HAJIRA BEGUMW Vs. BINO THOMAS MANAGING DIRECTOR

JUDGEMENT

(1.) On the death of the original complainant, his widow, Hajira Beegum, was impleaded before the court below. The complaint was preferred against the first respondent, the accused, under Section 138 of the Negotiable Instruments Act, in short 'the Act'. To prove the case, the complainant had examined herself as PW.1 and marked five documents. The first respondent had marked two documents, Exhibit D1 and D2. The court below, Judicial Magistrate of the First Class Court-I, Ernakulam, in C.C.No.146/1999, accepted the principle laid down in Sreenivasan vs.State of Kerala [1999 (3) KLT 849] and acquitted the accused. Hence, this appeal challenging the order of acquittal, after obtaining leave.

(2.) The brief facts of the case are that the husband of the appellant, issued a cheque for rupees two lakhs in the name of one C.M.John, on the latter agreeing to arrange an admission for M.B.B.S, at Bangalore Medical College, to the grandson of the appellant. In the absence of the said C.M.John, the first respondent accused received the said cheque, and as a security, he in turn, issued Exhibit P1 cheque to the husband of the appellant. Exhibit D2 agreement was entered into between the husband of the appellant as well as the first respondent- accused. In it, the parties have made clear that another agreement would be entered into between C.M.John and the husband of the appellant. The cheque of the accused would be returned to him, after the arrangements materialise. It is complained of that, though Exhibit D1 agreement between C.M.John and the husband of the appellant had been executed, Exhibit P1 cheque had not been returned. The facts further reveal that the promised admission, to M.B.B.S course, to the grandson of the appellant, was also not arranged. The learned counsel for the first respondent submits that C.M.John is absconding and Exhibit P1 cheque issued by him was only as a security. He had not received any consideration. Therefore, he is not liable. Hence, the counsel urges to sustain the lower court judgment.

(3.) The learned counsel for the appellant relying on I.C.D.S. Ltd. vs.Beena Shabeer [2002 (3) KLT 218 (SC)], argued that Sreenivasan's case cited supra is no more a good law and it has been overruled. Therefore, even a person who issued a cheque as a guarantor or for security, is liable to be proceeded, under Section 138 of the Act. Hence, prayed that the judgment of the lower court may be set aside.