Kerala High Court
J.Sugathan vs R.Kunjukrishna Pillai on 11 February, 2025
CRL.A NO. 500 OF 2008
1
2025:KER:11025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
CRL.A NO. 500 OF 2008
AGAINST THE JUDGMENT DATED 04.02.2008 IN CC NO.162 OF 2007
OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, KOTTARAKAKARA
APPELLANT/COMPLAINANT:
J.SUGATHAN
SUNAJATHIL, KIZHAKKUMBHAGAM MURI,CHITHARA VILLAGE,,
KOTTARAKKARA TALUK, KOLLAM DISTRICT.
BY ADV SRI.B.MOHANLAL
RESPONDENTS/ACCUSED & STATE:
1 R.KUNJUKRISHNA PILLAI,
KRISHNA BUILDING, KOTTUKAL P.O., ANCHAL, KOLLAM
DISTRICT.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF
KERALA, ERNAKULAM.
BY ADV SRI.S.BIJU KIZHAKKANELA
OTHER PRESENT:
SR.PP-SRI.RENJIT GEORGE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 500 OF 2008
2
2025:KER:11025
JUDGMENT
This appeal is at the instance of the complainant in
C.C. No. 162 of 2007 on the file of Judicial First Class Magistrate
Court - III Kottarakkara, challenging acquittal of the accused, in a
complaint filed by him under Section 138 of the Negotiable
Instruments Act (for short, the NI Act).
2. The case of the complainant is that, the accused borrowed
Rs.1 lakh from him on 30.07.2003, and towards discharge of that
debt, he issued Ext.P1 cheque dated 01.10.2004, assuring that it
would be honoured on presentation before the bank. But the
cheque was dishonoured for the reason 'funds insufficient'. In spite
of lawyer's notice intimating dishonour of the cheque, and
demanding the cheque amount, the amount was not returned.
Hence the complainant.
3. On taking cognizance and on appearance of the accused
before trial court, particulars of offence was read over and
explained, to which he pleaded not guilty, and claimed to be tried.
CRL.A NO. 500 OF 2008
2025:KER:11025
4. PWs 1 and 2 were examined and Exts. P1 to P5 were
marked from the side of the complainant to prove his case. 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, he had issued
his blank cheque to the complainant as a security, when the
complainant advanced Rs.30,000/- to Sri. Appukuttan Pillai,
through the bank account of the accused. No witnesses were
examined. But Ext.D1 passbook was marked from the side of the
accused.
5. On analysing the facts and evidence, and on hearing the
rival contentions from either side, the trial court acquitted the
accused, finding that Ext.P1 cheque was given as a blank cheque,
as a security, and it was not issued towards discharge of any legally
enforceable debt. Aggrieved by the acquittal of the accused, the
complainant has preferred this appeal.
6. Heard learned counsel for the appellant/complainant and
learned counsel for the 1st respondent/accused.
CRL.A NO. 500 OF 2008
2025:KER:11025
7. Learned counsel for the appellant would contend that, the
accused was admitting issuance of Ext.P1 cheque to the
complainant, and he was not disputing his signature also. Though
the presumptions under Sections 118 and 139 of the NI Act were
there in favour of the complainant, learned trial court acquitted the
accused. So according to him, the impugned judgment is liable to
be set aside.
8. Learned counsel for the 1st respondent/accused though
admitted issuance of Ext.P1 cheque to the complainant, according
to him, it was only a blank signed cheque, given as security, for
the amount borrowed by Sri. Appukkuttan Pillai from the
complainant. No amount was due from him to the complainant, for
issuing Ext.P1 cheque.
9. Though the case of the accused is that, only Rs.30,000/-
was borrowed from the complainant, that too for Sri. Appukkuttan
Pillai, there is no evidence to support that contention.
Sri. Appukkuttan Pillai was not examined by the accused, to show
that the actual transaction was between himself, and the
complainant. Though lawyer notice was received by the accused,
CRL.A NO. 500 OF 2008
2025:KER:11025
no reply was seen sent by him. Relying on Ext.D1 passbook,
learned counsel for the 1st respondent would argue that, the
amount advanced by the complainant was only Rs.30,000/-. That
passbook will show that the actual transaction was between the
complainant and the accused.
10. PW1 - the complainant and PW2 who is a common friend
of the complainant and accused, would say that Rs.30,000/- was
given by way of cheque, and the balance amount of Rs.70,000/-
was paid in cash. When the complainant is having Ext.P1 cheque
for an amount of Rs.1 lakh drawn from the account of the accused,
it is the burden of the accused to show that the amount mentioned
in Ext.P1 cheque, was not the actual amount borrowed. PWs 1 and
2 are admitting the fact that Rs.30,000/- was paid by way of
cheque, and the balance in cash. Accused is not disputing the
financial capacity of the complainant to advance Rs.1 lakh. Even if
that amount was borrowed by Sri. Appukkuttan Pillai, since the
accused issued the cheque to the complainant, he was undertaking
the liability of Sri. Appukkuttan Pillai, to pay off that debt. Even
the accused has no case that, the amount borrowed by
CRL.A NO. 500 OF 2008
2025:KER:11025
Sri. Appukkuttan Pillai from the complainant was repaid by him.
Even if it is taken for argument sake, that the accused issued
Ext.P1 cheque as a blank one, to secure the amount borrowed by
Sri. Appukkuttan Pillai from the complainant, then also, when that
amount became due, the payee may fill up the particulars to
present it before bank, and that itself will not invalidate the
cheque.
11. In Bir Singh v. Mukesh Kumar [2019 (1) KLT 598
(SC)], Honourable Apex Court held that, if a signed blank cheque
is voluntarily presented to a payee, towards some payment, the
payee may fill up the amount and other particulars, and this in
itself would not invalidate the cheque. Even a blank cheque leaf,
voluntarily signed and handed over by the accused, which is
towards some payment, would attract presumption under Section
139 of the NI Act, in the absence of any cogent evidence to show
that, the cheque was not issued in discharge of a debt. It was
further held that, it is immaterial, that the cheque may have been
filled in by any person other than the drawer, if the cheque is duly
CRL.A NO. 500 OF 2008
2025:KER:11025
signed by the drawer. If the cheque is otherwise valid, the penal
provisions of Section 138 of the NI Act would be attracted.
12. In the case on hand, though the accused contended that,
Ext.P1 cheque was issued by him to the complainant to secure the
the amount borrowed by Sri. Appukkuttan Pillai from the
complainant, he has not adduced any evidence to prove discharge
of that debt, either by himself or by Sri. Appukkuttan Pillai. That
be the case, the complainant was authorised to fill it up, even if it
was issued as a blank signed cheque.
13. Though the accused was contending that there was no
transaction between himself and the complainant, Ext.D1 passbook
coupled with the testimony of PWs 1 and 2 are sufficient to show
that the transaction was between himself and the complainant. If
at all, he received amount from the complainant and handed it over
to Sri. Appukkuttan Pillai, and issued Ext.P1 cheque to secure that
debt, then also he had issued that cheque, undertaking the liability
of Sri. Appukkuttan Pillai and when that cheque is dishonoured, it
will attract the penal provisions as envisaged under Section 138 of
the NI Act. When a cheque is issued by a person, towards
CRL.A NO. 500 OF 2008
2025:KER:11025
discharge of debt or liability, due from another person, taking over
his liability, the said cheque also is a cheque issued towards
discharge of any debt or liability, as envisaged under Section 138 of
the NI Act. It is not necessary that the cheque should have been
issued only for the personal liability of the drawer of the cheque.
So, if at all, the case of the accused that, he had issued Ext.P1
cheque, to secure the debt of Sri. Appukkuttan Pillai, then also,
Ext.P1 cheque can be considered as a cheque issued, in discharge
of a debt or liability due to the complainant. The complainant has
complied with, all the procedural formalities envisaged under
Section 138 of the NI Act. So, the accused was liable to be
convicted under Section 138 of the NI Act. Accordingly, the
impugned judgment of acquittal is set aside.
14. In the result, the accused is found guilty under Section
138 of the NI Act and he is convicted thereunder.
15. Regarding the sentence to be imposed, learned counsel
for the 1st respondent/accused pleaded for leniency, as the
transaction was of the year 2003, and the appeal is coming up for
hearing after 17 years. Learned counsel submitted that, now the
CRL.A NO. 500 OF 2008
2025:KER:11025
1st respondent is 75 years old and he is sick and so, he may not be
sent to jail.
16. In Damodar S. Prabhu v. Sayed Babalal H [2010 (2)
KHC 428] Hon'ble Apex court observed that it is quite obvious that
with respect to the offence of dishonour of cheques, it is the
compensatory aspect of the remedy which should be given priority
over the punitive aspect. In Kaushalya Devi Massand v.
Roopkishore Khore [2011 KHC 281], Hon'ble Apex court held
that the gravity of a complaint under the NI Act cannot be equated
with an offence under the provisions of the IPC or other criminal
offences. An offence under Section 138 of the NI Act, is almost in
the nature of a civil wrong, which has been given criminal
overtones. Imbibing the spirit of these decisions, and taking the
moral responsibility of the long delay of about 17 years in disposing
this appeal, this Court is not inclined to send him behind the bars.
So he is sentenced to undergo simple imprisonment for one day till
rising of court, and to pay compensation of Rs.1 lakh, with a
default sentence of simple imprisonment for one month.
CRL.A NO. 500 OF 2008
2025:KER:11025
17. The 1st respondent/accused has to appear before the trial
court on or before 26.05.2025 preferably with notice to the
complainant/counsel. If the complainant is absent to receive the
compensation amount on that day, he can deposit that amount
before the trial court. If the 1st respondent/accused fails to appear
before the trial court as directed above, the trial court has to
execute the sentence without further delay.
18. Registry to forward a copy of this judgment along with
the trial court records, to the trial court, for complying with the
directions aforesaid.
Accordingly, the appeal stands allowed.
SD/-
SOPHY THOMAS
JUDGE
RMV
