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Kerala High Court · body

2018 DIGILAW 33 (KER)

Susamma Raju v. K. M. Wilson

2018-01-10

B.SUDHEENDRA KUMAR

body2018
JUDGMENT : 1. The revision petitioner was convicted and sentenced by the courts below under Section 138 of Negotiable Instruments Act (in short, 'the N.I. Act'). 2. Heard both sides. 3. The contention of the complainant is that the revision petitioner issued Ext. P1 cheque in favour of the complainant in discharge of the outstanding dues in a kury transaction. 4. The contention of the revision petitioner is that the cheque in question was issued by the revision petitioner as a blank signed cheque as a security at the time of receiving the kury amount and the said cheque had been misused by the complainant to file the present complaint. 5. Going by the case of the complainant, the liability of the revision petitioner arose out of a kury transaction between the complainant and the accused. The complainant is admittedly engaged in kury business. PW1 is the foreman of the kury. It is not discernible either from the complaint or from the evidence of PW1 as to when the kury was commenced and when the kury amount was collected by the revision petitioner. Even though the revision petitioner had a contention that the cheque in question was issued as a blank signed cheque as security at the time of receiving the kury amount, the complainant did not produce any document to prove that the amount covered by Ext.P1 cheque was due to the complainant from the revision petitioner as on the date of the cheque. It is not discernible as to why the complainant withheld the details of the account of the revision petitioner in connection with the above said kury transaction. The Apex Court in M.S. Narayana Menon Alias Mani v. State of Kerala and Another [ (2006) 6 SCC 39 ] held that in case of dishonour of a cheque alleged to have been issued towards outstanding dues in business dealing, if the account books are not produced by the complainant, the contention of the accused that the cheque was issued as security can be believed and the conviction can be set aside. 6. The Apex court in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. [2016 (4) KLT 24] held that the crucial question to determine the applicability of Section 138 of the N.I. Act is whether the cheque represents discharge of existing enforceable debt or liability or not. 6. The Apex court in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd. [2016 (4) KLT 24] held that the crucial question to determine the applicability of Section 138 of the N.I. Act is whether the cheque represents discharge of existing enforceable debt or liability or not. Therefore, if the transaction is a business transaction and the accused takes a contention that the cheque was issued as a security or the amount covered by the cheque was not due from the accused as on the date when the cheque was issued, the account details pertaining to the outstanding dues must be produced by the complainant to prove that the amount covered by the cheque was due as on the date when the cheque was issued. Otherwise, it cannot be said that the amount covered by the cheque was due to the complainant from the accused as on the date when the cheque was issued and consequently, the contention of the accused that a blank signed cheque was issued by him as security, cannot be disbelieved. 7. In the case on hand, even-though the revision petitioner had a contention that Ext. P1 cheque was issued as a blank signed cheque as security at the time of collecting the kury amount and the amount covered by Ext. P1 cheque was not due to the complainant from the revision petitioner as on the date of the cheque, the complainant did not incline to produce the details of account of the revision petitioner relating to the kury transaction to prove that the amount covered by Ext. P1 cheque was due to the complainant from the revision petitioner as on the date when the cheque was issued. In the said circumstances, it cannot be said that the complainant could succeed in proving that the accused executed Ext.P1 cheque as contemplated under Section 138 of the N.I. Act. Consequently, the conviction and sentence passed by the courts below cannot be sustained. In the result, this Revision Petition stands allowed, setting aside the conviction and sentence passed by the courts below under section 138 of the N.I. Act and the revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged.