IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 CRL.A.No. 225 of 2002 ------------------------------------ CC.1049/1997 of JFCM, THIRUVALLA .................... APPELLANT: S.A.MAMMAN, SAKTHIMANGALAM, NIRANAM VILLAGE, THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.SHAJI P.CHALY SRI.D.BIJU SMT.KEERTHY VISWANATH V.S. RESPONDENTS: 1. C.P.GOPALAN ACHARI,THEKKE CHALAYIL VEEDU, NIRANAM VILLAGE, THIRUVALLA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R2 ADV. SRI.K.S.VIJAYAKUMAR FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.225 of 2002 -------------------------- JUDGMENT This appeal is filed challenging the order of acquittal passed by Judicial First Class Magistrate, Thiruvalla in C.C.No.1049/1997. First respondent is the accused therein. Appellant filed a complaint alleging that first respondent borrowed Rs.22,690/- on different occasions for the construction of his house and towards discharge of that amount, issued Exhibit P1 cheque dated 2.6.1997 for Rs.22,690/-, drawn on Pulikeezhu Branch of Central Bank of India and the cheque, when presented for encashment, where the appellant is having an account. It was dishonoured for want of sufficient funds under Exhibit P3, which was intimated to the appellant under Exhibit P2. Appellant sent the original of Exhibit P4 notice demanding the amount covered by the dishonoured cheque. First respondent received it under Exhibit CRA 225/02 2 P6 and instead of paying the amount, he sent Exhibit P7 reply raising false contentions. First respondent thereby committed offence under Section 138 of Negotiable Instruments Act. 2. Learned Magistrate, after taking cognizance of the offence under Section 138 of Negotiable Instruments Act, issued summons to the first respondent. First respondent appeared and pleaded not guilty. Learned Magistrate examined the appellant as PW1 and his wife as PW2 and marked Exhibits P1 to P9. First respondent did not adduce any evidence. 3. Contentions raised at the time of cross- examination of PW1 were similar to the contentions raised in Exhibit P7 reply. According to the first respondent, Exhibit P1 cheque was not issued towards discharge of any amount borrowed or cost of materials used for the construction of the house for the first respondent and instead, the cheque was obtained from Deputy Superintendent of Police's Office, Thiruvalla by exercising duress and CRA 225/02 3 coercion and is, therefore, unenforceable in law. 4. Learned Magistrate, on the evidence, found that evidence of PWs 1 and 2 show that Rs.22,690/- was not paid as cash to the first respondent and instead, the amount was the cost of materials used for the construction of the house for the first respondent and construction of the house was completed in 1986 and therefore, in 1997, when Exhibit P1 cheque was issued, the debt has already become barred and issuance of a cheque in discharge of a time barred debt and its dishonour will not attract an offence under Section 138 of Negotiable Instruments Act. Learned Magistrate also found that there is doubt even with regard to existence of a consideration for the cheque and in such circumstances, acquitted the first respondent. 5. Appellant would contend that courts below did not properly consider the evidence in the light of the settled legal position. Learned counsel argued that even, according to the first respondent, the house was constructed for him by CRA 225/02 4 the appellant and first respondent is only claiming that it was done free of cost as a charity and therefore, he is not liable to pay any amount. He would also contend that even if the cost of materials are calculated, the amount would only be Rs.16,000/-. Though it was contended that cheque was obtained from Deputy Superintendent of Police's Office, Thiruvalla by exercising duress and coercion, there is no evidence to prove the same. Learned counsel would argue that even a time barred debt could be a valid consideration for issuance of a cheque, as, in that case, the cheque would amount to an agreement as provided under Section 25(3) of Contract Act. Relying on the Division Bench decision of this Court in Ramakrishnan v. Parthasaradhy (2003 (2) KLT 613), followed by the decisions of the learned single Judge in Gopinathan v. Sivadasan (2006 (4) KLT 779 and Ramakrishnan v. Gangadharan Nair (ILR 2006 (3) Kerala 657), learned counsel argued that finding of the learned CRA 225/02 5 Magistrate that as the cheque was issued for a time barred debt, there is no valid consideration is unsustainable. Learned counsel also pointed out that though it was contended by the first respondent that cheque was obtained from Dy.S.P.'s Office, Thiruvalla and that too under duress and coercion, no evidence was adduced. Evidence of PWs 1 and 2 further establish that Exhibit P1 cheque was voluntarily executed and issued towards discharge of an existing liability and therefore, the order of acquittal is unsustainable. 6. Learned Magistrate found that Exhibit P1 cheque was issued in discharge of a time barred debt based on the evidence of PWs 1 and 2. Evidence of PWs 1 and 2 show that the amount covered by Exhibit P1 cheque was the amount payable by the first respondent being the cost of the materials used for the construction of the house for the first respondent. It is also established that construction of the house was completed in 1986. Therefore, the cheque issued after three years from CRA 225/02 6 the date of completion of the construction is barred and Exhibit P1 cheque was issued ten years after completion of the construction of the house. 7. Section 138 of Negotiable Instruments Act provides that if the dishonoured cheque was issued in discharge of whole or any part of the debt or other liability, it would attract the offence under Section 138 of Negotiable Instruments Act, provided, other requirements are complied. The question is whether the debt so provided would include a time barred debt also. 8. The question was settled by the Devision Bench in Ramakrishnan's case (supra), which was followed by the decisions of the learned single Judge in Gopinathan's case (supra) and Ramakrishnan v. Gangadharan Nair's case (supra). Division Bench held that under Section 25(3) of Contract Act, a promise can be made even in a case where limitation for recovery of the amount has already expired and that promise is in writing and such writing can CRA 225/02 7 also be in the form of a cheque and when a cheque is delivered to the payee, the person is entitled to present the cheque to the Bank and seek payment and in the event of dishonour, an offence under Section 138 of Negotiable Instruments Act is attracted. In view of the legal position, the finding of the learned Magistrate that as the amount covered by Exhibit P1 cheque is a time barred debt, an offence under Section 138 of Negotiable Instruments Act is not attracted is unsustainable. 9. Learned Magistrate has also doubted existence of consideration for Exhibit P1 cheque. Learned counsel pointed out that Exhibit P7 reply was sent by the first respondent when the amount covered by the dishonoured cheque was demanded under Exhibit P4 notice and though it was contended that cheque was obtained under duress and coercion from Dy.S.P.'s Office and first respondent has prayed time for payment of Rs.16,000/-, which, according to the first respondent, is the cost of CRA 225/02 8 materials payable by him in case, construction of the building is not done in charity and therefore, in the light of this contention, there is no reasonable basis for the learned Magistrate to suspect the consideration for Exhibit P1 cheque. As rightly pointed out by the learned counsel appearing for the first respondent, evidence of PWs 1 and 2 establish that Exhibit P1 cheque was drawn by the first respondent and issued to the appellant. Hence, drawing of the cheque is established. Naturally, court is bound to draw the presumption available under Section 139 of Negotiable Instruments Act. True, it is a rebuttable presumption. But, it is for the accused to rebut the presumption once execution of the cheque is admitted or proved. What is contended by the first respondent is that Exhibit P1 cheque was obtained under duress and coercion. According to the first respondent, appellant filed the complaint before Deputy Superintendent of Police, Thiruvalla and first respondent was called there and he was CRA 225/02 9 compelled to execute and hand over Exhibit P1 cheque and it was thus, executed under coercion and threat. Exhibit P7 reply shows that according to the first respondent, if the case is to be tried, he has to examine respectable witnesses to establish coercion and threat. Still, he did not examine any witness. He did not even come to the box and claim that the cheque was not voluntarily executed, but was procured by threat or coercion. Though a presumption as provided under Section 139 of Negotiable Instruments Act could be rebutted even without adducing any evidence on the side of the accused, making use of the evidence available on record, including what was brought by cross- examination of the complainant or his witness, it is for the first respondent to rebut the presumption available under Section 139 of Negotiable Instruments Act. There is absolutely no evidence on the side of the appellant regarding absence of consideration. On the other hand, the expression of willingness to pay Rs.16,000/- and CRA 225/02 10 the request for time to pay that amount in Exhibit P7 reply supports the case of the appellant that Exhibit P1 cheque was issued towards discharge of an existing liability. Therefore, the finding of the learned Magistrate that Exhibit P1 cheque is not proved to be issued in discharge of an existing liability is also unsustainable. The cheque was presented within the time available and a notice as provided under Section 138(b) of Negotiable Instruments Act was sent within the period provided under the Act and the complaint was also lodged within the period as provided under the Act and cognizance was taken, are not disputed. In such circumstances, the order of acquittal passed by the Magistrate is unsustainable in law. It can only be set aside and petitioner convicted for the offence under Section 138 of Negotiable Instruments Act. 10. Then the question is regarding the sentence. The cheque is for Rs.22,690/- and was issued on 2.6.1997. Considering the entire facts and circumstances of the case, interest of justice CRA 225/02 11 will be met if first respondent is sentenced to imprisonment till rising of court and a compensation of Rs.25,000/- to be paid to the appellant/complainant and in default, simple imprisonment for two months. Appeal is allowed. Order of acquittal passed by Judicial First Class Magistrate, Thiruvalla in C.C. No.1049/1997 is set aside. First respondent/ accused is found guilty of the offence under Section 138 of Negotiable Instruments Act. He is convicted and sentenced to imprisonment till rising of court and a compensation of Rs.25,000/- to be paid to the appellant/complainant and in default, simple imprisonment for two months. Appellant is directed to appear before Judicial First Class Magistrate, Thiruvalla on 10.08.2010. Magistrate is directed to execute the sentence. 29th June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRA 225/02 12 M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.225 of 2002 -------------------------- JUDGMENT 28th June, 2010