IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 Crl.Rev.Pet.No. 90 of 2001() ---------------------------- CC.233/1994 of CHIEF JUDL.MAGISTRATE, ERNAKULAM CRA.240/1996 of V ADDL.SESSIONS COURT, ERNAKULAM .................... REVN. PETITIONERAPPELLANT/ACCUSED: ------------------ KOMALAM GOPI, W/O.GOPI, MADATHUMPADI HOUSE, M.M.C. P.O., PRSENTLY RESIDING WITH P.M.AHAMMED, PUTHUVAL HOUSE, H.NO.XIII/500 COCHIN UNIVERSITY P.O. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS/RESPONDENTS/COMPLAINANT NO.1: ------------- 1. T.K.MOHANKUMAR, THAIPADATH HOUSE, ELAMKUNNAPUZHA, COCHIN TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.SRI. K.B.SURESH R2 BY PUBLIC PROSECUTOR SRI.P.K.RAVIKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.358 OF 2001 IN CRL.R.P.NO.90 OF 2001 //DISMISSED// 22.08.2008. SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- Crl.R.P.No.90 OF 2001 ------------------------------------------- Dated this the 22nd day of August, 2008 O R D E R This revision is by the accused in a case taken cognizance of on the basis of a private complaint alleging offences punishable under Section 138 of the Negotiable Instruments Act. The trial court convicted the accused and sentenced her to undergo rigourous imprisonment for six months and to pay fine of Rs.60,000/-. The court of session allowed her appeal on the question of sentence, modified it and sentenced her to pay a fine of Rs.60,000/-, in default of which, to undergo simple imprisonment for two months. Out of the fine amount collected, an amount of Rs.45,000/- was to be paid to the complainant as compensation. 2. The allegation against the petitioner was that she and her husband informed the complainant that employment opportunity is available in the Cochin Port Trust that could be obtained for her, for which purpose, an amount of Rs.45,000/- has to be paid Crl.R.P.90/01 Page numbers to the accused. Believing those words, the complainant parted with that amount and paid it to the accused and her husband by borrowing it from the relatives of the complainant. No job was secured as agreed. The complainant wanted return of money. With the intervention of mediators, a cheque dated 31.10.1992 for an amount of Rs.45,000/- was issued by the accused in favour of the complainant. On presentation, that cheque was returned with the endorsement “payment stopped by the drawer” and that on enquiry, it was revealed that the accused did not have sufficient funds in her account to honour the cheque. Though the accused received the statutory notice, a reply was sent stating only that the cover contained only a blank paper. Alleging non-payment of the fund covered by the cheque, a complaint was instituted. The Additional Chief Judicial Magistrate took cognizance of the sworn statement of the complainant on record. At trial, the complainant gave evidence as PW1. PW2 spoke of the entrust of money by the complainant to the accused. PW3, an officer of the bank, spoke in relation to Crl.R.P.90/01 Page numbers the cheque and its dishonour and also that from Ext.P5, the balance outstandings in the account of the accused was only Rs.50/- and that the accused had written to the bank stopping payment of Ext.P1 cheque. 2. The essential ingredients of the issuance of the cheque, its presentation and dishonour not being in dispute and having been proved on the basis of legal evidence, the consideration of the court of first instance focused on the defence version regarding the transaction. DW1, the Assistant Manager of the Syndicate Bank, Kalamassery where the petitioner had the S.B. Account; DW2, one Watson Titus; DW3, one Lalan; DW4, Gopi, husband of the accused and DW5, the accused were examined on the side of the defence. The version attempted to be projected by the defence was that the account itself was opened at the instance of the complainant and utilising the amount given by him on the basis of the evidence of PW4, the husband of the accused and DW5, the accused. The court of first instance, as also the court Crl.R.P.90/01 Page numbers of session, concluded that the receipt of the amount of Rs.45,000/- and the issuance of the cheque by the complainant to discharge that liability cannot be disputed. 3. The short issue that ultimately raises for decision is as to whether the issuance of Ext.P1 cheque by the accused could be treated as one in discharge of a liability. The argument advanced on her behalf is that there was no debt or liability that the accused owe to the complainant and debt, if any, was that of her husband, DW4. It needs to be noticed that Section 138 of the N.I. Act comes into play in relation to cheques issued by a person to another person for the discharge, in whole or in part, of any debt or other liability. The explanation at the foot of that section provides that “debt or other liability” means a legally enforceable debt or other liability. Neither does that explanation, nor the charging provision in Section 138 confines its operation to be only in relation to cases where cheques are issued in discharge of debt or liability of the person issuing the Crl.R.P.90/01 Page numbers cheque. The law provides for discharge of debt by a person, even if it is a debt of another. Such transactions, where one discharges debt of another, is an instance of discharge of debt or other liability. If 'A' discharges a legally enforceable debt or other liability of 'B', by making a payment to 'C', then, if that is done by 'A' issuing a cheque to 'C', it becomes a cheque issued in discharge of the legally enforceable debt or other liability of 'B' and is therefore, debt or other liability for the purpose of Section 138 of the N.I. Act. So much so, the arguments on behalf of the accused that she issued the cheque for discharge of liability of her husband DW4 would not save her from the penal provision of Section 138 of the N.I. Act. 4. On to the question of sentence, the court of session has been extremely benevolent in vacating the sentence of imprisonment and imposing only a sentence of fine with a default sentence of simple imprisonment. Crl.R.P.90/01 Page numbers For the foregoing reasons, I find no ground to interfere either with the conviction or sentence. The revision petition fails. The same is accordingly dismissed. The accused will appear before the court of first instance on 31.10.2008 to suffer sentence. Otherwise, the appropriate court will take necessary steps for due execution of the sentence. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.26/8. Crl.R.P.90/01 Page numbers ======================= THOTTATHIL B. RADHAKRISHNAN, J Crl.R.P.NO.90 OF 2001 O R D E R 22nd AUGUST, 2008. =======================