufficiency of funds and the statutory compliance and the period of limitation would all depend upon the dishonour of the cheque intimation. Unless these things are clear one cannot find out whether the statutory mandate under Section 142 of the Negotiable Instruments Act has been complied with or not. 6. Secondly, it is the case of the accused in this case that the de facto complainant is a worker of one John, who is the father of Jose. According to the accused, there was transaction between Jose and him and a blank cheque which had been given as a security was not returned and John, the father through the de facto complainant had made use of that cheque to create a case of this nature and therefore there is no legal contract or liability as contended by the de facto complainant. The court below found that the said John was available before court on more occasions and the court was dissatisfied with the evidence of PW1 regarding the genuineness of the claim or the transaction. So, from an overall analysis of the materials, I have also absolutely no hesitation to hold that the court below was right in dismissing the complaint under Section 138 of the Negotiable Instruments Act. Therefore CRL.A.1134/2002 -:5:- the appeal is dismissed. M.N.KRISHNAN, JUDGE Cdp/-