Dismissed

Seethalakshmi v. Abdul Majeed

Kerala HC5 Jul 2023CRL.A/172/2022

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a criminal appeal against an acquittal in a cheque dishonour case. The court held that since the cheque was conditional on obtaining patta which was never done, no legally enforceable debt existed. Furthermore, the statutory notice was not properly served due to an incorrect address and lack of satisfactory proof of service.

What did the court decide?

The criminal appeal was dismissed; the impugned judgment of acquittal was upheld.

Seethalakshmi Vs Abdul Majeed — Cheque Dishonour | Kerala HC (2023)

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Crl.A.No.172 of 2022

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 5^TH DAY OF JULY 2023 / 14TH ASHADHA, 1945

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CRL.A NO. 172 OF 2022

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AGAINST THE ORDER/JUDGMENT in CC 4088/2017 OF JMFC(SPECIAL COURT) FOR TRIAL OF SEC.138, NI ACT CASES (TEMPORA)

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APPELLANT/COMPLAINANT:

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SEETHALAKSHMI AGED 55 YEARS WIDOW OF LATE SURESH.K.MENON KARTHIKA HOUSE VENNALA KARA EDAPPALLY SOUTH VILLAGE VENNALA P.O. NOW RESIDING AT PADAYATH HOUSE SOUTH VELLARAPILLY KARA VELLARAPILLY P.O. THEKKUMBHAGAM VILLAGE- 683 580. ERNAKULAM, PIN - 683580 BY ADV KAPPILLIL ANILKUMAR

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RESPONDENTS/ACCUSED AND STATE:

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1 ABDUL MAJEED, SON OF HYDROSE AGED 56 YEARS II 91 THEMMYADATH HOUSE ALUVA VILLAGE ALUVA - 683 101. ERNAKULAM, PIN - 683101 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM-682 031., PIN - 682031 BY ADVS. Dinesh Mathew J Murikan VINOD S. PILLAI(K/631/2012) NAYANA VARGHESE(K/283/2021) MOHAMMED THAYIB N.M.(K/1451/2019) AHAMMAD SACHIN K.(K/001814/2019)

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OTHER PRESENT:

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SR.PP.RENJITH GEORGE

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

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05.07.2023, THE COURT ON 27/6/2023 DELIVERED THE FOLLOWING:

Crl.A.No.172 of 2022

V.G.ARUN J.

Crl.Appeal.No.172 of 2022

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Dated this the 5^th day of July 2023

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JUDGMENT

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The appellant's husband, late Suresh K.Menon, had entered into an agreement with the first respondent for the sale of 2.13 Ares of his land comprised in Sy.No.96/8-2 of Edapally South village. On measurement, it was revealed that, over and above the 2.13 Ares, there was an excess area of 0.71 Ares lying within the boundaries of the property. Thereupon, the parties entered into Ext.P4 supplementary agreement dated 3/8/2016, by which the first respondent (purchaser) agreed to purchase the excess land for Rs.26,32,500/-. On the date of agreement, the first respondent paid Rs.13,16,250/- in cash and issued Ext.P3 cheque as security for the balance amount of Rs.13,16,250/-. The cheque, on presentation, was dishonoured for insufficiency of funds. In spite of issuing lawyer notice demanding payment of the cheque amount, the first respondent failed to pay the amount. Thereupon, the appellant's husband filed a complaint against the first respondent alleging commission of the offence

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Crl.A.No.172 of 2022

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under Section 138 of the Negotiable Instruments Act. The complaint was taken on file as CC No.4088/2017 in the Court of the Judicial First Class Magistrate (Negotiable Instruments Act cases), Ernakulam. While the case was pending consideration, the appellant's husband died on 2/10/2020. Thereupon, the appellant got herself transposed in the place of the complainant and prosecuted the complaint. By the impugned judgment the trial court acquitted the first respondent, based on the finding that the cheque had not been issued in discharge of any legally enforceable debt or liability. Hence, this appeal.

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Learned Counsel for the appellant contended that the impugned judgment is bad for misappreciation of evidence and misunderstanding of law. It is contended that under the terms of Ext.P4 agreement, the first respondent was bound to take steps for obtaining patta from the Land Tribunal. The first respondent having failed to do so within the eight months mentioned in the agreement, the complainant had every right to present the cheque. Even then, without clearly understanding the intention of the parties, the court below went on to hold that the cheque could have been presented

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Crl.A.No.172 of 2022

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only after obtaining patta from the Land Tribunal. Learned Counsel also contended that the clause in the agreement requiring obtainment of patta from the Land Tribunal is illegal and unworkable. Therefore, the complainant had every right to present the cheque de hors the terms of the agreement. It is argued that the signature in the cheque being admitted and statutory conditions having been complied with, the presumption under Section 139 of the NI Act was attracted. In spite of the first respondent's failure to rebut the presumption, the trial court had rendered the judgment of acquittal.

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Refuting the contentions, learned Counsel for the first respondent submitted that the trial court had arrived at the correct conclusion, after proper appreciation of evidence. As per the terms of Ext.P4 agreement, the cheque was to be returned to the complainant on the first respondent paying the amount in cash. The payment was made subject to the issuance of patta by the Land Tribunal. Although, the original complainant and the first respondent were to approach the Land Tribunal jointly for getting the patta issued, no efforts were taken by the original complainant. For the purpose of obtaining patta, the land had to be surveyed, but no re-survey

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Crl.A.No.172 of 2022

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was conducted. The agreement does not authorise the seller to present the cheque without satisfying the conditions therein.

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The contentions of both sides being based on the terms of the agreement, it is essential to carefully analyse and understand the terms of Ext.P4. A rough translation of the terms reads as under;

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i. The parties have jointly decided to submit an application before the Land Tribunal for obtaining patta for the above mentioned 0.71 Ares of land in the name of the second party(first respondent). The first party(original complainant) will bear all the expenses.

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ii. Out of the total sale consideration of Rs.26,32,500/- for the 0.71 Ares, the second party has paid Rs.13,16,250/- today. For the balance sum of Rs.13,16,250/-, the second party has issued Cheque No.789002 dated 30/4/2016, drawn on the State Bank of India, Vennala Branch. The cheque is handed over by the second party to the first party as security . The cheque shall be returned by the first party to the second party on the second party paying the amount in

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Crl.A.No.172 of 2022

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cash, after obtaining patta from the Land Tribunal.

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iii. The parties have jointly fixed the time limit for

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obtaining patta in the above manner as eight months from the date on which the sale deed with respect to the 2.13 Ares is registered. The parties agree that immediately on issuance of the patta, second party shall pay the balance amount in cash and take back the cheque. The second party has agreed to do the needful(except the expenses) for obtaining the patta.

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A careful scrutiny of the above terms reveals that the agreement does not envisage presentation of the cheque by the seller. This probably is for the reason that the parties to the agreement were confident that they would be able to obtain patta for the excess 0.71 Ares within eight months. Contrary to their expectation, the patta was not issued by the Land Tribunal. The first respondent claims that he, along with the seller, had approached the Land Tribunal, but was informed that there is no possibility of the patta being issued. On the other hand, the appellant's version is that her husband had never approached the Land Tribunal along with the first respondent. In any case, payment of the balance sale

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Crl.A.No.172 of 2022

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consideration being subject to the obtainment of patta, the seller could not have presented the cheque without that condition being satisfied. In other words, the cheque was issued as a consideration for securing the title over 0.71 Ares in the second respondent's name. As this condition was not satisfied, the cheque cannot be held to have been issued in discharge of a legally enforceable debt or liability. The trial court having reached the same conclusion, the impugned judgment warrants no interference.

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Pertinently, the trial court also found that the demand notice was sent to a wrong address. It was therefore held that, the requirement of issuing the notice as mandated under Section 138(b) of the Act, is not satisfied. Surprisingly, after entering such a finding, the trial court brushed aside the contention of the first respondent regarding non-service of notice under Section 138(b). While in the records the address of the first respondent is shown as IX/91, Themmyadth House, Aluva P.O. Pin.683101, the address in the postal cover under which the statutory notice was issued, is II/91, Themmyadth House, Aluva -01. Another important aspect is the endorsement made by the postman, which is to the effect;

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Crl.A.No.172 of 2022

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“addressee absent- intimation”. In so far as the house number of the first respondent was shown incorrectly, it was the appellant's burden to prove service of notice by examining the postman. In the absence of such evidence, service of notice under Section 138(b), cannot be held to have been complied with.

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For the aforementioned reasons, the Criminal Appeal is dismissed.

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Sd/-

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V.G.ARUN JUDGE

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dpk

Seethalakshmi v. Abdul Majeed

Case brief

What is this about?

What did the court decide?

Seethalakshmi v. Abdul Majeed

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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