TMI Blog2010 (6) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... heque dated 2.6.1997 for ₹ 22,690/-, drawn on Pulikeezhu Branch of Central Bank of India and the cheque, when presented for encashment, where the appellant is having an account. It was dishonoured for want of sufficient funds under Exhibit P3, which was intimated to the appellant under Exhibit P2. Appellant sent the original of Exhibit P4 notice demanding the amount covered by the dishonoured cheque. First respondent received it under Exhibit and instead of paying the amount, he sent Exhibit P7 reply raising false contentions. First respondent thereby committed offence under Section 138 of Negotiable Instruments Act. Learned Magistrate, after taking cognizance of the offence under Section 138 of Negotiable Instruments Act, issued summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow did not properly consider the evidence in the light of the settled legal position. Learned counsel argued that even, according to the first respondent, the house was constructed for him by the appellant and first respondent is only claiming that it was done free of cost as a charity and therefore, he is not liable to pay any amount He would also contend that even if the cost of materials are calculated, the amount would only be ₹ 16,000/-. Though it was contended that cheque was obtained from Deputy Superintendent of Police's Office, Thiruvalla by exercising duress and coercion, there is no evidence to prove the same. Learned counsel would argue that even a time barred debt could be a valid consideration for issuance of a che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibit P1 cheque was issued ten years after completion of the construction of the house. 6. Section 138 of Negotiable Instruments Act provides that if the dishonoured cheque was issued in discharge of whole or any part of the debtor other liability, it would attract the offence under Section 138 of Negotiable Instruments Act, provided, other requirements are complied. The question is whether the debt so provided would include a time barred debt also. 7 . The question was settled by the Division Bench in Rarnakrishnan's case (supra), which was followed by the decisions of the learned single Judge in Gopinathan's case (supra) and Ramakrishnan v. Gangadharan Nair's case (supra). Division Bench held that under Section 25(3) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 establish that Exhibit P1 cheque was drawn by the first respondent and issued to the appellant. Hence, drawing of the cheque is established. Naturally, court is bound to draw the presumption available under Section 139 of Negotiable Instruments Act, True, it is a rebuttable presumption. But, it is for the accused to rebut the presumption once execution of the cheque is admitted or proved. What is contended by the first respondent is that Exhibit PI cheque was obtained under duress and coercion. According to the first respondent, appellant filed the complaint before Deputy Superintendent of Police, Thiruvalla and first respondent was called there and he was compelled to execute and hand over Exhibit P1 cheque and it was thus, executed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided under the Act and cognizance was taken, are not disputed. In such circumstances, the order of acquittal passed by the Magistrate is unsustainable in law. It can only be set aside and petitioner convicted for the offence under Section 138 of Negotiable Instruments Act. Then the question is regarding the sentence. The cheque is for ₹ 22,690/- and was issued on 2.6.1997. Considering the entire facts and circumstances of the case, interest of justice will be met if first respondent is sentenced to imprisonment till rising of court and a compensation of ₹ 25,000/- to be paid to the appellant/complainant and in default, simple imprisonment for two months. Appeal is allowed Order of acquittal passed by Judicial First Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
