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Joseph Sartho vs G.Gopinathan

Kerala High Court
Joseph Sartho vs G.Gopinathan
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1432 of 2003()


1. JOSEPH SARTHO, THEKKEPALLITHANAM,
                      ...  Petitioner

                        Vs



1. G.GOPINATHAN, KAYAMKULATHUSSERI VEEDU,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY

                For Petitioner  :SRI.SABU GEORGE

                For Respondent  :SRI.C.K.SAJEEV

The Hon'ble MR. Justice A.K.BASHEER

 Dated :/  /

 O R D E R

A.K. Basheer, J.

– – – – – – – – – – – – – – – – – – – – – – – – –

Crl.Appeal No. 1432 of 2003-C

– – – – – – – – – – – – – – – – – – – – – – – – – –

Dated this the 26th day of March, 2008.

Order of Reference

This appeal which is at the instance of the complainant in a

prosecution under Section 138 of the Negotiable Instruments Act is

directed against the order of acquittal passed by the trial court.

2. The case of the complainant was that the accused had

issued Ext.P1 cheque dated June 4, 1999 for a sum of Rs.4,61,400 in

discharge of a debt. Shortly thereafter the complainant received a

sum of Rs.2,26,400 from the accused as part payment. Thus,

according to the complainant himself, the balance amount due from

the accused was only Rs.2,35,000. But since the accused failed to

pay the said balance amount, the complainant presented the cheque

for encashment which was dishonoured due to insufficiency of funds

in the account of the accused . After completing the statutory

formalities, the complainant prosecuted the accused for the offence

punishable under Section 138 of the Act. The trial court acquitted

the accused holding that Ext.P1 cheque did not represent “the

amount which was legally recoverable and that the cheque had not

been issued for a legally enforceable debt or liability”.

3. While assailing the above judgment of acquittal, learned

counsel has invited my attention to an unreported decision of a

learned single Judge dated March 19, 2003 in R.Gopikuttan Pillai

v. Sankara Narayanan Nair in Crl.A.No.270 of 1997. In the said

Crl.A.1432/03 2

decision the learned Judge held that “…….. the expression “the said

amount of money” appearing in clause (b) and (c) of the proviso to

Section 138 of the Negotiable Instruments Act must certainly refer to

the amount of money due under the cheque less amounts, if any, paid

already towards the liability. At any rate the payment contemplated

under clause (c) of the proviso must certainly include payments if any

made towards the liability after the issue of the cheque and before the

cheque is presented for encashment as also payments made after the

receipt of the notice.”

4. However, learned counsel for the accused has invited my

attention to a decision reported in Supply House v. Ullas (2006 (3)

KLT 921). In the said decision another learned single Judge of this

Court held thus:

“…In order to deem that one had

committed offence under S.138, the

amount covered by the cheque shall be

either in discharge of the liability

incurred by the drawer, either in full or

in part. It cannot in any way be in

excess of the liability incurred. Unless

the complainant proves that the liability

to be settled is to the tune of the amount

covered by Ext.P1, he could not have

made use of that cheque for such

liability.”

Learned counsel has also invited my attention to a decision of the

Crl.A.1432/03 3

Madras High Court in Angu Parameshwari Textiles v. Sri.Rajam &

Co. (2001 DCR 648) wherein it has been held that “if the cheque is

more than the amount of the debt due, ….. Section 138 cannot be

attracted.” Learned counsel has raised a further contention that the

decision of the learned single Judge in Gopikuttan Pillai’s case may not

have been correctly decided in view of the decision of the Apex Court

in Suman Seth v. Ajay K. Churinal (2000 Criminal 172).

5. Having heard learned counsel for the parties and having

considered the materials placed before me I am of the view that there is

an apparent conflict in the views taken by this Court in the two

decisions referred to above. Therefore it may be appropriate that the

appeal is heard by a Division Bench .

Registry shall place the matter before the Hon’ble the Chief

Justice for appropriate orders.

A.K. Basheer
Judge.

an.

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