High Court of KeralaSingle Judge2011-08-19Appeal allowed; convicted under Sec. 138 NI Act...

Abdul Kharim v. M.A. RAZAQ and State of Kerala

Case / Petition Number:CRL.A.No.2042 of 2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N.K. Balakrishnan
Judgment Date: 2011-08-19
Court Decision / Holding: Appeal allowed. The accused/first respondent is found guilty of the offence under Sec. 138 of the N.I. Act and convicted thereunder. He is sentenced to pay a fine of Rs. 10,000 and, in default, to undergo SI for 15 days. The fine must be paid within one month from today.
Final Disposition: Appeal allowed; convicted under Sec. 138 NI Act; fine Rs. 10,000; SI 15 days; payment within one month.

Parties to the Case

Appellants / Petitioners

ABDUL KHARIM, S/O. SULTHANPILLA, SEENA MANZIL, ALANTHARA, KOTTUKUNNAM DESOM, NELLANADU VILLAGE.

Respondents

M.A RAZAQ, THEMBAKALA VEEDU, THEMBAMMOODU, PULLAMPARA VILLAGE
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL HIGH COURT BUILDING, ERNAKULAM, KOCHI-31.

Legal Representation & Advocates

Counsels for Petitioners

• Sri Pirappancode V.S. Sudhir

Counsels for Respondents

• Sri K.C. Charles
• Sri A. Rajagopalan
• Sri ALEX M. Thombra

Case Synopsis & Summary

This is a criminal appeal under Section 138 of the Negotiable Instruments Act filed by Abdul Kharim, the complainant, challenging the acquittal of M.A. RAZAQ by the Judicial Magistrate of First Class, Attingal, under Section 255(1) Cr.P.C. The appellant alleged that in a contract to slaughter rubber trees on a 4-acre plot owned by the accused, the parties agreed a value of Rs 3,05,000 for the trees, with an advance of Rs 5,000 already paid. Upon survey, the number of trees was found to be 636 instead of 800, leading the complainant to demand a reduction in price, which the accused reportedly did not grant; however, the accused allegedly agreed to repay the advance and cover the complainant’s expenses, including interest. Ext. P1, a cheque for Rs 12,500, was issued and subsequently dishonoured with “payment stopped by the drawer.” Statutory notice was issued; the accused denied liability. The defence claimed Ext. P1 was obtained by coercion, with the accused alleging knife-point threat, while the complainant contended Ext. P1 was prepared by the accused free of coercion. The trial court acquitted the accused. On appeal, the High Court found Ext. P1 supported by consideration, held the evidence did not establish coercion, and thus reversed the acquittal. The court convicted the accused under Sec. 138 NI Act, sentencing him to a Rs 10,000 fine and SI for 15 days, with payment within a month.

Provisions of Law Cited

Section 138 of the Negotiable Instruments ActSection 255(1) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant submitted that there was a clear agreement to slaughter rubber trees on about 4 acres for Rs. 3,05,000, with Rs. 5,000 paid as advance. When the number of trees appeared to be 636 instead of 800, the complainant sought price reduction, which the accused refused, yet agreed to repay the advance and reimburse expenses including interest. Ext. P1 for Rs. 12,500 was issued; it was dishonoured. The defence claimed Ext. P1 was obtained by coercion and that the stop memo indicates a pretext to evade liability. The appellant relied on Rangappa v. Mohan to argue that the stop memo cannot nullify liability, but contends Ext. P1 shows free and voluntary execution. The court assessed the credibility of the accused’s version, found Ext. P1 supported by consideration, and held 255(1) Cr.P.C. to be inadequate to overturn the instrument’s liability.

Contentions of Respondents

The respondents contended that Ext. P1 was obtained under threat and that the accused attempted to avoid liability by stopping payment. They argued that the agreement to slaughter the trees did not manifest any fixed number or price that would validate Ext. P1 as a payment instrument. The defence further asserted that the accused, being an advocate, kept funds in his account to mislead proceedings and that the matter should be resolved in favor of the State and the complainant. They relied on the evidence of DW1 and DW2 and the bank’s records to show coercion or possible manipulation, contending that the acquittal should be reversed.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rangappa v. Mohan	2010 (2) KLT 682 (SC)	Mentioned Only	Cited by the appellant to argue that stopping payment cannot defeat liability under Sec. 138; the court discusses the proposition but does not adopt or distinguish it to reverse the conviction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933** **CRL.A.No. 2042 of 2005()** **-----------------------AGAINST THE JUDGEMENT/ORDER IN CRLP.642/2005 Dated 09/11/2005 ST.1816/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL** **....................** **APPELLANT(S)/COMPLAINANT :-** **-----------------------------------------------** **ABDUL KHARIM, S/O. SULTHANPILLA, SEENA MANZIL, ALANTHARA, KOTTUKUNNAM DESOM, NELLANADU VILLAGE.** **BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** **RESPONDENT(S)/ACCUSED :-** **-----------------------------------------** **1. M.A RAZAQ, THEMBAKALA VEEDU, THEMBAMMOODU, PULLAMPARA VILLAGE.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCAT GENERAL HIGH COURT BUILDING, ERNAKULAM, KOCHI-31.** **ADV. SRI.K.C.CHARLES FOR R1 SRI.A.RAJAGOPALAN FOR R1 PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.A.No.2042 of 2005 --------------------------------Dated this the 19[th] day of August 2011** ## **J U D G M E N T** The complainant is the appellant. His complaint against the first respondent was under Sec.138 of the Negotiable Instruments Act. The learned Magistrate acquitted the accused under Sec.255 (1) Cr.P.C. 2. The case of the complainant is that he is a contractor engaged in slaughtering of rubber trees in the property of the accused measuring an extent of 4 Acres for a total sum of Rs.3,05,000/-. Rs.5,000/- was paid by the complainant to the accused as advance. According to the complainant, when he went to the property and numbered the trees, there were only 636 rubber trees instead of 800 trees, which according to the accused were the total number of trees available in his property to be slaughtered. 3. According to the complainant, since there was Crl.A.No.2042 of 2005 -: 2 :- vast difference in the number of trees available, he wanted the accused to reduce the amount payable by him for slaughtering the trees. This was not agreed to by the accused. However, the accused agreed to repay the amount of Rs.5,000/-. According to the complainant the accused agreed to pay the amount incurred by the complainant as expenses which includes the interest payable by him to the person from whom he was stated to have borrowed the money. Thus, Ext.P1 cheque for Rs.12,500/- was issued by the accused. When the cheque was presented for collection, it was returned with the endorsement, 'payment stopped by the drawer'. Statutory notice was sent by the complainant. Reply was sent by the accused denying the liability. As the amount was not paid, the complaint was filed. 4. The complainant got himself examined as PW1 and Exts.P1 to P6 were marked. The accused and the Manager of the Bank were examined as DW1 and DW2 and Crl.A.No.2042 of 2005 -: 3 :- Exts.D1 to D6 were marked. After analysing the evidence, the learned Magistrate acquitted the accused under Sec.255(1) Cr.P.C. 5. The learned counsel for the appellant/complainant submits that on going through the evidence given by the complainant as PW1, it can be found without any difficulty that there was an agreement between the complainant and the accused with regard to the slaughtering of rubber trees from the property of the accused measuring an extent of about 4 Acres. There was no serious dispute regarding the fact that the amount originally agreed to be paid by the complainant to the accused towards value of the rubber trees to be slaughtered was Rs.3,05,000/-. But the accused would contend that it was not at all stated that the number of trees available in his property or agreed to be cut and removed was 800 and as such the contention that the actual number of trees available in the property was only 636 and so there was a request for reduction of the amount payable Crl.A.No.2042 of 2005 -: 4 :- by the complainant to the accused cannot be sustained. It is further submitted by the learned counsel for the accused that in evidence it was admitted by DW1 that he had received a sum of Rs.5,000/- from the complainant as advance, but he says, that amount was repaid by him to the complainant. 6. The case of the accused is that Ext.P1 was obtained by the complainant by threatening him at knife point, when he alone was in the house and as such Ext.P1 is vitiated by coercion and hence it is invalid and inoperative. This contention is resisted by the learned counsel for the complainant stating that though it was stated by the accused before the learned Magistrate that a complaint was filed by him by DW1- who is an advocate having more than 30 years of practice, he has not chosen to produce documents to show that the complaint filed by him was taken on file by the learned Magistrate. The learned counsel for the complainant would further submit that the Crl.A.No.2042 of 2005 -: 5 :- accused being an advocate, who knows very well that if the cheque is dishonoured due to insufficiency of fund he is likely to be prosecuted for the offence under Sec.138, he has chosen to send a stop memo to the bank and at the same time keeping sufficient amount in his account to honour the cheque to make it appear that the dishonour was on some other ground. Therefore, according to the complainant, the accused has adopted a clever advice to avoid the prosecution by keeping sufficient amount in his credit at the time of sending the stop memo. 7. The learned counsel for the complainant has relied upon the decision of the Apex Court in **Rangappa** v. **Mohan** [2010 (2) KLT 682 (SC)] to strengthen his submission that the accused cannot avoid liability under Sec.138 of the N.I.Act by issuing a stop memo making sufficient amount in his credit. Now the crucial question is whether the evidence given by DW1 that Ext.P1 cheque was issued as he was threatened by the complainant is Crl.A.No.2042 of 2005 -: 6 :- acceptable. The learned counsel for the complainant would submit that just a perusal of Ext.P1 would make it clear that it was filled up by the accused in his own handwriting without being threatened or intimidated by anybody. In other words, according to the complainant, Ext.P1 was executed by the accused out of free will and volition and as such it is not vitiated on any of the grounds as alleged by the accused. 8. After survey of the entire evidence, the contention by the defence that Ext.P1 is vitiated on the grounds as stated earlier is found to be unsustainable. Since it is in evidence that he paid Rs.5,000/- as advance and that the complainant had spent some amount for numbering the trees and also to pay interest for the amount obtained by him from the financier, I find that the cheque was supported by the consideration as well. All the statutory requirements are seen duly complied with. Hence the finding entered by the learned Magistrate is liable to be interfered with. The Crl.A.No.2042 of 2005 -: 7 :- accused is proved to have committed the offence punishable under Sec.138 of the N.I. Act. In the result, this appeal is allowed. The accused/first respondent is found to be guilty of the offence punishable under Sec.138 of the N.I. Act and he is convicted thereunder. He is sentenced to pay fine of Rs.10,000/- and in default to undergo S.I. for 15 days. The accused/first respondent will pay the fine amount within one month from today. **N.K.BALAKRISHNAN, JUDGE.** Jvt