IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 CRL.A.No. 830 of 2002() --------------------------------- ST.821/2000 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI ........................................................... APPELLANT(S): COMPLAINANT --------------------------------------------- XAVIER BANNETTE K.M., KURUPPASSERY HOUSE, OCHANTHURUTHU P.O., KOCHI TALUK. BY ADV. SRI.SHAIJAN C.GEORGE RESPONDENT(S): ACCUSED AND STATE ---------------------------------------------------------- 1. MANI, S/O. NARAYANAN, PERUNGOTTU HOUSE, AZHEEKKAL DESOM, PUTHUVYPE VILLAGE, KOCHI TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.T.H.ABDUL AZEEZ FOR R1 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.830 OF 2002 -------------------------- Dated this the 10th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against he order of acquittal passed by the learned Judicial First Class Magistrate Court - I, Kochi, in S.T.821/00. It is the case of the complainant that there was an agreement to sell the property of the accused to the complainant, for a consideration of Rs.1,12,000/- and an advance of Rs.15,000/- was paid by the complainant to the accused. Later on, the accused resiled from the agreement and there was a decision to settle the matter by returning an amount of Rs.15,000/- received as consideration and Rs.5,000/- more, and thus a cheque was issued for an amount of Rs.20,000/- bearing the date 4.10.99, towards the discharge of the liability, which when presented for encashment returned with endorsement of `insufficiency of funds'. Thereafter the prosecution has been launched on compliance of the statutory requirements. On the other hand, the accused would contend 2 CRL.A.No.830 OF 2002 that there was an earlier transaction between the complainant and the accused whereby the accused had borrowed a sum of Rs.15,000/- and at that time itself the complainant had taken a blank signed cheque and a blank signed paper and had utilised the same for the creation of the agreement as well as the cheque, in order to institute this action. The court below on analysis of the materials, found in favour of the accused and also held that even if the cheque is there, it relates a barred debt and therefore it is barred by limitation as well. So far as the question of limitation is concerned, u/s.25 of the Contract Act, if a person agrees to pay an amount by executing a cheque, which he owed at some point of time, it amounts to a new contract and thereby it will not be barred by limitation. Here, the crucial question is more about the probability of the case set by the complainant or that by the accused. For that purpose, the material available is the evidence of PW1. In a S.138 case, when execution of a cheque is proved, then the presumption u/s.118 that, it is supported by consideration and 3 CRL.A.No.830 OF 2002 that the presumption that it is issued towards the discharge of the liability u/s.139 of the Negotiable Instruments Act will arise but in order to have that presumption, the basic thing to be proved is that the cheque has been executed towards that transaction. Admittedly, the complainant is a money lender by profession. There have been an earlier transaction between the complainant and the accused which is proved by production of Ext.D1. A perusal of Ext.D1 would reveal that an amount of more than Rs.22,000/- was outstanding to the accused in the year 1999 January, and there is nothing else to show that it had been paid by the complainant in the case. Now in the normal human course of conduct, when a property is agreed to be sold and there is a breach of contract, normally a notice would be issued and a suit for specific performance will be filed, or in the alternative, for the return of money with damages, that will be all the more when the complainant is a money lender by profession. Now a perusal of the signature in the agreement with that of Ext.P6, an acknowledgment, does not have any 4 CRL.A.No.830 OF 2002 similarity at all. Admittedly, the writing in the cheque is done by the complainant. It is true that the signature is admitted. It is also true that the date was not there, even according to the complainant, at the time of handing over the cheque and he would contend that he inserted the date, but with the consent of the accused. It is not an admitted fact. So subsequent to the fact, even if it is admitted for argument sake, that the writing of the cheque with the signature was there in the cheque at the time of handing over it, in the absence of any consent, when a date is put on a later date, it would squarely come under the ambit of a material alteration contemplated u/s.87 of the Negotiable Instruments Act, which will invalidate the whole thing. I am referring to this, only for the reason to find out the preponderance of probability of the case. From the materials available, it is seen that there had been an earlier transaction between the accused and the complainant. Ext.D1 would reveal that an amount outstanding to the accused from the complainant, whether under such circumstance, a person will 5 CRL.A.No.830 OF 2002 again execute a cheque for some amount due, even if proved can not be accepted. Therefore as done by the court below, I also come to a conclusion that, the evidence in support of the transaction alleged by the complainant is not satisfactory. When it is so, all the more we can not rely upon the cheque which is said to be issued towards the discharge of the liability and admittedly the date is put on a different point of time by the complainant. Therefore I do not find any ground to interfere with the decision rendered by the court below. The appeal lacks merits and the same is dismissed. M.N.KRISHNAN, JUDGE ami.