Kerala High Court
T,.K.Balakrishna Kurup vs State Of Kerala on 7 November, 2024
CRL.A NO. 1849 OF 2007 1 2024:KER:84039
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.A NO. 1849 OF 2007
AGAINST THE ORDER/JUDGMENT DATED 16.08.2007 IN ST NO.290 OF
2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS- I, HARIPAD ARISING OUT
OF THE ORDER/JUDGMENT DATED 18.09.2007 IN CRL.LP NO.725 OF 2007 OF
HIGH COURT OF KERALA
APPELLANT/COMPLAINANT:
T,.K.BALAKRISHNA KURUP
PROPRIETOR, RAMCO AGENCIES,, NANGIARKULANGARA MURI,
CHINGOLI VILLAGE.
BY ADV SMT.A.SALINI LAL
RESPONDENT/ACCUSED:
1 STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
2 NOUSHAD
VALASSERIL VEEDU, ARATTUPUZHA MURI,
ARATTUPUZHA VILLAGE.
BY ADVS.
T.ISSAC
V.MADHUSUDHANAN
PUBLIC PROSECUTOR
CRL.A NO. 1849 OF 2007 2 2024:KER:84039
OTHER PRESENT:
PP-SMT.SEENA C.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1849 OF 2007 3 2024:KER:84039
JUDGMENT
This appeal is at the instance of the complainant in ST
No.290 of 2006 on the file of Judicial First Class Magistrate
Court-I, Haripad, challenging acquittal of the accused, in a
complaint filed by him under Section 138 of the Negotiable
Instruments Act (for short, 'the NI Act') vide judgment dated
16/8/2007.
2. The case of the appellant/complainant is that, the
accused purchased a television set worth Rs.7,500/- from his
shop and paid Rs.1,200/- in cash, and towards the balance
payment he issued Ext.P1 cheque dated 14/10/2005, assuring
that it would be encashed on presenting before the bank. But it
was returned dishonored for the reason 'funds insufficient'.
Thereafter, he sent lawyer notice to the accused, to which he
sent a reply with untenable contentions. But the amount was not
returned. Hence, he filed the complaint under Section 138 of NI
Act.
CRL.A NO. 1849 OF 2007 4 2024:KER:84039
3. On taking cognizance and on appearance of the accused
before the trial court, particulars of offence were read over and
explained, to which he pleaded not guilty and claimed to be
tried.
4. PW1 was examined and Exts.P1 to P12 were marked
from the side of the complainant to prove his case.
5. On closure of complainant's evidence, the accused was
questioned under Section 313 of Cr.P.C. He denied all the
incriminating circumstances brought on record and stated that,
on 14/9/2005, he purchased a television set along with its stand
and stabilizer from the shop of the complainant for a total
amount of Rs.7,500/- and paid Rs.4,000/- in cash. For the
balance amount, which was agreed to be paid in instalments, he
issued a blank signed cheque. Since the television set was not
working properly, he intimated that matter to the complainant on
the date of purchase itself i.e on 14/9/2005, and as directed by
the complainant, he took the TV back to his shop. The
CRL.A NO. 1849 OF 2007 5 2024:KER:84039
complainant after making some corrections in the TV, returned
the same to the accused. He took the TV back to his house, but
on 17/9/2005 it was found not working, and so he again took the
TV back to the shop of the complainant and entrusted the same
in that shop. He demanded a fresh TV from the complainant, but
he was not willing for the same. He sent a lawyer notice, asking
the complainant to return the blank cheque and other
documents which he had entrusted with the complainant at the
time of purchasing the TV. Since the cheque was not returned,
he even filed a civil suit for getting back the records.
6. Exts.D1 to D5 were marked from defence side.
7. On appreciating the facts and evidence, and on hearing
the rival contentions from either side, the trial court found that,
Ext.P1 cheque cannot be said to be issued towards discharge of
a legally enforceable debt, and hence the accused was
acquitted. Challenging the acquittal of the accused, the
complainant has preferred this appeal.
CRL.A NO. 1849 OF 2007 6 2024:KER:84039
8. Heard learned counsel for the appellant/complainant and
learned counsel for the 2nd respondent/accused.
9. Learned counsel for the complainant, relying on Exts.P9
and P11 documents, would say that the accused purchased a
TV worth Rs.7,500/- from his shop, and paid Rs.1,200/- in cash,
and for the balance amount of Rs.6,300/-, he issued Ext.P1
cheque dated 14/10/2005. That cheque was returned
dishonoured for the reason 'insufficient funds' as seen from
Ext.P2 dishonour memo. He had complied with all the statutory
formalities in order to bring home an offence punishable under
Section 138 of the NI Act. Moreover, the presumptions under
Sections 118 and 139 of the NI Act are there to presume that
Ext.P1 cheque was issued towards discharge of a legally
enforceable debt. So learned counsel for the appellant, would
argue that the trial court went wrong in acquitting the accused,
and so the impugned judgment is liable to be set aside.
10. Learned counsel for the 2nd respondent/accused would
CRL.A NO. 1849 OF 2007 7 2024:KER:84039
argue that, out of Rs.7,500/- due to the complainant towards
the price of the TV, its stand, stabilizer etc., the accused had
given Rs.4,000/- in cash and the balance was only Rs.3,500/-.
According to him, the balance amount was agreed to be paid in
instalments, and as a security for the balance payment, Ext.P1
cheque was given as a blank signed cheque. He never
issued the cheque, towards discharge of Rs.6,300/- as claimed
by the complainant. Moreover, his case is that the TV
purchased by him from the shop of the complainant on
14/9/2005 was found defective, and so he took the TV to the
shop of the complainant on the date of purchase itself and after
making some corrections, it was returned to him. Again on
17/9/2005, finding that the TV was not working, he took the TV
to the shop of the complainant and entrusted the same with the
complainant. He claimed back, the blank cheque and other
documents which he had entrusted with the complainant, but he
was not amenable to give it back. So, he sent Ext.D1 notice to
CRL.A NO. 1849 OF 2007 8 2024:KER:84039
the complainant on 20/9/2005. Ext.D2 suit was filed by him
before the Munsiff Court, Haripad against the complainant, for
getting back the records, and also to declare that the cheque
which was entrusted by him to the complainant was without any
consideration. But the complainant presented that cheque
before the bank and got it dishonoured, and thereafter he filed a
criminal complaint against him under Section 138 of the NI Act.
11. The complainant is admitting the fact that, on 17/9/2005
the accused brought back the TV to his shop and since then, it
is with him, and it was never replaced or repaired. The adamant
stand taken by the complainant is that since the accused
purchased that TV, which was having a warranty card, the
accused could have approached the authorised service centre
to get it repaired even if it was found defective.
12. Admittedly, the complainant was doing retail business of
IGO Flat series TV. The accused was an illiterate layman, who
purchased a TV from the shop of the complainant, with much
CRL.A NO. 1849 OF 2007 9 2024:KER:84039
enthusiasm. But to his despair, it was found defective, and so,
he took it back to the shop of the complainant on the date of
purchase itself. After making some corrections, it was returned
to him. Again on the third day, since it was not working properly,
he returned it to the shop of the complainant. If at all it is
admitted that Ext.P1 cheque was issued towards discharge of
the balance amount of Rs.6,300/- which was due under that
transaction, since the TV itself was returned to the complainant,
that liability will stand extinguished. That be the case, it cannot
be said that Ext.P1 cheque was having valid consideration, since
the TV was returned to the complainant.
13. Ext.P1 cheque is dated 14/10/2005, the accused sent
Ext.D1 notice to the complainant on 20/9/2005, i.e., even prior
to the cheque date. Without doing anything for replacing or
repairing it, the complainant presented the cheque before the
bank, knowing well, that the TV purchased by the accused was
returned to his shop, and the accused was not possessing or
CRL.A NO. 1849 OF 2007 10 2024:KER:84039
using it any more. After getting the cheque dishonoured from
the bank, he initiated criminal prosecution against the accused,
by filing a complaint under Section 138 of the NI Act.
14. On going through the facts and circumstances, it could
be seen that, as on the date of the cheque, there was no liability
existing between the complainant and the accused. So, Ext.P1
cheque was not supported by any consideration, as on the date
of that cheque. So the trial court rightly acquitted the accused
under Section 138 of the NI Act.
Hence, this court finds no reason to interfere with the
impugned judgment and upholding the same, the appeal is
dismissed.
Sd/-
SOPHY THOMAS,
JUDGE
ska
