T. Devayani v. State of Kerala and Secretary, Ernad Primary Agricultural Development Bank

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 620 of 2007() ----------------------------CRA.164/2005 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI ST.134/2001 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------- T.DEVAYANI, D/O. PARVATHY AMMA, MALAKKLAMPATTA HOUSE, CHEMRAKATTU, AREACODE. BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM SMT.MABLE.C.KURIAN RESPONDENT(S): RESPONDENTS/STATE/COMPLAINANTS ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SECRETARY, ERNAD PRIMARY AGRICULTURAL DEVELOPMENT BANK, MELAKKARA P.O., KRUVAMBRAM, MANJERI. ADV. SRI.P.N.RAVINDRAN SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SRI.JAYKAR.K.S. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON 05/12/2008 PASSED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR,J.** =========================== Crl.R.P. NO.620 OF 2007 =========================== Dated this the 5[th] day of December,2008 ORDER Revision petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act by the Chief Judicial Magistrate, Manjeri. Second respondent is the complainant. Case of the second respondent is that T.K. Prakash son of the revision petitioner is a debtor to second respondent co-operative bank and for realisation of the amount due, E.P.2599/2000 was initiated and when the mortgaged property was put up for sale, revision petitioner on behalf of her son furnished Ext.P1 letter along with Ext.P2 cheque for Rs.50,000/- requesting to adjust the amount towards the amount due from her son and to postpone the sale proceedings. It was contended that when Ext.P2 cheque was presented for encashment, it was dishonoured for want of sufficient funds and inspite of Ext.P5 notice CRRP 620/2007 2 demanding the amount, it was not paid and she thereby committed the offence. Petitioner pleaded not guilty. Secretary of the second respondent Bank was examined as PW1 and Exts.P1 to P11 including the bye-law (Ext.P11) of the Bank were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found the petitioner guilty. She was convicted and sentenced to simple imprisonment for three months in addition to a fine of Rs.60,000/- and in default simple imprisonment for three months with a direction to pay Rs.55,000/- out of the fine to second respondent when realised. Petitioner challenged the conviction and sentence before Sessions Court, Manjeri in Crl.A.164/2006. Learned Sessions Judge on reappreciation of evidence confirmed the conviction as well as the sentence. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner and second respondent were heard. 3. Learned counsel argued that neither the CRRP 620/2007 3 learned Chief Judicial Magistrate nor learned Addl. Sessions Judge appreciated the evidence in the proper perspective. It was pointed out that even according to second respondent, petitioner is not a debtor of the second respondent Bank and she has no liability to discharge any debt or liability to the Bank and the case of the second respondent is that towards the amount due from the son of the revision petitioner, Ext.P2 cheque was issued and as it is admitted case that there was no liability on the part of the revision petitioner, no offence under section 138 is attracted. It was argued that even after issuance of Ext.P2 cheque, second respondent had proceeded to recover the entire amount due from the son of the revision petitioner by proceeding against the mortgaged property and evidence of PW1 establishes that to transfer liability of the son to the mother, there should be a decision of the Board of Directors of the Bank and there is no such decision and therefore legally there is no liability or debt to be discharged by the revision CRRP 620/2007 4 petitioner and hence the conviction is not sustainable. Reliance was placed on the decision of a learned single Judge of High Court of Madras ## in **Subburam v. Raja Guru (2008(1) KLT SN 30).** 4. Learned counsel appearing for second respondent argued that under Ext.P1 letter revision petitioner undertook to clear the liability of her son to the extent of Rs.50,000/- and sought adjournment of the sale which was granted by the second respondent and therefore there is a liability for the revision petitioner and Ext.P1 was issued to discharge the liability and hence the conviction is sustainable. 5. It is the admitted case that revision petitioner is not a member of second respondent Bank. She is not a debtor. The specific case of the second respondent in the complaint as well as when PW1 was examined was that, the son of revision petitioner borrowed amount from the Bank and executed a mortgage deed and for non-payment of the amount due, proceedings for sale of the CRRP 620/2007 5 mortgaged property was initiated. Evidence of PW1 establish that if the liability of a debtor to the Bank is to be transferred to another member or another individual even to the mother that is to be approved by the Board of Directors of the Bank and the Board of Directors did not decide to transfer the liability of the son of the revision petitioner to the revision petitioner either wholly or in part of the liability created under the mortgage deed. It is also admitted case that second respondent is proceeding to recover the entire amount due from the son of the revision petitioner and thereby did not recognise the liability of the revision petitioner. Therefore on the evidence it is clear that revision petitioner has neither a debt nor any debt or liability to be discharged, as against the second respondent. The question is whether in such circumstance, Ext.P2 cheque even if issued by the revision petitioner and dishonoured for want of sufficient funds, would attract an offence under section 138 of Negotiable CRRP 620/2007 6 Instruments Act. 6. To attract an offence under section 138, the cheque is to be drawn by the revision petitioner on an account maintained by her to the second respondent for “the discharge in whole or in part of any debt or other liability.”. When admittedly revision petitioner has no debt or liability to be discharged even if the cheque was issued by the revision petitioner and it was subsequently dishonoured for want of sufficient funds, an offence under section 138 cannot be attracted. Almost an identical case was considered by a learned single Judge of the High Court of Madras in Subburam's case (supra). It was a case where towards the amount due from the brother, a cheque was issued by the another brother, which was dishonoured, and based on the dishonoured cheque and failure to pay the amount on demand in writing, proceedings under section 138 of Negotiable Instruments Act was initiated. Learned single Judge held that legally the brother who issued the CRRP 620/2007 7 cheque cannot be compelled to pay the amount and therefore there is no legally enforceable debt or liability against the drawer of the cheque and hence an offence under section 138 of Negotiable Instruments Act is not attracted. 7. Eventhough second respondent contended that revision petitioner issued Ext.P1 cheque towards discharge of the liability of her son, revision petitioner has not admitted the case that she issued the cheque. When revision petitioner did not admit the issuance of the cheque, it is for the second respondent to prove that the cheque was issued by the revision petitioner and it was issued in discharge of a debt or liability. The presumption provided under section 139 of Negotiable Instruments Act could be drawn, only in a case where the execution and issuance of the cheque is admitted or proved. Though Ext.P1 letter was pressed into service to prove that it was issued by the revision petitioner, evidence of PW1 shows that he did not see revision petitioner CRRP 620/2007 8 writing Ext.P1 or affixing her signature therein. Similar is the case with the issuance of Ext.P2 cheque. There is no case for PW1 that either revision petitioner filled up Ext.P2 cheque in his presence or affixed her signature therein in his presence. Therefore even issuance of Ext.P2 cheque was not proved. Therefore the presumption available under section 139 of Negotiable Instruments Act cannot be availed of by second respondent to prove that Ext.P2 cheque was issued in discharge of a debt or liability. That aspect is to be independently proved by the second respondent. Evidence of second respondent establish that there was no debt or liability to be discharged by the revision petitioner. Therefore even if the cheque was signed by the revision petitioner, by its dishonour no offence under section 138 is attracted. Conviction of the petitioner for the offence under section 138 of Negotiable Instruments Act is not sustainable. Second respondent is at liberty to realise the CRRP 620/2007 9 amount due from the son of the revision petitioner. Revision is allowed. Conviction of the petitioner in S.T.134/2001 by the Chief Judicial Magistrate, Manjeri as confirmed in Crl.A.164/2006 by Additional Sessions Judge is set aside. Revision petitioner is found not guilty of the offence. The bail bond stands cancelled. Revision petitioner is acquitted and is set at liberty. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006