IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 CRL.A.No. 264 of 2002 ------------------------------------ CRA.17/2000 of II ADDL.SESSIONS COURT, KOLLAM .................... APPELLANT/COMPLAINANT/2ND RESPONDENT: B.N.KRISHNANKUTTY, THEYATTIL VEEDU, PUTHUKKADU MURI, CHAVARA. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENTS/ACCUSED/APPELLANT/1ST RESPONDENT: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. C.S.SOMAN, LAL BHAVAN, CHERUSSERI BHAGOM, CHAVARA. BY ADV. SRI.B.MOHANLAL BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 264 of 2002 --------------------------- JUDGMENT This is appeal with leave filed by the complainant in C.C.No.219/97 on the file of the Judicial First Class Magistrate's Court, Karunagappally challenging the acquittal of the second respondent of offence under Section 138 of the Negotiable Instruments Act by the Sessions Judge, Kollam, vide judgment dated 13.9.2001 in Crl.A.No.17/00, reversing the conviction and sentence passed by the learned Magistrate, vide judgment dated 24.12.1999. 2. The appellant filed the complaint before the learned Magistrate, complaining of commission by the second respondent of an offence punishable under Section 138 of the Negotiable Instruments Act on the allegation that the second respondent availed of a loan of Rupees one lakh from him on 14.3.1996, executing Exhibit P1 pro note, agreeing to repay the amount on demand with interest at 24% CRA 264/02 2 per annum; that on demand made for repayment of the amount with interest, the second respondent issued Exhibit P2 cheque for Rs.1,15,000/- dated 30.10.1996 drawn on an account maintained by him with the Chavara Branch of State Bank of Travancore; that on presentation of the said cheque for collection, it was returned dishonoured by the drawee bank assigning the reason “funds insufficient”, vide Exhibit P3 memorandum; that the cheque along with Exhibit P3 memorandum was returned by his bankers under Exhibit P4 memo; that thereupon the original of Exhibit P5 notice was caused to be issued through Lawyer to the second respondent, intimating him of the dishonour of the cheque and calling upon him to make payment of the amounts covered by the cheque; that the said notice was received by the second respondent under Exhibit P6 postal acknowledgment card, but, he has not paid up the amounts covered by the cheque either within the statutory period or ever thereafter and thus, CRA 264/02 3 he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The complaint was taken on file by the learned Magistrate, taking cognizance of the offence under Section 138 of the Negotiable Instruments Act and was registered as C.C.No.219/97 on the file of his court. On appearance of the second respondent before the trial court, the learned Magistrate questioned him, 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 learned Magistrate. 4. On the side of the appellant, PWs 1 and 2 were examined and Exhibits P1 to P10 were got marked. On the appellant closing his evidence, the second respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. CRA 264/02 4 However, he admitted receipt of notice and also the fact that he has not paid up the amounts covered by the cheque. According to him, he had availed of a loan of Rupees thirty thousand from the appellant, executing a promissory note for Rupees one lakh and by way of security for the said pro note, a blank signed cheque was also entrusted with the appellant and that no amount as claimed is due to the appellant from him. However, he did not adduce any evidence in defence. 5. The learned Magistrate considered the case in the light of the evidence adduced as aforesaid; found the second respondent guilty of offence punishable under Section 138 of the Negotiabel Instruments Act, convicted him thereunder and sentenced him to undergo simple imprisonment for a term of six months and to pay an amount of Rs.1,15,000/- as compensation to the appellant under Section 357(3) Cr.P.C. CRA 264/02 5 6. The second respondent filed Crl.A.No.17/00 before the Sessions Court, Kollam. In appeal, Exhibit B1, copy of the plaint in O.S.No.494/96 of Sub Court, Kollam, filed by the appellant against the second respondent, was produced by the second respondent. Allowing the said appeal, the Sessions Judge, set aside the conviction and sentence passed by the learned Magistrate against the second respondent and acquitted him of the offence punishable under Section 138 of the Negotiable Instruments Act. Hence this appeal by the aggrieved appellant/complaint. 7. It is the case of the appellant that an amount of Rupees one lakh was advanced to the second respondent on 14.3.1996 under Exhibit P1 promissory note executed on the same day. It is his further case that on demand for repayment of the amount, second respondent issued Exhibit P2 cheque dated 30.10.1996 in discharge of the debt covered by Exhibit P1 pro note. According to the second CRA 264/02 6 respondent, a blank signed cheque leaf also was being delivered to the appellant on 14.3.1996 along with Exhibit P1 pro note by way of security and the appellant has brought into existence Exhibit P2 on the said blank signed cheque leaf entrusted with him. There is no case, however, for the second respondent that all statutory formalities required for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act do not stand complied with in the instant case or that Exhibit P2 cheque was not being dishonoured for want of sufficient funds in his account. 8. The contention of the second respondent is that Exhibit B1 suit has been filed by the appellant on the basis of Exhibit P1 promissory note on 19.12.1996 claiming the amount covered by the promissory note with interest at 24% per annum from the date of promissory note, namely, 14.3.1996 till realisation and that therefore, the complaint has been filed before the Magistrate on 20.12.1996 CRA 264/02 7 namely, one day after filing of Exhibit B1 suit and that when the appellant has fallen back on the promissory note consequent on dishonour of Exhibit P2 cheque and has instituted a suit evidenced by Exhibit B1 for realisation of the entire amount covered by the pro note, a complaint simultaneously filed on the basis of Exhibit P2 cheque for the amount covered by the promissory note and interest thereon till the date of cheque is not at all maintainable. The above contention is advanced without prejudice to the contention of the second respondent that he had availed only a loan of Rs.30,000/- and not Rupees one lakh. It is true that even going by the case of the appellant, the transaction was evidenced by Exhibit P1 pro note only and Exhibit P2 cheque was being issued later, in discharge of the said debt. If that be so, consequent on dishonour of Exhibit P2 cheque, suit should have been instituted on the basis of Exhibit P2 cheque. On the other hand, Exhibit B1 suit is CRA 264/02 8 instituted on the basis of Exhibit P1 pro note. This means that the appellant wanted to fall back upon the original cause of action claiming the entire amounts covered by Exhibit P1 with interest thereon at 24% per annum from the date of pro note till realisation. He cannot, at the same time, file a complaint on the basis of Exhibit P2 cheque alleging that it was issued in discharge of debt covered by Exhibit P1. When the appellant himself has given a go bye to Exhibit P2 cheque by instituting suit on the basis of Exhibit P1 pro note, it cannot be heard from him that he was receiving Exhibit P2 cheque in discharge of debt due under Exhibit P1. The acquittal of the second respondent by the Sessions Judge reversing the conviction and sentence passed by the Magistrate, in the circumstances, deserves to be confirmed and this appeal dismissed as one devoid of any merit. In the result, confirming the correctness of the acquittal of the second respondent by the CRA 264/02 9 Sessions Judge, reversing the conviction and sentence passed by the learned Magistrate, I dismiss this Criminal Appeal. 17th March, 2008 (K.P.Balachandran, Judge) tkv CRA 264/02 10 K.P.Balachandran, J. --------------------- Crl.A.No.264 of 2002 --------------------- JUDGMENT 17th March, 2008