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TMI Blog2023 (9) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... al Procedure seeking to set aside the judgment dated 30.11.2017 in Crl. A. No. 105/2016 on the files of the Additional Sessions Judge-VII, Ernakulam arising from the conviction and sentence in the common judgment dated 16.02.2016 in CC No. 46/2013 on the files of the JFCM-II, Kochi. Crl. A. No. 104/2013 was allowed by the Additional Sessions Judge in favour of the revision petitioner and the said case was remanded to the Magistrate's Court. 2. The petitioner states that he is the accused and is the sole Proprietor of M/s. Seven Ocean Maritime Agencies and Excel Trans, Ernakulam. Towards balance sale consideration consequent to a property assignment, two cheques, one for Rs. 1,48,30,000/- dated 20.09.2004 drawn on Overseas Bank and anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were effected through two sale deeds for a total consideration of Rs. 20,50,000/-. However, the complainant relied on Ext.P8 Letter of Acknowledgment dated 20.01.2011 executed between the parties in order to contend that the petitioner is liable to pay balance amount of Rs. 1,63,30,000/-. The actual sale consideration being much more than what is stated in the registered Sale Deeds, the claim based on Ext.P8 Letter of Acknowledgment is legally not enforceable, contended the counsel for the petitioner. 7. The counsel for the petitioner argued that as per Explanation under Section 138 of the NI Act, "debt" means legally enforceable debt. The counsel pointed out that in Krishna Janardhan Bhat v. Dattatraya Hegde [2018 (1) KLT 425 (SC)], th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forceable. 9. Relying on the judgment of this Court in Sasseriyil Joseph v. Devassia [2001 Crl.LJ 24], the counsel for the petitioner argued that a debt contemplated under Section 138 of the Negotiable Instruments Act should be one legally recoverable. The counsel also relied on the judgment of the Apex Court in N. Harihara Krishnan v. J. Thomas [AIR 2017 SC 4125] to contend that even if the debt is legally due, a cheque can be unenforceable. 10. The counsel for the petitioner, relying on the judgment of the Apex Court in Amrit Banaspati Company Limited and others v. State of Punjab and others [AIR 1992 SC 1075], argued that any agreement against public policy would be unenforceable. The counsel also relied on the judgment of the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and the learned counsel appearing for the 1st respondent. I have also heard the learned Public Prosecutor representing the 2nd respondent. 14. CC No. 46/2013 from which the revision petition arises has been filed when a cheque for Rs. 15 lakhs issued by the revision petitioner was not honoured. The JFCM-II, Kochi found that the 1st respondent has filed complaint after complying with all statutory formalities and within the stipulated time. The cheque was dishonoured for insufficiency of funds. The petitioner has not disputed the documents executed. In such circumstances, the Magistrate's Court convicted the petitioner under Section 255(2) of the Code of Criminal Procedure for the offence under Section 138 of the Negotia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respondent which made the revision petitioner liable to pay Rs. 2,65,00,000/- as consideration. Though there is undervaluation in the sale deeds, it is to be noted that it was a mutual agreement entered into between the parties with consensus ad idem. Ext.P8 might have been executed to escape from payment of due stamp duty. As per the Kerala Stamp Act, it is the revision petitioner who has the liability to pay stamp duty. In other words, the revision petitioner is the beneficiary of Ext.P8 acknowledgment letter and of the undervaluation. 18. After failing to honour the cheque issued in consideration of the purchase of property, now the petitioner cannot be heard to contend that the debt is not a legally enforceable debt and a proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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