Criminal Appeal No. 203 of 1999 · Kerala High Court

J.M.JAMES, J.--------------CRL.A.203/1999------------------DATED THIS THE 5TH DAY OF JULY, 2006JUDGMENTThe complainant, in C.C.No. 46/1996, on thefile of the Judicial Magistrate of First Class-II, Kochi, is theappellant. He preferred a complaint, under Section 138 ofthe Negotiable Instruments Act, in short 'the Act', againstthe first respondent, accused, as Ext.P2 cheque issued byhim, for an amount of Rs.35,000/-, was dishonoured andthe accused did not settle the account, despite receipt of Ext.P5 notice, informing the dishonouring of the cheque. Hence the complaint was preferred.

The appellant examined two witnesses andmarked eight documents. DW1 was examined and Ext.D1was marked by the accused, respondent. The trial Courthad dismissed the complaint on the grounds that Ext.P2cheque was issued as a security, that the writings andsignature of Ext.P2 cheque are on different hands and alsothat the details of the transaction had not been proved by Crl.A.203/19992the appellant, complainant.

On going through the records, the dishonourof Ext.P2 cheque, issuing of Ext.P5 notice and receipt ofthe same, as could be seen from Ext.P6 postalacknowledgment card, and Ext.P7 reply notice are notdisputed. Therefore, the points enumerated above, asgrounds of dismissal by the trial Court have, alone to bediscussed in this appeal.

The findings of the Court below that Ext.P2cheque was issued as a security and therefore, dishonourof Ext.P2 does not attract Section 138 of the Act is notsustainable in view of the decision of the Supreme Courtin I.C.D.S Limited v. Beena Shabeer(2002 (3) KLT 218(SC) ), where the Court held that the issuance of thecheque is not only for the discharge in whole or part ofany debt, but the same includes “other liability” as well. The 'other liability' mentioned covers the issuance of thecheque as security. Therefore, the findings of the Courtbelow on that point, is set aside. The above authorityhad been followed by this Court in Mohana Pai v. Crl.A.203/19993Jabbar (2005 (1) KLT 118).

The Apex Court held that once a cheque isissued and dishonoured on presentation, because of thepresumption, available in favour of the holder of thecheque in due course, under Section 118 as well asunder Section 139 of the Act, unless the same isrebutted, the cheque has to be accepted as havingvalidly issued in discharge of a debt, due to the holder ofthe cheque. (See K.N.Beena v. Muniyappan (AIR 2001SC 2895). It is not necessary for the Court go throughthe passing of the consideration covering the chequeamount, unless presumption is rebutted. In this case, there is no evidence adduced to show that thepresumption available under Sections 118 and 139 of the Act are rebutted. Hence I hold that the learnedMagistrate went wrong in finding that the appellant hadnot established regarding the transaction and passing ofthe consideration in respect of Ext.P2 cheque amount. Therefore, the said finding is also not sustainable.

Yet another finding of the Court below is that Crl.A.203/19994the writings in Ext.P2 cheque are of different hands. The apex Court held that even if a blank cheque is issuedand the details therein, other than the signature of theexecutant, were filled up by the complainant or anyoneelse, unless the contends therein are rebutted, the samehad to be accepted. The different hand writing ordifferent colour of the ink is not a material alteration atall. (See Lillykutty v. Lawrance (2003 (3) KLT 721).Therefore, the findings of the learned Magistrate isunacceptable on the above principle as well.

When the entire evidence is thus appreciated,I hold that the appellant, complainant, had establishedthe offence alleged against the accused, the firstrespondent, under Section 138 of the Act. Hence, Ifurther hold that the first respondent, accused, as guiltyand convict him, thereunder. Therefore, I set aside theimpugned judgment of the trial Court as well as theacquittal of the accused therein.

Though the advocate is appearing on behalf ofthe first respondent, accused, he has to be heard on the Crl.A.203/19995sentence, before imposing the same. For that limitedpurpose of hearing the first respondent, accused, on thequestion of sentence and for passing the sentenceaccording to the law, I remand the case to the JudicialMagistrate of First Class-II, Kochi.

The parties shall appear before the Courtbelow on 3.8.2006. The learned Magistrate, afterhearing the accused, on the question of sentence, shallimpose such sentence, as per the law.