## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE K.HARIPAL**
**THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942**
## **CRL.A.No.156 OF 2011**
**AGAINST THE JUDGMENT IN ST 154/2007 DATED 13-10-2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM**
## **Crl.L.P. 1210/2010 DATED 06-01-2011 OF HIGH COURT OF KERALA**
## **APPELLANT/COMPLAINANT:**
**ANIL VINCENT, AGED 45 YEARS JERALD BHAVAN, SAKTHIKULANGARA.P.O., KOLLAM.**
**BY ADVS. SRI.V.JAYAPRADEEP SMT.SADHANA KUMARI ESWARI**
## **RESPONDENTS:**
**1 MANOJ THOMAS, AGED 39 YEARS DIL SHANOJ, JAWAHAR NAGAR, O'STREET,, THIRUVANANTHAPURAM-695003.**
**2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031**
**R1 BY ADV. SRI.SERGI JOSEPH THOMAS R2 BY SRI. M.S.BREEZ, SENIOR PUBLIC PROSECUTOR**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2021, THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:**
Crl.Appeal No. 156 of 2011 2
## **JUDGMENT**
This is an appeal filed under Section 378(4) of the Criminal Procedure Code, hereinafter referred to as the Cr.P.C., preferred by the complainant in S.T. No. 154/2007, on the file of the Judicial First Class Magistrate - II, Kollam. That complaint was preferred on 22.11.2006 alleging offence punishable under Section 138 of the Negotiable Instruments Act. The subject matter of the complaint is three cheques, drawn on Thiruvananthapuram Main Branch of the Indian Bank, bearing Nos. 428895 dated 02.09.2006, 428898 dated 22.09.2006 and 428899 dated 14.09.2006, all for Rs. 44,200/-. The complainant and accused are sea food merchants. According to the complainant, he collects raw sea food from the fishermen and sells to agents like the accused, who in turn sells the items to exporters. The subject cheques were issued at his house in connection with the fish trade, in discharge of liabilities outstanding from the accused.
2. The cheques were presented for collection through Maruthadi branch of the Central Bank of India. But it were returned unpaid on 05.10.2006, with the endorsement 'account closed'. Thereafter, through
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the lawyer notice, the accused was alerted and was called upon to pay the amount. Though notice was served on the accused, he did not respond nor the amount was paid and thus the complaint was filed. On summons, the first respondent accused entered appearance and pleaded not guilty. The complainant himself and an independent witness were examined as PWs 1 and 2. Exts. P1 to P6 were also marked. After closing the prosecution evidence, when examined under Section 313(1)(b) of the Cr.P.C., the accused denied the incriminating materials. According to him, the cheques were issued as security in connection with the business between the parties. In other words, he maintained that the cheques are not supported by consideration. There was no oral evidence in defence. However, the judgment of the Judicial First Class Magistrate – II, Kollam dated 29.01.2010 in S.T. No. 288/2007, between the parties was produced and marked as Ext.D1. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found that the cheques are not supported by consideration, that the defence version is more probable. On that premise, the accused was found not guilty and acquitted under Section 255(1) of the Cr.P.C. Aggrieved by the said finding, the complainant moved this Court, obtained Special Leave
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and preferred this appeal.
3. I heard the learned counsel for the appellant and also the learned counsel for the first respondent.
4. Relying on the decision reported in **APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Others [AIR**
**2020 SC 945]** , the learned counsel pointed out that even if the cheques were issued as security, the plea of innocence will not sustain so long as the first respondent has admitted that the cheques were issued by him. The learned counsel also pointed out that the appellant could prove the execution of the cheques and therefore, the statutory presumptions have to be drawn in favour of the appellant; the first respondent did not rebut the presumption. The learned counsel also argued that the first respondent did not send a reply to the lawyer notice nor did mount the box for the purpose of probabilising his case.
5. On the other hand, according to the learned counsel for the first respondent, the question of rebutting the presumption available in favour of the complainant arises only if the execution of the cheques is admitted or proved. Here, the transactions were not as claimed by the appellant. The complaint and the evidence tendered by the appellant are lacking in particulars of the transaction. The versions with regard
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to the place where the cause of action had arisen also differs. Such a presumption will be available only if it is proved that the cheques were issued in discharge of a legally enforceable debt or liability. The appellant has admitted that the cheques were obtained two years before. According to the learned counsel, there is absolutely nothing to interfere with the finding in question.
6. The appellant gave evidence as PW1 and proved Exts.P1 to P6 documents. PW2 is another fish merchant. He does not have any idea about the transaction in question. He was examined only to speak the practices prevalent in the fish trading market.
7. Admittedly, Ext.P1 series cheques belonged to the first respondent. He has not disputed his signatures also. Even though he did not respond the lawyer notice nor did tender oral evidence in defence, during his examination under Section 313 of the Cr.P.C, he has stated that the subject cheques were issued as security during the fish trade transactions made by him with the appellant.
8. PW1 has also admitted before the Court that Ext.P1 series cheques were obtained by him two years prior to the date of presentation. According to him, the cheques were handed over to him at the office of the first respondent. But in the complaint, it was stated
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that the cheques were issued at his residence. Similarly, there is substance in the argument of the learned counsel for the first respondent that the complaint and also the statement of the appellant as PW1, do not contain the particulars of the transaction. Whatever it may be, it is very evident from the admission of PW1 that the cheques were obtained two years prior to the date of presentation.
9. The three ingredients to attract the offence under Section 138 of the Negotiable Instruments Act are that there was a legally enforceable debt, that the cheque was drawn from the account of the banker for discharge, in whole or part of any debt or liability which presupposes a legally enforceable debt and that the cheques so issued had been returned due to insufficiency of funds. In order to draw the presumption available in favour of the appellant under Section 118 and 139 of the Negotiable Instruments Act, it must be admitted or proved that the cheques were issued by the first respondent in discharge of a legally enforceable debt or liability. Here, the first respondent has not admitted the allegations. Now, the question is whether the appellant could prove that Ext.P1 series were issued in discharge of a duly enforceable debt or liability. But the materials brought out in evidence are sufficient to give an answer in the
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negative. As noticed earlier, the appellant has admitted that the cheques were issued two years before the date of presentation.
10. Secondly, through the Ext.D1 judgment in S.T.No. 288/2007, the learned Magistrate could very much expose the hollowness of the claims of the appellant. That case related to issuance of cheque Nos. 428897 dated 23.08.2006 and 428896 dated 20.08.2006, both for Rs. 44,200/-. Those cheques were shown dishonored on 12.09.2006. Thus the learned Magistrate has rightly noticed that it is improbable that after dishonoring two such cheques on 12.09.2006, the appellant had accepted, at least two cheques dated 14.09.2006 and 22.09.2006 in Ext. P1 series.
11. Moreover, the proviso to Section 138 of the Negotiable Instruments Act stipulates that the following conditions should be complied with enabling the payee or the holder in due course to initiate action under the Act:
a) The cheque has been presented to the bank within a period of six months (prior to 01.04.2012 which is applicable in the present case) from the date on which it is drawn or within the period of its validity, whichever is earlier;
b) A demand has been made by the payee by a registered
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notice within a period of thirty days of the receipt of information from the bank and
c) The drawer fails to make the payment within a period of 15 days from the date of receipt of said notice.
12. Here it has come out in clear terms that the cheques were handed over two years prior to the date of presentation. In other words, it was not presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier. This aspect cuts the very root of the case of the appellant.
13. After revisiting the evidence, the learned counsel for the appellant could not persuade this Court to take a different conclusion. Though the learned counsel made a faint prayer for making a remand, in the circumstances that would be an idle exercise. The appellant could not prove that the subject cheques were issued in discharge of a duly enforceable debt or liability. There is no reason to interfere with the finding in question. This appeal is only to be dismissed.
Dismissed.
Sd/-
**K.HARIPAL JUDGE**
DCS/18.03.2021
