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.
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Crl.Appeal No. 1432 of 2003-C
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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.