Sreesan Adiyat vs Narayanan Perumbarambil
2021 Latest Caselaw 4923 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

    WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                      Crl.MC.No.6871 OF 2019(H)

 AGAINST THE ORDER/JUDGMENT IN ST 530/2018 OF JUDICIAL MAGISTRATE
                      OF FIRST CLASS ,TIRUR


PETITIONER/ACCUSED:

              SREESAN ADIYAT
              AGED 55 YEARS
              S/O.ARAVINDAKSHA MENON,
              ADIYAT HOUSE, KOTTAPPURAM,
              THRISSUR-680 004.

              BY ADV. SRI.T.K.VENUGOPALAN

RESPONDENT:

      1       NARAYANAN PERUMBARAMBIL
              AGED 47 YEARS
              S/O.KYUMARAN, PERUMBARAMBIL HOUSE,
              CHAMRAVATTOM P.O., TIRUR TALUK,
              MALAPPURAM DISTRICT.

      2       STATE OF KERALA,
              REPRESENTED BY PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA, ERNAKULAM-682 031.

              R1 BY ADV. SMT.PREETHI. P.V.
              R1 BY ADV. SMT.ASHA MARIAM MATHEWS
              R2 BY SMT. M. K. PUSHPALATHA, SR.PUBLIC PROSECUTOR

     THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD            ON
10.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.MC.No.6871 OF 2019(H)
                            -2-




                       ORDER

The petitioner is the accused in S.T.No.530/2018

on the files of the court below. Annexure-A1 complaint

was filed against the petitioner by the 1 st respondent

herein, alleging offence under Section 138 of the

Negotiable Instruments Act, (for short "the N.I. Act"),

1881. The petitioner has filed this Crl.M.C. praying for

quashing Annexure-A1 complaint and further

proceedings against the petitioner in S.T.No.530/2018.

2. Heard.

3. The learned counsel for the petitioner has

argued that since all the documents relating to the

payment of the amount were not produced by the

complainant along with the complaint, no successful

prosecution can be maintained. The said argument of

the learned counsel for the petitioner does not appear Crl.MC.No.6871 OF 2019(H)

to be sound. The documents pertaining to the

transactions involved in this case will be produced by

the complainant at the relevant time if the complainant

finds it necessary to be produced. However, whether

such documents are necessary or not in a case of this

type will be considered by the trial court at the

appropriate stage.

4. The learned counsel for the petitioner has

further argued that since part of the amount covered by

the cheque in question is a time barred debt, the

offence under Section 138 of the N.I.Act is not

attracted.

5. The Division Bench of this Court in

Ramakrishnan v. Parthasaradhy (2003 KHC 462) held in

paragraph 13 thus:

"It is, undoubtedly, true that to draw means to write and sign. However, even if the Crl.MC.No.6871 OF 2019(H)

claim is barred by limitation on the date of the drawing of the cheque, on delivery to the other person, it becomes a valid consideration for another agreement. The drawal of the cheque evidences such an agreement. This acknowledgment is enforceable. The drawing and delivery of a cheque create a legally enforceable liability. Thus, we are of the opinion that when a person writes, signs and delivers a cheque to another it is an acknowledgment of a legally enforceable liability. Thereafter, if the cheque is dishonoured on account of insufficiency of funds such a person shall not be entitled to plead that at the time of his writing the cheque the claim had become barred by limitation and, thus, he is not liable to be punished under S.138."

6. The above view was followed by the learned

Single Judge in Mamman S.A.v.C.P.Gopalan Achari and

Another [2011(3) KHC 806]. In view of the above legal Crl.MC.No.6871 OF 2019(H)

position, the argument of the learned counsel for the

appellant that since part of the amount covered by the

cheque in question is a time barred debt, the offence

under Section 138 of the N.I.Act is unsustainable,

cannot hold good.

No other argument has been advanced by the

learned counsel for the petitioner to support his prayer

in this Crl.M.C. Having gone through the relevant

inputs, I am of the view that this Crl.M.C. lacks merits

and accordingly, it is dismissed.

Sd/-

B.SUDHEENDRA KUMAR

JUDGE Nkr/10.02.2021 Crl.MC.No.6871 OF 2019(H)

APPENDIX PETITIONER'S/S EXHIBITS:

ANNEXURE 1 TRUE COPY OF THE CRIMINAL COMPLAINT DATED 12.09.2018 FILED BY THE 1ST RESPONDENT.

ANNEXURE A2 TRUE COPY OF THE REPLY NOTICE ISSUED BY THE PETITIONER.