Subhadra G. v. Manoharan K. & State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 ## CRL.A.No. 113 of 2001(A) ----------------------------------------- CC.540/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... ## APPELLANT/COMPLAINANT: SUBHADRA.G., SUBHADRA BHAVAN, T.C.16/1160, KARAKKADU, JAGATHY, THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL ## RESPONDENTS/ACCUSED & STATE: 1. MANOHARAN.K.,S/O KESAVAN, P6-17/5, SECTOR 5, NEW PANEL P.O.MUMBAI PIN 410 206. ## 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.THOMAS ABRAHAM ## SRI.K.B.ARUNKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 113 of 2001 --------------------------- ## **JUDGMENT** Appeal is with leave filed against the acquittal of the accused. 2. The appellant was the complainant in C.C.No. 1003/98 on the file of the Chief Judicial Magistrate's Court, Thiruvananthapuram. He filed the said complainant complaining of commission by the first respondent of an offence punishable under Section 138 of the Negotiable Instruments Act. The complaint is that the first respondent borrowed an amount of Rs.3,45,000/- from her and in discharge of that debt, he issued Exhibit P1 cheque dated 18.12.1997 for Rs.3,45,000/-, drawn on the State Bank of Travancore, Jagathy Branch, Thiruvananthapuram at her residence at Jagathy and on presentation of the said cheque for encashment, it was dishonoured by the drawee Bank under Exhibit P2 memorandum assigning the reason “funds insufficient”; that thereupon, the original of Exhibit P3 notice was CRA 113/01 2 caused to be issued through Lawyer intimating him of dishonour of the cheque and demanding payment of the amounts covered by the cheque; that the said notice was accepted by the first respondent under Exhibit P3(b) postal acknowledgment card, but that he caused Exhibit P4 reply notice to be issued through Lawyer, setting up false contentions and has not cared to pay up the amounts covered by the cheque either within the statutory period or ever thereafter and thus, he has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. The case was made over to the Judicial First Class Magistrate's Court-V (Special Court for trial of Marklist Cases), Thiruvananthapuram for trial and disposal, where, it was re-numbered as C.C.No.540/98. 4. On appearance of the first respondent/ accused in the court below pursuant to issuance of summons, he was questioned by the learned CRA 113/01 3 Magistrate, 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 court below. On the side of the complainant, she tendered evidence as PW1 and got Exhibits P1 to P4 marked in evidence. On the complainant closing her evidence, the first 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. According to him, he has not received any amount from PW1 and he is not aware as to how Exhibit P1 cheque reached the hands of PW1 and further that as against him, the appellant (PW1) has filed a civil case as well on the basis of the very same cheque. He submitted that he has evidence to be adduced in defence. Hence, the case was posted for defence evidence. The first respondent, however, did not adduce any evidence in the court below by examining any CRA 113/01 4 witnesses, but got marked Exhibit D1 on his side, which is the copy of the plaint instituted by the appellant against him. 5. The court below heard arguments of both sides, considered the case in the light of the evidence adduced as aforesaid; found that Exhibit P1 cheque is not one issued in discharge of any debt or other liability and consequently, acquitted the first respondent under Section 255(1) Cr.P.C. of offence under Section 138 of the Negotiable Instruments Act. Hence this appeal. 6. It is vehemently contended before me by the learned counsel for the appellant that in Exhibit P4 reply notice, the case set up by the first respondent is that he had not borrowed any amount from the appellant, but that the first respondent was abducted by some persons and then he was forced to sign some blank cheque leaves and Exhibit P1 cheque is one among them; that the cheque was filled up according to their dictates, as he had no CRA 113/01 5 other option and it was not dated and that being the result of commission of an offence, he intends to prosecute the appellant and her henchmen for abduction and for using the cheque as genuine, but, no criminal case is filed. It is also contended by him that the accused has not entered the witness box to swear to the case so set up by him in Exhibit P4 reply notice or to the stand taken by him, when questioned under Section 313 Cr.P.C. Counsel further contends that the stand taken by the first respondent, when questioned under Section 313 Cr.P.C., that he is not at all aware as to how Exhibit P1 cheque reached the hands of the appellant, without saying anything at all about the allegations made in Exhibit P4 that he had been abducted by somebody and caused to sign certain blank cheque leaves, shows the inconsistency in his contentions and the false nature of defence taken by him and that such false contentions of the first respondent take us a long CRA 113/01 6 way to believe the case of the appellant that Exhibit P1 cheque was being issued to her by the first respondent in discharge of the debt due to her. No doubt, the arguments so advanced are highly appealing, but, for the presence of Exhibit D1 in evidence. 7. It is contended before me by the counsel for the first respondent that Exhibit D1 was being marked in the court below on consent that it is nothing, but attested copy of the plaint filed against the first respondent by the appellant on the basis of the very same cheque, namely, Exhibit P1 cheque and that the allegations therein would go to show that Exhibit P1 cheque is only one among several documents got executed by the appellant at the time of advancing the amount to the first respondent, even going by her own case and that therefore, the acquittal of the first respondent by the court below has only to be upheld. CRA 113/01 7 8. It is true that the contentions taken by the first respondent in Exhibit P4 reply notice and the stand taken by him, when questioned under Section 313 Cr.P.C., are inconsistent and one militates against the other and that the contentions of the first respondent cannot, but, be considered as false. But, all the same, the question is as to whether Exhibit P1 is a cheque issued in discharge of any debt or other liability to the appellant so as to attract Section 138 of the Negotiable Instruments Act. To appreciate that aspect, the averments in Exhibit D1 plaint filed by the appellant are highly relevant. 9. The allegations in Exhibit D1 plaint are that the first respondent is the brother-in-law of her husband Prabhakaran; that the first respondent borrowed an amount of Rs.3,45,000/- from her on 18.12.1997 as repayable loan and executed a promissory note in her favour on the same day, namely on 18.12.1997, agreeing to repay the said CRA 113/01 8 amount with interest at 12% per annum to her or to her order on demand; that on the same day the first respondent issued Exhibit P1 cheque dated 18.12.1997 for the same amount of Rs.3,45,000/drawn on the State Bank of Travancore, Jagathy Branch as security and also an agreement dated 18.12.1997 admitting the aforesaid borrowing of the amount and issuance of the aforesaid cheque. This shows that the transaction involved is a pure and simple money transaction, which has taken place on 18.12.1997 under a demand promissory note, though Exhibit P1 was also issued on the same day, namely on 18.12.1997. This means that Exhibit P1 cheque was not being issued in discharge of any debt, but as an additional security, there being already a demand promissory note executed by him on 18.12.1997, undertaking to repay the loan amount with interest at 12% per annum. 10. The further contention of the learned counsel for the appellant is that a cheque issued CRA 113/01 9 by way of security also is a cheque which falls within the purview of Section 138 of the Negotiable Instruments Act. He relied on the decision of this Court in **Venugopalan v. Moosa** (2004 (1) KLT 1079) and the decision of the Apex Court in **I.C.D.S. Ltd. v. Beena Shabeer** (2002 (3) KLT 218) in support of his contentions. In **I.C.D.S.'s case** (cited supra) the Apex Court was dealing with a case, where, a cheque has been issued by the guarantor by way of security and the case dealt with in **Venugopalan's case** (cited supra) is also a case of money having been advanced on the guarantee of a cheque. In the instant case, the cheque, the pro-note as also an agreement were being simultaneously got executed on the very same day of advancing the loan. When, on the same day, at the time of the loan transaction, more than one document, inter alia, a cheque is also so executed by the same person, along with execution of a pro-note and an agreement for the same loan transaction, that can be considered only CRA 113/01 10 as a document furnishing additional proof of the loan transaction evidenced by the pro-note and the agreement and the cheque, in the circumstances, cannot be considered either as one issued as a guarantee or as one issued in discharge of any debt or other liability and that cannot fall within the scope of a cheque envisaged under Section 138 of the Negotiable Instruments Act. The decisions cited have no application to the facts of this case. 11. It is true that it has been held by this Court in several decisions that a cheque issued by way of security also falls within the ambit of Section 138 of the Negotiable Instruments Act. It can very well be so in a case, where, loan transaction takes place on the understanding that it would be repaid in cash or in any other manner, entrusting the cheque also as a security to ensure the repayment. In the instant case, the loan transaction has taken place on 18.12.1997, CRA 113/01 11 executing a demand promissory note for the loan amount and on the same day Exhibit P1 was also being got executed simultaneously, which, no doubt, is two documents in relation to the very same money transaction. The cheque, thus, issued cannot attract the provisions of Section 138 of the Negotiable Instruments Act, as that is not a cheque issued in discharge of any debt or other liability. Further, it is worthy to note that Exhibit D1 plaint has been filed on the basis of the promissory note, producing also Exhibit P1 cheque and the agreement in enforcement of the liability of the first respondent and for recovering the debt from him. In the circumstances, filing a complaint of this nature, also against the first respondent, is nothing but a coercive tactics adopted by the appellant. Instances of such nature cannot invite punishment for offence under Section 138 of the Negotiable Instruments Act. The court below was rightly coming to the conclusion that, under the CRA 113/01 12 circumstances, the first respondent deserved an acquittal. There is no merit at all in this appeal and this appeal deserves only to be dismissed. In the result, I dismiss this criminal appeal. 1[st] February, 2008 (K.P.Balachandran, Judge) tkv CRA 113/01 13 K.P.Balachandran, J. --------------------Crl.A.No.113 of 2001 --------------------- ## **JUDGMENT** 1[st] February, 2008