Kerala High Court
K.Venugopal vs P.C.Ushadevi on 30 June, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 11TH DAY OF FEBRUARY 2013/22ND MAGHA 1934
CRL.A.No. 637 of 2001 ( )
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AGAINST THE ORDER/JUDGMENT IN CC.421/1996 of J.M.F.C.-I, KOLLAM
DATED 30-06-2000
APPELLANT:COMPLAINANT:
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K.VENUGOPAL,
MANGALASSERIL VEEDU,
THEKKE MURI, KIZHAKKE KALLADA VILLAGE,
KOLLAM.
BY ADV. SRI.P.B.SURESH KUMAR
RESPONDENTS:ACCUSED & STATE :
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1. P.C.USHADEVI,
DEVI BHAVANAM, PERINAD VILLAGE, KOLLAM.
2. K.SASIDHARAN,
DEVI BHAVANAM, PERINAD VILLAGE, KOLLAM,
3. STATE OF KERALA,
REPRESENTED BY THE DIRECTOR OF PROSECUTIONS,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.S.RAJEEV
R3 BY PUBLIC PROSECUTOR SMT.SHEEBA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.A.No.637 of 2001
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Dated this the 11th day of February, 2013
JUDGMENT
The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 30/06/2000 in C.C.No.421 of 1996 of the court of the Judicial Magistrate of the First Class-I, Kollam by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
2. The case of the complainant is that he had sold his private bus bearing Registration No.KL-B-2700 to the first accused and in connection with the above sale both the accused issued Ext.P1 cheque dated 07/02/1996 which, when presented for encashment, dishonoured due to insufficiency of fund in the account maintained by the accused and the accused has not repaid the amount in spite of a statutory notice and thus, according to the Crl.A.No.637/2001 : 2 : complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case PWs.1 and 2 were examined from the side of the complainant and produced Exts.P1 to P8. From the side of the defence DWs.1 and 2 were examined and produced Exts.D1 to D4. The trial court found that the cheque in question was issued only as security and Ext.P1 has no consideration and consequently found that the ingredients of Section 138 of the N.I. Act are not attracted and accordingly found that the accused are not guilty. Consequently, they are acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.
3. I have heard Sri.P.B.Suresh Kumar, learned counsel for the appellant and Adv.Sri.S.Rajeev for the respondents.
4. At the outset it is to be noted the impugned judgment of the trial court is dated 30/06/2000 and now about 12 years are over. Though the matter appears to Crl.A.No.637/2001 : 3 : have been presented on 18/06/2001, the same is pending before this Court in defect and the defect was cured only recently when the Registry has posted the matter in the defect list on 11/12/2012.
5. The learned counsel for the appellant vehemently submitted that the execution of Ext.P1 cheque is proved to be connected with the sale transaction and the possession of the vehicle in question handed over to the accused and they are in possession of the said vehicle and as such all the essential ingredients of Section 138 of the N.I. Act are attracted but the trial court went wrong in holding that no ingredients of Section 138 of the N.I. Act is attracted. It is also the submission of the learned counsel that the accused in their reply as well as during the examination under Section 313 of Cr.P.C. have admitted the transaction and execution of the cheque. Thus, on the strength of the decision reported in Mohanachandran Nair Vs. Cheriyan 2012 (4)KLT SN 35 (C.No.34), the counsel for Crl.A.No.637/2001 : 4 : the appellant submitted that, even if a cheque is given as security, liability under Section 138 of the N.I. Act is attracted.
6. On the other hand, the counsel for the respondent relying upon a decision of the Apex Court in Sudhir Kumar Bhalla Vs. Jagdish Chand & etc. AIR 2008 SC 2407 , submitted that, no offence under Section 138 of the N.I. Act would lie against the drawer on the basis of a cheque given as a security.
7. I have carefully considered the rival contentions advanced by the learned counsel for the appellant and the respondent and I have gone through the judgment of the trial court and the evidence and materials available on record.
8. In the light of the rival arguments advanced and in the light of the finding of the court below and the evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and acquitting the accused and further, whether Crl.A.No.637/2001 : 5 : the appellant has succeeded in making out any substantial ground in support of his challenge against the finding of the court below and order of acquittal. It is beyond dispute that the complainant has sold the vehicle to A1 as per the terms of Ext.P8 agreement of which the second accused is a witness. Besides the other recitals in Ext.P8, it is specifically stated that Ext.P1 cheque was given, as a security. There is no reference or recital in Ext.P8 agreement to the effect that the cheque in question was given towards the discharge of the liability of A1 connected with the sale transaction. In this juncture, it is relevant to note that the second accused is not the purchaser but he is only a witness to Ext.P8 agreement and therefore the liability can be fixed upon the purchaser, provided the other terms and conditions of Ext.P8 are fulfilled. Suffice to say there is no stipulation in Ext.P8 agreement that the second accused has undertaken the liability of the first accused connected with the sale transaction and Ext.P1 cheque was issued Crl.A.No.637/2001 : 6 : on his capacity as a guarantor. It is on the basis of the above facts and circumstances, the learned Magistrate found the case against the complainant and in favour of the accused.
9. It is true that in the decision Mohanachandran Nair Vs. Cheriyan 2012 (4)KLT SN 35 (C.No.34), this Court has held that there is no legal bar in presenting a cheque, which is given as security, or launching prosecution upon the dishonour of such cheque. But the details of facts involved in that case are not available. It can be seen that this Court laid down the above dictum after having referred to the decision of the Apex Court in I.C.D.S. Ltd. Vs. Beena Shabeer 2002 (3)KLT 218 (SC), wherein the Apex Court has held that the prosecution can be launched, even if the cheque was issued to discharge the liability as a guarantor. If that be so, according to me, those decisions are not applicable in the present case, since the complainant has no case that the second accused issued cheque in question as a Crl.A.No.637/2001 : 7 : guarantor. On the other hand, in the decision reported in Sudhir Kumar Bhalla Vs. Jagdish Chand & etc. AIR 2008 SC 2407 relied on by the learned counsel for the respondent particularly in paragraph 21 of the decision the Apex Court held that, "criminal liability of the appellant therein under the provisions of Section 138 of the N.I. Act are attracted only on account of the dishonour of the cheques issued in discharge of liability or debt, but not on account of issuance of security cheques." In the present case, according to me, the above dictum is squarely applicable since the complainant has no case that Ext.P1 cheque was issued by A2 but not to discharge any liability or debt, but only as a security. Therefore, I find no reason to interfere with the order of finding and the order of acquittal recorded in favour of the accused. The learned Magistrate, while rejecting the contention of the complaint, assigned several reasons in support of his finding and acquitting the accused which reasons are Crl.A.No.637/2001 : 8 : supported by evidence and materials and therefore it cannot be said that the judgment of the trial court is tainted or liable to be interfered with on the ground of perversity or illegality.
In the result, I find no merit in the appeal and accordingly the same is dismissed.
V.K.MOHANAN, JUDGE skj