IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 203 of 1999()
1. A.K.KALADHARAN
... Petitioner
Vs
1. T.M.ABDUL AZEES
... Respondent
For Petitioner :SRI.THOMAS CHAZHUKKARAN
For Respondent :SRI.PEEYUS A.KOTTAM
The Hon'ble MR. Justice J.M.JAMES
Dated :05/07/2006
O R D E R
J.M.JAMES, J.
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CRL.A.203/1999
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DATED THIS THE 5TH DAY OF JULY, 2006
JUDGMENT
The complainant, in C.C.No. 46/1996, on the
file of the Judicial Magistrate of First Class-II, Kochi, is the
appellant. He preferred a complaint, under Section 138 of
the Negotiable Instruments Act, in short ‘the Act’, against
the first respondent, accused, as Ext.P2 cheque issued by
him, for an amount of Rs.35,000/-, was dishonoured and
the accused did not settle the account, despite receipt of
Ext.P5 notice, informing the dishonouring of the cheque.
Hence the complaint was preferred.
2. The appellant examined two witnesses and
marked eight documents. DW1 was examined and Ext.D1
was marked by the accused, respondent. The trial Court
had dismissed the complaint on the grounds that Ext.P2
cheque was issued as a security, that the writings and
signature of Ext.P2 cheque are on different hands and also
that the details of the transaction had not been proved by
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the appellant, complainant.
3. On going through the records, the dishonour
of Ext.P2 cheque, issuing of Ext.P5 notice and receipt of
the same, as could be seen from Ext.P6 postal
acknowledgment card, and Ext.P7 reply notice are not
disputed. Therefore, the points enumerated above, as
grounds of dismissal by the trial Court have, alone to be
discussed in this appeal.
4. The findings of the Court below that Ext.P2
cheque was issued as a security and therefore, dishonour
of Ext.P2 does not attract Section 138 of the Act is not
sustainable in view of the decision of the Supreme Court
in I.C.D.S Limited v. Beena Shabeer(2002 (3) KLT 218
(SC) ), where the Court held that the issuance of the
cheque is not only for the discharge in whole or part of
any debt, but the same includes “other liability” as well.
The ‘other liability’ mentioned covers the issuance of the
cheque as security. Therefore, the findings of the Court
below on that point, is set aside. The above authority had
been followed by this Court in Mohana Pai v. Jabbar
Crl.A.203/1999
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(2005 (1) KLT 118).
5. The Apex Court held that once a cheque is
issued and dishonoured on presentation, because of the
presumption, available in favour of the holder of the
cheque in due course, under Section 118 as well as
under Section 139 of the Act, unless the same is
rebutted, the cheque has to be accepted as having
validly issued in discharge of a debt, due to the holder of
the cheque. (See K.N.Beena v. Muniyappan (AIR 2001
SC 2895). It is not necessary for the Court go through
the passing of the consideration covering the cheque
amount, unless presumption is rebutted. In this case,
there is no evidence adduced to show that the
presumption available under Sections 118 and 139 of the
Act are rebutted. Hence I hold that the learned
Magistrate went wrong in finding that the appellant had
not established regarding the transaction and passing of
the consideration in respect of Ext.P2 cheque amount.
Therefore, the said finding is also not sustainable.
6. Yet another finding of the Court below is that
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the writings in Ext.P2 cheque are of different hands.
The apex Court held that even if a blank cheque is issued
and the details therein, other than the signature of the
executant, were filled up by the complainant or anyone
else, unless the contends therein are rebutted, the same
had to be accepted. The different hand writing or
different colour of the ink is not a material alteration at
all. (See Lillykutty v. Lawrance (2003 (3) KLT 721).
Therefore, the findings of the learned Magistrate is
unacceptable on the above principle as well.
7. When the entire evidence is thus appreciated,
I hold that the appellant, complainant, had established
the offence alleged against the accused, the first
respondent, under Section 138 of the Act. Hence, I
further hold that the first respondent, accused, as guilty
and convict him, thereunder. Therefore, I set aside the
impugned judgment of the trial Court as well as the
acquittal of the accused therein.
8. Though the advocate is appearing on behalf of
the first respondent, accused, he has to be heard on the
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sentence, before imposing the same. For that limited
purpose of hearing the first respondent, accused, on the
question of sentence and for passing the sentence
according to the law, I remand the case to the Judicial
Magistrate of First Class-II, Kochi.
9. The parties shall appear before the Court
below on 3.8.2006. The learned Magistrate, after
hearing the accused, on the question of sentence, shall
impose such sentence, as per the law.
10. If the parties are attempting to settle the
matter, as per the provisions of the Act, the learned
Magistrate shall give them an opportunity to do the same.
The appeal is allowed as above.
J.M.JAMES
JUDGE
mrcs