Research › Search › Judgment

Kerala High Court · body

2012 DIGILAW 84 (KER)

A. G. Joseph v. M. J. Joseph

2012-01-17

N.K.BALAKRISHNAN

body2012
JUDGMENT : N.K. Balakrishnan, J. The legal heirs of the deceased complainant are prosecuting this appeal filed under Section 138 of the N.I. Act. The accused therein was acquitted by the learned Magistrate under Section 255(1) Criminal Procedure Code Ext.P1 cheque is dated 4.11.2003. It was issued by the accused to discharge a sum of Rs. 2,86,300/-. When the cheque was presented for encashment it was dishonoured on the ground of insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent. It was acknowledged by the accused. The amount covered by Ext.P1 was not paid. Hence the complaint was filed. 2. The complainant got himself examined as P.W.1 and Exts.P1 to P6 were marked. Two witnesses including the Advocate who issued Ext.D2 letter were examined as D.W.1 and D.W.2. Exts.D1 to D16 were marked on the side of the defence. 3. The learned Magistrate accepted and acted upon Ext.D2 letter proved through D.W.2 the Advocate which indicates that the principal amount payable by the accused to the complainant was Rs. Two lakhs and that Ext.P1 cheque was issued for Rs. 2.86,300/- out of which Rs. 86,300/- was towards future interest. Though no specific period was prescribed for repayment of the amount in instalments, from the evidence given by the complainant it could be discerned that the amount was to be paid by the accused within three years. The amount payable on each of the instalment was also not specified. The learned Magistrate found that as on the date when Ext.P1 was presented, the amount shown therein was not due from the accused since part of the amount had already been paid by the accused. Hence, the learned Magistrate acquitted the accused under Section 255 (1) Criminal Procedure Code. 4. The learned counsel for the appellants (legal heirs of the deceased complainant) would submit that though the accused relied upon certain receipts to prove that the entire amount due from the complainant was discharged, the learned Magistrate has found that as per Ext.D15 the actual amount received by the complainant was only Rs. 8000/- whereas it was manipulated to make it appear that the receipt was for Rs. 80,000/-. Similarly, it is submitted by the learned counsel that Ext.D16 receipt was only for Rs. 25,000/- whereas by putting 1' on the left side, the figure was made to Rs. 1,25,000/-. 8000/- whereas it was manipulated to make it appear that the receipt was for Rs. 80,000/-. Similarly, it is submitted by the learned counsel that Ext.D16 receipt was only for Rs. 25,000/- whereas by putting 1' on the left side, the figure was made to Rs. 1,25,000/-. These aspects were highlighted by the learned Magistrate to show that those manipulations might have in all probability been done by the accused. Therefore, according to the learned counsel for the complainant, the amount due under Ext.P1 was not discharged and hence the complainant was perfectly justified in presenting Ext.P1 cheque. 5. This submission is resisted by the learned counsel for the accused who would submit that Ext.D2 letter speaks for itself as to the circumstances under which Ext.P1 cheque was issued by the accused. The fact that Ext.P1 cheque was received by the complainant and that out of the amount shown therein, only Rs. Two lakhs was the principal amount and that Rs. 86,300/- was towards future interest was also specifically noted therein. D.W.2, the Advocate who prepared the letter has testified to that effect. That is not seriously challenged. As stated earlier, the evidence given by P.W.1 would show that the amount was to be paid within a period of three years. Of course, the amount payable in each of the instalment was not specified. According to the learned counsel for the accused, the total amount paid by the accused to the complainant was Rs. 2,84,000/-. Besides, according to him, Rs. 2300/- was sent by money order after receipt of the statutory notice. That, according to the defence, would cover the entire liability towards the complainant. But the learned counsel for the complainant has pointed out the unacceptability of the two receipts mentioned earlier since there was insertion or manipulation with regard to the amount (figure) shown therein. 6. The question is not whether the entire amount covered by Ext.P1 was paid or not, but as on the time of presentment of Ext.P1 cheque, the entire amount shown therein was not due from the complainant. 6. The question is not whether the entire amount covered by Ext.P1 was paid or not, but as on the time of presentment of Ext.P1 cheque, the entire amount shown therein was not due from the complainant. Admittedly, the complainant did not send any notice to the accused stating that out of the amount shown in Ext.D2 letter or Ext.P1 cheque, he had received only a lesser amount (the amount actually received) and asking the accused to pay the balance amount within a particular period or to issue a fresh cheque for the actual balance amount and also intimating the accused that in case the accused failed to repay or to issue a fresh cheque, necessary legal action will be taken. Without sending any notice and without producing the receipts for having received the amount towards Ext.P1 cheque and producing a statement as to the balance amount payable by the accused to the complainant, he presented the cheque as if the entire amount shown therein was due from the accused to the complainant. Statutory notice was also sent by the complainant stating that the amount shown in Ext.P1 cheque was to be paid by the accused. Therefore, it can be seen that the presentment of the cheque for the entire amount and the claim made by the complainant for the entire amount shown in Ext.P1 cannot be sustained. When that is the foundation for the complaint filed under Section 138 of the N.I. Act, the complainant cannot sustain an action so as to invite the accused with penal consequences provided thereunder. Even though the two receipts pointed out by the accused to prove the full discharge of the cheque amount, may not be acceptable as such, still the complainant cannot sustain the complaint under Section 138 of the N.I. Act so as to find the accused guilty of the offence thereunder. When that is the position, the verdict of acquittal passed by the learned Magistrate is only to be confirmed. 7. In the result, this Criminal Appeal is dismissed confirming the order of acquittal passed by the learned Magistrate. Appeal dismissed.