Kerala High Court
C.J.Sunny vs Gireesh Kumar on 28 January, 2025
CRL.A NO. 1036 OF 2010
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
TUESDAY, THE 28
DAY OF JANUARY 2025 / 8TH MAGHA,
1946
CRL.A NO. 1036 OF 2010
AGAINST
THE ORDER/JUDGMENT DATED
26.05.2010 IN Crl.L.P.
NO.489
OF 2010
OF HIGH COURT
OF KERALA
ARISING OUT OF
THE
ORDER/JUDGMENT
DATED
29.03.2010
IN
ST
NO.190
OF
2009
OF
JUDICIAL
MAGISTRATE OF FIRST CLASS - II, ETTUMANOOR
APPELLANT/COMPLAINANT:
C.J.SUNNY
CHENNATTU (H)
KIZHAKKUMBHAGOM KARA ETTUMANOOR.
BY ADV SRI.LIJI.J.VADAKEDOM
RESPONDENTS/ACCUSED AND STATE:
1
GIREESH KUMAR
DEVOOS BAKERS,
METTUMPURAM, ETTUMANOOR.P.O., PRESENT ADDRESS,
METTUMPURAM HOUSE, MADAPPADU,, VAKKELPADY JUNCTION,
PULINTHANAM ROAD,, THENAMPLAKKIL PADY, PUNNATHURA
WEST.P.O., PIN-686639.
2
TATE OF KERALA REPRESENTED BY ITS
S
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
Y ADVS.
B
ABRAHAM P.GEORGE
M.SANTHY(K/001410/1999)
PREETHY VARGHESE(K/1441/2021)
SR.PP-SRI.RENJIT GEORGE
HIS
T CRIMINAL APPEAL HAVING BEEN
FINALLY HEARD ON
28.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1036 OF 2010
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JUDGMENT
This appeal is at the instance of the complainant in ST
No.190 of 2009 on the file of Judicial First Class Magistrate
Court-II,Ettumanoor,challengingacquittaloftheaccusedunder
Section138oftheNegotiableInstrumentsAct(forshort,'theNI
Act') vide judgment dated 29/3/2010.
2. The case of the complainant is that, the accused
borrowed Rs.50,000/- from him, and towardsdischargeof that
debt, he issuedExt.P1chequedated1/6/2007,assuringthatit
would be honoured on presentation before the bank. But the
cheque was dishonoured for the reason 'account closed'. He
sent registered lawyer notice to the accused intimating
dishonour of the cheque and demanding the cheque amount.
In spite of receipt of notice, theamount was notrepaidby the
accused. Hence the complaint.
3.Ontakingcognizanceandonappearanceoftheaccused
before the trial court, particulars of offencewas read overand
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explained, to which he pleaded not guilty and claimed to be
tried.
4. Thereupon, PWs 1 and2were examined, andExts.P1
to P5 were marked from the side of the complainant.
5. On closure of prosecution evidence, accused was
questioned under Section 313 of Cr.P.C. He denied all the
incriminating circumstances brought onrecord, andstatedthat
he used to borrow money from thecomplainant, forlending to
others.Hewasworkingasacollectionagent.Hehadgiventwo
blank cheques to the complainant as security.
6. No defence evidence was adduced.
7.Onanalysingthefactsandevidence,andonhearingthe
rival contentions from either side, the trial court acquitted the
accused stating that, the signature in Ext.P1 was put with a
different pen, andso, thecomplainant couldnot provethat the
accused himself filled up that cheque, so much so, the
execution was not proved. Aggrieved by the acquittal of the
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accused, the complainant preferred this appeal.
8. Heard learned counsel for the appellant/complainant
and learned counsel for the 1st respondent/accused.
9.Learnedcounselfortheappellantwouldcontendthatthe
accused was admittinghis signatureinExt.P1 cheque, andhe
was admitting in his 313 questioning that, he used to borrow
money from the complainant for lending to others. He was
admitting that he had given cheques to the complainant as
security. Hehadnocasethattheamountborrowedbyhimfrom
the complainant was ever repaid.
10. Learned counsel for the appellant would rely on the
decision of the Apex court in Bir Singh v. Mukesh Kumar
[2019 (1) KLT598(SC)],inwhichHonourableApexCourtheld
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.Soaccordingtohim, ifatallthecheque
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was not filled upby theaccused himself,orit wasfilled bythe
complainant himself, when the repayment of the amount was
defaulted,itwillnotinvalidatethecheque.Sothetrialcourtwent
wrong in acquitting the accused.
11. Learned counsel forthe1st respondentwouldcontend
that the complainant could not prove his financial capacity to
advance Rs.50,000/- to the accused. But there was clear
admission fromthepartoftheaccusedhimself,thatheusedto
borrow moneyfromthe complainantfor lendingittoothers.So
he was not expected to challenge the financialcapacityof the
complainant.
12. In Bir Singh's case cited supra, Honourable Apex
Courtheldthat,ifasignedblankchequeisvoluntarilypresented
to a payee, towards some payment, the payee may fillup the
amount, and other particulars, and this in itself would not
invalidatethecheque.Theonuswouldstillbeontheaccusedto
provethatthechequewasnotindischargeofadebtorliability,
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by adducing evidence. It wasfurther heldin thatdecision, that
evenablankchequeleaf,voluntarilysignedandhandedoverby
the accused, which is towards some payment, would attract
presumption under Section139oftheNIAct,intheabsenceof
anycogentevidencetoshowthatthechequewasnotissuedin
discharge of a debt.
13. In Moideen v. Johny [2006 KHC 1055], this Court
held that, when a blank chequeis issuedby oneto another, it
gives an authority on the person, to whom itisissued,to fill it
up, at the appropriate stage, with the necessary entries
regarding the liability, and to present it to the bank. The
accused cannot be absolved from the liability, in the event of
dishonour of that cheque.
14. So the contention taken up by the accused that the
chequewasissuedasablankoneasasecurity,willnotabsolve
him from criminal prosecution underSection 138of theNIAct.
The accused himself admittedthat heissued Ext.P1chequeto
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thecomplainanttosecuretheamountborrowedbyhim. Hehas
no case or any proof to show that, he repaid the amount
borrowed from the complainant. So the complainant who was
possessing that cheque, had every authority to fill up that
cheque, and to present it before the bank.
15. In AAREMSKY Sports and Fitness v. P. A.
Sadanandam [2024 KHC 111 : 2024 (1) KLT 834],this Court
held that, if a chequewas issuedas security,andifthedebtis
notrepaidinanyotherform,beforetheduedateorifthereisno
understanding or agreement between the parties to defer the
repayment,thechequewouldmature forpresentation. Whena
cheque isissuedandistreatedas'security'towardsrepayment
of anamountwithatimeperiodbeingstipulatedforrepayment,
all that it ensures is that such cheque which is issued as
'security'cannotbepresentedpriortotheloanortheinstalment
maturing for repayment towards which such cheque isissued,
as security. Further, the borrower would have the option of
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repaying the loan amountor suchfinancial liabilityin anyother
formandinthatmanner,ifthe amountofloandueandpayable
has been discharged within the agreed period, the cheque
issued assecurity cannot thereafterbepresented.[SeeSripati
Singh v. State of Jharkand [2021 SCC OnLine SC 1002].
16. There is no hard and fast rule that acheque whichis
issued as security can never be presentedbefore bankby the
drawee of the cheque. Relying on Bir Singh's case cited
supra,iftheamountduewasnotpaid,theholderofthecheque
gets authority to fill it up and present it before thebank.The
drawer of the cheque need not fill up the cheque in his own
handwriting toproveitsexecution,andevenif thatchequewas
filledupbythepayee,ondishonourofthatcheque,theaccused
willbeliableforprosecutionunderSection138ofNIAct.So the
acquittaloftheaccusedbythetrialcourtisliabletobeinterfered
with.
17. Theavailablefactsandevidencearesufficienttoshow
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that the accused had borrowed Rs.50,000/- from the
complainant,andtowardsdischargeofthatdebt, hehadissued
Ext.P1 cheque. The cheque was dishonoured for the reason
'account closed'.Nowitistritelawthatevenifthechequewas
dishonoured for the reason 'account closed', it will attract an
offence punishable under Section 138 of the NI Act. So the
accused is to be found guiltyunder Section138of the NIAct,
and he is liable to be convicted thereunder. In the result,the
accusedisfoundguiltyunderSection138oftheNIAct,andhe
is convicted thereunder.
18. Regarding the sentence to be imposed, learned
counsel for the 1st respondent/accused pleaded for a lenient
view, as the transaction was of the year2007, andtheappeal
was of the year 2010.
19. In Damodar S.Prabhu v.SayedBabalal H[2010(2)
KHC 428]Hon'bleApex courtobservedthat itisquiteobvious
thatwithrespecttotheoffenceofdishonourofcheques,itisthe
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compensatory aspect of the remedy which should be given
priority over thepunitive aspect.In K
aushalya DeviMassand
v. Roopkishore Khore [2011 KHC 281], Hon'ble Apex court
held thatthegravityof a complaintunder theNIActcannotbe
equatedwithanoffenceundertheprovisionsoftheIPCorother
criminal offences. AnoffenceunderSection 138of theNIAct,
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 15
yearsindisposingthisappeal,thisCourtisnot inclinedtosend
the accused behind the bars for a transaction of Rs.50,000/-,
which occurred in the year 2007. So this Court is inclined to
sentence the accusedtoundergosimpleimprisonmentforone
daytill risingof court,andtopaycompensationofRs.70,000/-,
with a default sentence of simple imprisonment for three
months.
20. The 1st respondent/accusedhastoappearbeforethe
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trial court on or before 10/3/2025 preferably with notice to the
appellant/complainant, to receive thesentence andto paythe
compensation amount. If the appellant/complainant is absent
on that day, 1st respondent/accused can deposit that amount
beforethetrialcourt.Incasethe1strespondent/accusedfailsto
appear before thetrialcourttoreceivethesentenceandtopay
the compensation amount as directed, the trial court has to
execute the sentence against him, without further delay.
Registry to forwarda copyofthisjudgmentalongwiththe
trial court records, to the trial court, for complying with the
directions aforesaid.
Accordingly, the appeal stands allowed.
Sd/-
SOPHY THOMAS
J
UDGE
ska
