Kerala High Court
Anil Vincent vs Manoj Thomas on 18 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942
CRL.A.No.156 OF 2011
AGAINST THE JUDGMENT IN ST 154/2007 DATED 13-10-2010 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, KOLLAM
Crl.L.P. 1210/2010 DATED 06-01-2011 OF HIGH COURT OF KERALA
APPELLANT/COMPLAINANT:
ANIL VINCENT,
AGED 45 YEARS
JERALD BHAVAN,
SAKTHIKULANGARA.P.O.,
KOLLAM.
BY ADVS.
SRI.V.JAYAPRADEEP
SMT.SADHANA KUMARI ESWARI
RESPONDENTS:
1 MANOJ THOMAS, AGED 39 YEARS
DIL SHANOJ, JAWAHAR NAGAR, O'STREET,,
THIRUVANANTHAPURAM-695003.
2 STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031
R1 BY ADV. SRI.SERGI JOSEPH THOMAS
R2 BY SRI. M.S.BREEZ, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2021,
THE COURT ON 18-03-2021 DELIVERED THE FOLLOWING:
Crl.Appeal No. 156 of 2011 2
JUDGMENT
This is an appeal filed under Section 378(4) of the Criminal
Procedure Code, hereinafter referred to as the Cr.P.C., preferred by the
complainant in S.T. No. 154/2007, on the file of the Judicial First
Class Magistrate - II, Kollam. That complaint was preferred on
22.11.2006 alleging offence punishable under Section 138 of the
Negotiable Instruments Act. The subject matter of the complaint is
three cheques, drawn on Thiruvananthapuram Main Branch of the
Indian Bank, bearing Nos. 428895 dated 02.09.2006, 428898 dated
22.09.2006 and 428899 dated 14.09.2006, all for Rs. 44,200/-. The
complainant and accused are sea food merchants. According to the
complainant, he collects raw sea food from the fishermen and sells to
agents like the accused, who in turn sells the items to exporters. The
subject cheques were issued at his house in connection with the fish
trade, in discharge of liabilities outstanding from the accused.
2. The cheques were presented for collection
through Maruthadi branch of the Central Bank of
India. But it were returned unpaid on 05.10.2006, with
the endorsement 'account closed'. Thereafter, through
the lawyer notice, the accused was alerted and was called upon to pay
the amount. Though notice was served on the accused, he did not
respond nor the amount was paid and thus the complaint was filed.
On summons, the first respondent accused entered appearance and
pleaded not guilty. The complainant himself and an independent
witness were examined as PWs 1 and 2. Exts. P1 to P6 were also
marked. After closing the prosecution evidence, when examined
under Section 313(1)(b) of the Cr.P.C., the accused denied the
incriminating materials. According to him, the cheques were issued as
security in connection with the business between the parties. In other
words, he maintained that the cheques are not supported by
consideration. There was no oral evidence in defence. However, the
judgment of the Judicial First Class Magistrate - II, Kollam dated
29.01.2010 in S.T. No. 288/2007, between the parties was produced
and marked as Ext.D1. After hearing counsel on both sides, by the
impugned judgment, the learned Magistrate found that the cheques are
not supported by consideration, that the defence version is more
probable. On that premise, the accused was found not guilty and
acquitted under Section 255(1) of the Cr.P.C. Aggrieved by the said
finding, the complainant moved this Court, obtained Special Leave
and preferred this appeal.
3. I heard the learned counsel for the appellant and also the
learned counsel for the first respondent.
4. Relying on the decision reported in APS Forex Services
Pvt. Ltd. v. Shakti International Fashion Linkers and Others [AIR
2020 SC 945], the learned counsel pointed out that even if the cheques
were issued as security, the plea of innocence will not sustain so long
as the first respondent has admitted that the cheques were issued by
him. The learned counsel also pointed out that the appellant could
prove the execution of the cheques and therefore, the statutory
presumptions have to be drawn in favour of the appellant; the first
respondent did not rebut the presumption. The learned counsel also
argued that the first respondent did not send a reply to the lawyer
notice nor did mount the box for the purpose of probabilising his case.
5. On the other hand, according to the learned counsel for the
first respondent, the question of rebutting the presumption available in
favour of the complainant arises only if the execution of the cheques is
admitted or proved. Here, the transactions were not as claimed by the
appellant. The complaint and the evidence tendered by the appellant
are lacking in particulars of the transaction. The versions with regard
to the place where the cause of action had arisen also differs. Such a
presumption will be available only if it is proved that the cheques
were issued in discharge of a legally enforceable debt or liability. The
appellant has admitted that the cheques were obtained two years
before. According to the learned counsel, there is absolutely nothing
to interfere with the finding in question.
6. The appellant gave evidence as PW1 and proved Exts.P1
to P6 documents. PW2 is another fish merchant. He does not have
any idea about the transaction in question. He was examined only to
speak the practices prevalent in the fish trading market.
7. Admittedly, Ext.P1 series cheques belonged to the first
respondent. He has not disputed his signatures also. Even though he
did not respond the lawyer notice nor did tender oral evidence in
defence, during his examination under Section 313 of the Cr.P.C, he
has stated that the subject cheques were issued as security during the
fish trade transactions made by him with the appellant.
8. PW1 has also admitted before the Court that Ext.P1 series
cheques were obtained by him two years prior to the date of
presentation. According to him, the cheques were handed over to him
at the office of the first respondent. But in the complaint, it was stated
that the cheques were issued at his residence. Similarly, there is
substance in the argument of the learned counsel for the first
respondent that the complaint and also the statement of the appellant
as PW1, do not contain the particulars of the transaction. Whatever it
may be, it is very evident from the admission of PW1 that the cheques
were obtained two years prior to the date of presentation.
9. The three ingredients to attract the offence under Section
138 of the Negotiable Instruments Act are that there was a legally
enforceable debt, that the cheque was drawn from the account of the
banker for discharge, in whole or part of any debt or liability which
presupposes a legally enforceable debt and that the cheques so issued
had been returned due to insufficiency of funds. In order to draw the
presumption available in favour of the appellant under Section 118
and 139 of the Negotiable Instruments Act, it must be admitted or
proved that the cheques were issued by the first respondent in
discharge of a legally enforceable debt or liability. Here, the first
respondent has not admitted the allegations. Now, the question is
whether the appellant could prove that Ext.P1 series were issued in
discharge of a duly enforceable debt or liability. But the materials
brought out in evidence are sufficient to give an answer in the
negative. As noticed earlier, the appellant has admitted that the
cheques were issued two years before the date of presentation.
10. Secondly, through the Ext.D1 judgment in S.T.No.
288/2007, the learned Magistrate could very much expose the
hollowness of the claims of the appellant. That case related to
issuance of cheque Nos. 428897 dated 23.08.2006 and 428896 dated
20.08.2006, both for Rs. 44,200/-. Those cheques were shown
dishonored on 12.09.2006. Thus the learned Magistrate has rightly
noticed that it is improbable that after dishonoring two such cheques
on 12.09.2006, the appellant had accepted, at least two cheques dated
14.09.2006 and 22.09.2006 in Ext. P1 series.
11. Moreover, the proviso to Section 138 of the Negotiable
Instruments Act stipulates that the following conditions should be
complied with enabling the payee or the holder in due course to
initiate action under the Act:
a) The cheque has been presented to the bank within a period
of six months (prior to 01.04.2012 which is applicable in the present
case) from the date on which it is drawn or within the period of its
validity, whichever is earlier;
b) A demand has been made by the payee by a registered
notice within a period of thirty days of the receipt of information from
the bank and
c) The drawer fails to make the payment within a period of
15 days from the date of receipt of said notice.
12. Here it has come out in clear terms that the cheques were
handed over two years prior to the date of presentation. In other
words, it was not presented to the bank within a period of six months
from the date on which it was drawn or within the period of its
validity, whichever is earlier. This aspect cuts the very root of the case
of the appellant.
13. After revisiting the evidence, the learned counsel for the
appellant could not persuade this Court to take a different conclusion.
Though the learned counsel made a faint prayer for making a remand,
in the circumstances that would be an idle exercise. The appellant
could not prove that the subject cheques were issued in discharge of a
duly enforceable debt or liability. There is no reason to interfere with
the finding in question. This appeal is only to be dismissed.
Dismissed.
Sd/-
K.HARIPAL
JUDGE
DCS/18.03.2021
