Kerala High Court
Abdulrahiman vs Abdul Majeed on 27 January, 2025
2025:KER:6258
Crl.Appeal No.1761 of 2007 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
MONDAY, THE 27
DAY OF JANUARY 2025 / 7TH MAGHA, 1946
CRL.A NO.1761 OF 2007
AGAINST THE JUDGMENT DATED 20.10.2006 IN CC No.123 OF
2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KODUNGALLUR
APPELLANT/COMPLAINANT:
BDULRAHIMAN
A
S/O MUHAMMADALI, KARUKAPADATH HOUSE, ERIYAD, MANAGING
PARTNER, SWARNAGOPURAM JEWELLERY, PERINJANAM.
BY ADV SRI.P.SANTHOSH (PODUVAL)
RESPONDENTS/ACCUSED & STATE:
1
BDUL MAJEED, S/O.KOCHU,
A
VELLAKKATTUPADY, ERIYAD, KODUNGALLUR.
2
TATE OF KERALA
S
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
BY ADV SRI.P.K.SAJEEV
OTHER PRESENT:
PP-SMT.SEENA C.
THIS
CRIMINAL
APPEAL
HAVING
BEEN
FINALLY
HEARD
ON
7.01.2025,
2 THE
COURT ON
THE
SAME DAY
DELIVERED
THE
FOLLOWING:
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Crl.Appeal No.1761 of 2007 2
J U D G M E N T
This appeal is at the instance of the complainant in
CC No.123 of 2005 on the file of the Judicial Magistrate of First
Class, Kodungallur, challenging acquittal of the accused under
Section138oftheNegotiableInstrumentsAct(hereinafterreferred
as 'the N.I Act'), vide judgment dated 20.10.2006.
2. The case of the complainant is that, towards the cost of
gold ornamentspurchasedbytheaccusedfromthejewelleryshop
of the complainant, he issued Ext.P1 cheque dated 23.11.2004,
assuring that it would be honoured on presentation before the
Bank. But, that cheque was dishonoured for the reason
'insufficient funds', asperExt.P2dishonourmemo. Thereafterthe
complainant sent registered lawyer notice to the accused,
intimating dishonour of the cheque and demanding the cheque
amount. In spite of receipt of notice, the amount was not paid.
Hence the complaint.
3. On taking cognizance and on appearance of the accused
before the trial court, particulars of offence was read over and
explained, to which, he pleaded not guilty and claimed to be tried.
4. PW1 was examined and Exts.P1 toP6weremarkedfrom
the side of the complainant, to prove his case.
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Crl.Appeal No.1761 of 2007 3
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, but no defence
evidence was adduced.
6. On analysing the facts and evidence and on hearing the
rival contentions from either side, the trial court acquitted the
accused on the ground that, the complainant failed to prove the
transactionbyproducingdocuments. Aggrievedbytheacquittalof
the accused, the complainant preferred this appeal.
7. Heard learned counsel for the appellant/complainant and
learned counsel for the 1st respondent/accused.
8. Learnedcounselfortheappellantwouldcontendthat,the
accused was admitting issuance of Ext.P1 cheque to the
complainant, and the signature in Ext.P1 cheque also was not
disputed. ThepresumptionunderSections118and139oftheN.I
Actwasalsothere,toshowthatExt.P1chequewasissuedforvalid
consideration and towards discharge of alegallyenforceabledebt.
Even then the trial court acquitted the accused and hence the
impugned judgment is liable to be set aside.
9. Learned counsel for the 1st respondent/accused would
contend that, though the complainant admitted before court that,
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Crl.Appeal No.1761 of 2007 4
he was having documents to prove purchase of gold by the
accusedfromhisshop,nosuchdocumentswereproducedtoprove
thetransaction. Accordingtotheaccused,hisfriendoneMr.Baker
purchased gold ornaments from the shop of the complainant,and
as a security for repayment, accused had given his blank signed
cheque leaf to the complainant. He never purchased gold
ornaments from the shop of the complainant and he neverissued
Ext.P1 cheque for an amount of Rs.75,000/- in favour of the
complainant. So,accordingtohim,theacquittaloftheaccusedby
the trial court is only to be upheld.
10. OngoingthroughthetestimonyofDW1-accused,itcould
be seen that, he was admitting that the complainant was the
Managing Partner of M/s.SwarnagopuramJewelleryatPerinjanam.
DuringcrossexaminationofPW1-thecomplainant,learnedcounsel
for the accused was suggesting to him, that several persons had
purchased gold ornaments from the shop of the complainant
through the accused. Even the case of the accused wasthatone
Mr.Bakerpurchasedgoldornamentsoncredit,fromtheshopofthe
complainant for which he had given Ext.P1 cheque as security.
But, according to him, the balance amount due was only
Rs.20,000/-. If atallitisadmittedforargumentsakethatExt.P1
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Crl.Appeal No.1761 of 2007 5
cheque was issued by the accused as a security for the gold
ornaments purchased on credit by his friendMr.Baker,thenalsoit
hastobefoundthat,byissuingExt.P1cheque,hewasundertaking
the liability of Mr.Baker, incasehedefaultsthepayment. Whena
chequeisissuedbyaperson,towardsdischargeofdebtorliability,
due from another person, taking over hisliability,thesaidcheque
also is a cheque issued towards discharge of any debt or liability,
asenvisagedunderSection138oftheN.IAct. Itisnotnecessary
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 entrusted his cheque to the complainant to
secure the dues of Mr.Baker, then also, Ext.P1 cheque can be
consideredasachequeissuedindischargeofadebtorliabilitydue
tothecomplainant. So,whenthatchequewasdishonouredforthe
reason'insufficientfunds',prosecutionunderSection138oftheN.I
Act will lie against the accused.
11. Ongoingthroughtheavailablerecords,itcouldbeseen
thatthecomplainanthascompliedwithallthestatutoryformalities
mandated under Section 138 of the N.I Act. Hence an offence
underSection138oftheN.IActwasmadeoutagainsttheaccused
and so, the trial court went wrong in acquitting the accused.
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Crl.Appeal No.1761 of 2007 6
12. In the result, the accused is found guilty under Section
138 of the N.I Act and he is convicted thereunder. Regardingthe
sentence to be imposed, learned counsel for the 1st respondent/
accusedwouldpleadthatthetransactionwasoftheyear2004and
this appeal was pending for the last 18 years. So, alenientview
may be taken, in the matter of sentence.
13. InDamodarS.Prabhuv.SayedBabalalH[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
compensatoryaspectoftheremedywhichshouldbegivenpriority
over the punitive aspect. In Kaushalya Devi Massand v.
Roopkishore Khore [2011 KHC 281], Hon'ble Apex court held
thatthegravityofacomplaintundertheN.IActcannotbeequated
with an offence under the provisions of the IPC or other criminal
offences. AnoffenceunderSection138oftheN.IAct,isalmostin
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 18 years in
disposingthisappeal,thisCourtisinclinedtosentencetheaccused
to simple imprisonment for one day till rising ofcourt,andtopay
compensation of Rs.1 lakh, with a default sentence of simple
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Crl.Appeal No.1761 of 2007 7
imprisonment for three months.
14. The1strespondent/accusedhastoappearbeforethetrial
court on or before 10.03.2025 to receive thesentenceandtopay
the compensation amount to the appellant/complainant. If the
appellant/complainant is absent on the date of his appearance,to
receive the compensation amount, 1st respondent/accused can
deposit that amount before the trial court. In case the 1st
respondent/accused fails to appear before the trial court as
directedabove,thetrialcourthastoexecutethesentenceagainst
him without further delay.
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
smp
