E.K. Kunhammed Kutty v. K.V. Abdulla and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** ## **WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933** ## **CRA.No. 392 of 2002 ( )** ## **----------------------AGAINST THE ORDER/JUDGMENT IN ST.940/1999 of J.M.F.C.-I, KOZHIKODE** **------------** ## **APPELLANT(S)/COMPLAINANt :-** **----------------------------** **E.K.KUNHAMMED KUTTY,S/O.ABDULLA, SI FLAT,CHINTHA VALAPPU,RAM MOHAN ROAD CALICUT.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT(S)/ACCUSED AND STATE:** **--------------------------------** **1. K.V.ABDULLA S/O.MOIDEEN, 'BABY'S** - **P.P.HASSAN KOYA ROAD,NAGARAM AMSOM DESOM, KOZHIKODE.** **2. STATE OF KERALA,REPRESENTED BY THE** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **R1 BY SRI.P.R.SREEJITH PUBLIC PROSECUTOR SMT.V.H.JASMINE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.A. No.392 of 2002 -----------------------------Dated this the 11[th] day of January 2012** ## **J U D G M E N T** The complainant is in appeal. He filed a complaint under Sec.138 of N.I.Act The accused thereunder was acquitted by the learned Magistrate under Sec.255(1) Cr.P.C. mainly on the ground that Ext.P1 cheque was issued to discharge a time barred debt. Cheque was issued on 31.12.1998. It was stated that an agreement was entered into between the complainant and the accused as per which the complainant had agreed to purchase the property. That agreement was stated to be had on 29.12.1995. The property was not sold. There was some dispute with regard to the same. Ultimately, according to the complainant, the matter was talked over and the accused agreed to pay Rs.2,50,000/- to the complainant. On the date of the said settlement, Rs.1,50,000/- was paid directly to the Crl.A. No.392 of 2002 -: 2 :- complainant. For the balance amount of Rs.1 lakh Ext.P1 cheque was issued. When presented for encashment, it was bounced due to insufficiency of fund. On receipt of the dishonour memo, statutory notice was sent. It was acknowledged by the accused. But the money due was not paid. Hence, the complaint was filed. 2. The complainant got himself examined as PW1 and Exts.P1 to P7 were marked. The court below found that Ext.P7 agreement relied upon by the complainant was not duly proved and so the complainant cannot rely upon Ext.P7 to sustain his claim. According to the complainant, the first agreement with regard to the property is dated 29.12.1995. The cheque is dated 31.12.1998. The learned Magistrate found that the amount due under the transaction was barred by limitation and as such it cannot be held that Ext.P1 was issued in discharge of a legally recoverable debt. 3. Learned counsel for the complainant/appellant Crl.A. No.392 of 2002 -: 3 :- submits that the view taken by the court below is incorrect. The decision in **Joseph** v. **Devassia** [2000 (3) KLT 533] was overruled by the Division Bench in **Ramakrishnan** v. **Parthasaradhy** [2003 (2) KLT 613]. It was held by the Division Bench that when a person issues a cheque, he acknowledges his liability to pay. In the event of the cheque being dishonoured on account of insufficiency of funds, he will not be entitled to claim that the debt had become barred by limitation. As such the verdict of acquittal given by the court below is unsustainable and is thus set aside. 4. The next point to be considered is whether the evidence on record is sufficient to accept the complainant's case. The learned counsel for the accused would submit that the complainant has founded his case on Ext.P7 agreement. But Ext.P7 was not proved. The complainant did not say that Ext.P7 was signed by the accused in his presence nor did he say that he himself had signed on Ext.P7. No witness was also examined to prove the due Crl.A. No.392 of 2002 -: 4 :- execution of Ext.P7. Hence, the learned counsel submits that there is no proof of execution of Ext.P7 and if that be so the complainant cannot rest content by saying that the amount due to the complainant was under an agreement to sell the property as stated in the complaint. It is further argued that the fact that the accused did not mount the box cannot be a reason to hold that the case advanced by the complainant is true since the burden is on the complainant to prove the execution of the cheque and also passing of the consideration. Even though there is a presumption under Sec.139 of the N.I.Act, the complainant can bank upon that presumption only after due execution of the cheque is proved and proof of other circumstances where from the court can deduce the passing of consideration, the learned counsel for the accused submits. 5. The aforesaid submission is resisted by the learned counsel for the complainant pointing out that though PW1 was cross examined in extenso with regard to Crl.A. No.392 of 2002 -: 5 :- the execution of Ext.P7 no question was put to PW1 challenging the execution of Ext.P1. The only question put by the accused to PW1 is to the effect that the accused is not liable to pay the amount as per Ext.P1. In other words, the factum of execution of Ext.P1 was not denied by the accused. There was no case that Ext.P1 does not contain his signature nor did he offer any explanation as to how his signed blank cheque leaf reached the hands of the complainant. Though execution of Ext.P7 has not been proved, the allegation pertaining to Ext.P7 was mentioned in the complaint only to explain the circumstances under which Ext.P1 happened to be issued by the accused. In view of the fact that the execution of Ext.P1 was not seriously challenged by the accused, now it is not open to him to contend that he is not liable to pay the amount covered thereunder. In view of these circumstances, the fervent request made by the learned counsel for the accused is that an opportunity may be given to him to Crl.A. No.392 of 2002 -: 6 :- adduce evidence on his side and for that purpose the case may be remanded to the trial court. But that plea not appeal to me. 6. It is pertinent to note that when statutory notice was sent, the accused failed to send any reply. Even though non-sending of reply itself may not be a reason to doubt the case of the accused, still, as that was the earliest opportunity for the accused to explain the circumstances and when that was not done, that also would be a circumstance which may go against the case advanced by the accused. In these circumstances, I find that the request for remand cannot be entertained. The evidence on record is sufficient to prove due execution of Ext.P1. Since all other statutory formalities are seen complied with, the conviction must necessarily follow. In the result, this appeal is allowed. While reversing the order of acquittal passed by the learned Magistrate, first respondent/accused is found guilty of the Crl.A. No.392 of 2002 -: 7 :- offence punishable under Sec.138 of N.I.Act and he is convicted thereunder. He is sentenced to undergo imprisonment till the rising of the court and to pay Rs.1,00,000/- as compensation to the complainant. The accused/first respondent will surrender before the learned Magistrate on or before **8.3.2012** to undergo imprisonment till the rising of the court and to deposit the amount of compensation as mentioned above. **N.K.BALAKRISHNAN, JUDGE.** Jvt