IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 90 of 2001()
1. KOMALAM GOPI
... Petitioner
Vs
1. T.K.MOHANKUMAR
... Respondent
For Petitioner :SRI.N.K.MOHANLAL
For Respondent :K.B.SURESH [DELAY]
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :22/08/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
-------------------------------------------
Crl.R.P.No.90 OF 2001
-------------------------------------------
Dated this the 22nd day of August, 2008
O R D E R
This revision is by the accused in a case taken cognizance
of on the basis of a private complaint alleging offences
punishable under Section 138 of the Negotiable Instruments Act.
The trial court convicted the accused and sentenced her to
undergo rigourous imprisonment for six months and to pay fine
of Rs.60,000/-. The court of session allowed her appeal on the
question of sentence, modified it and sentenced her to pay a fine
of Rs.60,000/-, in default of which, to undergo simple
imprisonment for two months. Out of the fine amount collected,
an amount of Rs.45,000/- was to be paid to the complainant as
compensation.
2. The allegation against the petitioner was that she and her
husband informed the complainant that employment opportunity
is available in the Cochin Port Trust that could be obtained for
her, for which purpose, an amount of Rs.45,000/- has to be paid
Crl.R.P.90/01
Page numbers
to the accused. Believing those words, the complainant parted
with that amount and paid it to the accused and her husband by
borrowing it from the relatives of the complainant. No job was
secured as agreed. The complainant wanted return of money.
With the intervention of mediators, a cheque dated 31.10.1992
for an amount of Rs.45,000/- was issued by the accused in favour
of the complainant. On presentation, that cheque was returned
with the endorsement “payment stopped by the drawer” and that
on enquiry, it was revealed that the accused did not have
sufficient funds in her account to honour the cheque. Though
the accused received the statutory notice, a reply was sent
stating only that the cover contained only a blank paper.
Alleging non-payment of the fund covered by the cheque, a
complaint was instituted. The Additional Chief Judicial
Magistrate took cognizance of the sworn statement of the
complainant on record. At trial, the complainant gave evidence
as PW1. PW2 spoke of the entrust of money by the complainant
to the accused. PW3, an officer of the bank, spoke in relation to
Crl.R.P.90/01
Page numbers
the cheque and its dishonour and also that from Ext.P5, the
balance outstandings in the account of the accused was only
Rs.50/- and that the accused had written to the bank stopping
payment of Ext.P1 cheque.
2. The essential ingredients of the issuance of the cheque, its
presentation and dishonour not being in dispute and having been
proved on the basis of legal evidence, the consideration of the
court of first instance focused on the defence version regarding
the transaction. DW1, the Assistant Manager of the Syndicate
Bank, Kalamassery where the petitioner had the S.B. Account;
DW2, one Watson Titus; DW3, one Lalan; DW4, Gopi, husband of
the accused and DW5, the accused were examined on the side of
the defence. The version attempted to be projected by the
defence was that the account itself was opened at the instance of
the complainant and utilising the amount given by him on the
basis of the evidence of PW4, the husband of the accused and
DW5, the accused. The court of first instance, as also the court
Crl.R.P.90/01
Page numbers
of session, concluded that the receipt of the amount of
Rs.45,000/- and the issuance of the cheque by the complainant to
discharge that liability cannot be disputed.
3. The short issue that ultimately raises for decision is as to
whether the issuance of Ext.P1 cheque by the accused could be
treated as one in discharge of a liability. The argument
advanced on her behalf is that there was no debt or liability that
the accused owe to the complainant and debt, if any, was that of
her husband, DW4. It needs to be noticed that Section 138 of
the N.I. Act comes into play in relation to cheques issued by a
person to another person for the discharge, in whole or in part,
of any debt or other liability. The explanation at the foot of that
section provides that “debt or other liability” means a legally
enforceable debt or other liability. Neither does that
explanation, nor the charging provision in Section 138 confines
its operation to be only in relation to cases where cheques are
issued in discharge of debt or liability of the person issuing the
Crl.R.P.90/01
Page numbers
cheque. The law provides for discharge of debt by a person,
even if it is a debt of another. Such transactions, where one
discharges debt of another, is an instance of discharge of debt or
other liability. If ‘A’ discharges a legally enforceable debt or
other liability of ‘B’, by making a payment to ‘C’, then, if that is
done by ‘A’ issuing a cheque to ‘C’, it becomes a cheque issued in
discharge of the legally enforceable debt or other liability of ‘B’
and is therefore, debt or other liability for the purpose of Section
138 of the N.I. Act. So much so, the arguments on behalf of the
accused that she issued the cheque for discharge of liability of
her husband DW4 would not save her from the penal provision of
Section 138 of the N.I. Act.
4. On to the question of sentence, the court of session has
been extremely benevolent in vacating the sentence of
imprisonment and imposing only a sentence of fine with a default
sentence of simple imprisonment.
Crl.R.P.90/01
Page numbers
For the foregoing reasons, I find no ground to interfere
either with the conviction or sentence. The revision petition
fails. The same is accordingly dismissed. The accused will
appear before the court of first instance on 31.10.2008 to suffer
sentence. Otherwise, the appropriate court will take necessary
steps for due execution of the sentence.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.26/8.
Crl.R.P.90/01
Page numbers
=======================
THOTTATHIL B. RADHAKRISHNAN, J
Crl.R.P.NO.90 OF 2001
O R D E R
22nd AUGUST, 2008.
=======================