IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.A.No. 45 of 2003() ---------------------- CC.538/2000 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... APPELLANT(S): COMPLAINANT: -------------------------- C.P. ABRAHAM, S/O. PHILIP, CHAKKUMKAL HOUSE, KARIMKUNNAM KARA, KARIMKUNNAM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.K.K.CHANDRAN PILLAI RESPONDENT(S): ACCUSED AND ANOTHER ----------------------- 1. P.C. ABRAHAM, S/O. CHACKO, CHAKKUMKAL HOUSE, NEAR ENGINEERING COLLEGE, THODUPUZHA KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.TEK CHAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No.45 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June, 2009 JUDGMENT Challenge in this appeal filed by the complainant in C.C.No.538/2000 of Chief Judicial Magistrate Court, Thodupuzha is to the judgment of the Trial Court datd 11th July,2002 acquitting the first respondent/accused finding him not guilty of offence punishable under Section 138 of the Negotiable Instrument Act. 2. The appellant/complainant filed a private complaint before the lower court alleging that the accused borrowed Rs. 1,50,000/- from him on 26-02-1992 and again borrowed Rs. 2 lakhs from him on April 6, 1994 promising to repay the same, that the matter was settled between the parties and the accused agreed to repay Rs. 7 lakhs to the complainant for which the accused issued a cheque- Ext.P1 on March 23, 2000 drawn to the Syndicate Bank, Thodupuzha which when presented for collection through the District Co-operative Bank, Karikkunnam branch of Thodupuzha was returned dishonoured for want of sufficiency of funds in the account of the accused and that Crl.A.No.45/03 2 inspite of notice issued - Ext.P3 the accused did not repay the amount and that accused has thereby committed an offence punishable under Section 138 of the Negotiable Instrument Act. 3. The learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. When the accused appeared before the trial court, he pleaded not guilty to the charge under Section 138 of the Negotiable Instrument Act. PWs 1 and 2 were examined, Exts.P1 to P6 were marked on the side of the complainant. On questioning under Section 313 of Cr.P.C. by the trial court, the accused denied having committed any offence and submitted that the complainant has misused the blank signed cheque leaves given by him to the District Co-operative Bank authorities. 4. The trial court though found that Ext.P1 cheque was issued for a legally enforceable debt which was returned dishonoured when presented for collection and that inspite of the notice, the accused had not repaid the amount, found that Ext.P1 cheque was issued towards a time barred debt and found the accused not guilty of the offence alleged against him and acquitted him. The complainant has come up Crl.A.No.45/03 3 in appeal challenging the said judgment of the trial court. The first respondent/accused remained absent inspite of the receipt of notice. 5. The only question which arises for consideration is whether the finding of the lower court that Ext.P1 cheque was issued towards a time barred debt and that therefore no charge under Section 138 will lie against the accused can be sustained. A Division Bench of this court has held in Ramakrishnan v. Parthasaradhy ( 2003(2) KLT 613) as follows : “It is, undoubtedly, true that 'to draw' means to write and sign. However, even if the claim is barred by limitation on the date of the drawing of the cheque, on delivery to the other person, it becomes a valid consideration for another agreement. The drawal of the cheque evidences such an agreement. This acknowledgment is enforceable. The drawing and delivery of a cheque create a legally enforceable liability. Thus, we are of the opinion that when a person writes, signs and delivers a cheque to another, it is an acknowledgment of a legally enforceable Crl.A.No.45/03 4 liability. Thereafter, if the cheque is dishonoured on account of insufficiency of funds such a person shall not be entitled to plead that at the time of his writing the cheque the claim becomes barred by limitation and, thus, he is not liable to be punished under S.138. Under S.25(3), a promise can be made even in a case where the limitation for recovery of the amount has already expired. Such a promise has to be in writing. It can be in the form of a cheque. When a cheque is delivered to the payee, the person is entitled to present the cheque to the bank and seek payment. In such an event, if the cheque is dishonoured, the liability under S.138 would arise. It would not be permissible for the accused to contend that the liability was not legally enforceable.” 6. In the light of the principles laid down in the above decision, the finding of the trial court that the cheque was issued towards a time barred debt and that therefore no offence under Section 138 will lie cannot be sustained. That being so, the said finding of the Crl.A.No.45/03 5 lower court has to be set aside. Consequently, the judgment of the lower court acquitting the accused has also to be set aside. It is seen from the judgment of the lower court that there was not much of a discussion regarding the other aspects of this case. Therefore, I am inclined to remand the matter to the trial court to consider afresh the matter on the basis of the evidence already on record and the further evidence which the parties may adduce before the trial court. The parties shall appear before the trial court on 13/07/2009. There is no appearance for the first respondent before this court. Therefore, the lower court shall on receipt of the records issue summons to the first respondent to appear before that court. The trial court shall dispose of the matter as early as possible, but not later than six months from the date of receipt of the copy of this judgment. Send the records to Lower Court within a week. P.Q.BARKATH ALI JUDGE sv. Crl.A.No.45/03 6