IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 CRL.A.No.208 of 2002 ------------------------- CC.305/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR. .................... APPELLANT: COMPLAINANT -------------------------------- K.V.SOORYAN,AGED 32 YEARS, S/O.P.P.KUNHIRAMAN,ITHRAVAYAL, KARIVELLUR, P.O.KARIVELLUR, KANNUR DISTRICT BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: ACCUSED & STATE ---------------------------------------- 1. KOCHI SREEDHARAN S/O.KEENERI KRISHNAN, NEAR MANYAGURU VAYANASHALA, KUNIYAN, KARIVELLUR, P.O. KARIVELLUR, KANNUR DISTRICT. * 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OT KERALA, ERNAKULAM. BY ADV. SRI.M.SASINDRAN PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU [R2 IS IMPLEADED AS ADDL. RESPONDENT NO.2 AS PER ORDER ON CRL.M.A.NO.2562/08 DT.13/03/08] THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.208 of 2002 ------------------------------------------------ Dated this the 13th day of March, 2008 JUDGMENT This appeal with leave is filed by the complainant in C.C.305/98 on the file of the Judicial First Class Magistrate's Court, Payyannur assailing the acquittal of the first respondent of offence punishable under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C. 2. The appellant filed complaint in the court below alleging that the first respondent borrowed from him an amount of Rs.25,000/- on 05/03/98 on condition that it would be repaid on 18/03/98; that on 18/03/98 the first respondent issued Ext.P1 cheque drawn at the Karivellur branch of the Syndicate Bank for an amount of Rs.25,000/- in discharge of the said debt; that on presentation of the cheque for encashment at the drawee bank on 19/03/98, it was returned dishonoured vide Ext.P2 memorandum Crl. Appeal No.208 of 2002 -2- for reason of “insufficiency of funds” in the account of the first respondent; that consequently, on 27/03/98 the original of Ext.P3 notice was caused to be issued through lawyer to the first respondent intimating him of the dishonour of the cheque and demanding payment of the amounts covered by the cheque; that the said notice was received by the first respondent under Ext.P3(b) acknowledgment card, but he has not cared to make payment of the amounts covered by the cheque either within the statutory period or ever thereafter and thus, he has committed an offence punishable under Section 138 of the N.I. Act. 3. On appearance of the first respondent in the court below pursuant to issuance of summons, he was questioned by the learned Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently a trial of the case was conducted by the court below. Crl. Appeal No.208 of 2002 -3- The appellant/complainant tendered evidence as PW1 and got marked Exts.P1 to P3(b). On the appellant/complainant closing his evidence, the first respondent was questioned by the learned Magistrate under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. However, he did not adduce any evidence in defence. 4. The learned Magistrate considered the case in the light of the evidence adduced as aforesaid; found on the testimony of appellant as PW1 that the transaction took place in 1991 whereas the cheque was issued on 18/03/98; that the cheque was therefore, being issued in discharge of a barred debt; and that therefore, the first respondent is not liable to be convicted for offence under Section 138 of the N.I. Act by reason of explanation to Section 138 of the N.I. Act as has been held Crl. Appeal No.208 of 2002 -4- by this Court in Joseph v. Devassia (2000 (3) KLT 533). Consequently, he acquitted the first respondent of offence punishable under Section 138 of the N.I. Act vide Section 255(1) of the Cr.P.C. 5. It is contended before me by the learned counsel for the appellant that the decision relied on by the court below for acquittal of the accused namely the decision of this Court in Joseph's case (cited supra) is no longer good law in view of the subsequent Division Bench decision of this Court in Ramakrishnan v. Parthasaradhy (2003(2) KLT 613); and that therefore, the appeal deserves to be allowed. 6. The learned counsel for the respondent advanced arguments upholding the decision of this Court that in view of the explanation to Section 138 of the N.I. Act, if a cheque is issued in discharge of a barred debt that will not attract the penal provision under Section Crl. Appeal No.208 of 2002 -5- 138 of the N.I. Act though it may be that amount due under the cheque can be recovered resorting to civil remedies. Though it appears that the argument is sound and appealing, it cannot be upheld for the reason that such contentions stand concluded by the Division Bench decision of this Court in Ramakrishnan's case aforesaid which was a decision rendered on reference made by a Single Judge doubting the correctness of the decision in Joseph's case. 7. In the circumstances, in view of the decision of this Court in Ramakrishnan's case (cited supra), I hold that despite the fact that Ext.P1 cheque was being issued in discharge of a barred debt as admitted by the appellant, offence under Section 138 of the N.I. Act stands made out and therefore, the first respondent is liable to conviction for offence under Section 138 of the N.I. Act as it is not in dispute that all statutory Crl. Appeal No.208 of 2002 -6- formalities required for the maintainability of a complaint under Section 138 of the N.I. Act stands satisfied in the instant case and that the dishonour of Ext.P1 cheque was for reason of insufficiency of funds in the account of the first respondent to honour the said cheque. 8. In the result, allowing this appeal in reversal of the judgment passed by the court below, I find the first respondent guilty of offence punishable under Section 138 of the N.I. Act and convict him thereunder. Posted for questioning the first respondent regarding the sentence to 27/03/08. K.P.BALACHANDRAN, JUDGE kns/-