IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 CRL.A.No. 226 of 2001() --------------------------------- CC.945/1996 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... APPELLANT/ COMPLAINANT ------------------- PRABHAKARAN, AMBILI BHAVANAM, OLAKETTIAMAPALAM, MAVELIKARA TALUK. BY ADV. SRI.S.PRAKASH RESPONDENTS ACCUSED & STATE ----------------------- 1. JANARDHANAN, ALAMPALLIL VEEDU, PERINGALA VILLAGE, MAVELIKARA TALUK. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.S.MOHANAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN,J. ========================= CRL.APPEAL NO.226 OF 2001 ========================= Dated this the 1st day of April 2008 JUDGMENT This is an appeal filed by the complainant in C.C.945/1996 on the file of the Judicial First Class Magistrate's Court, Mavelikkara assailing the correctness of the acquittal of the first respondent by the Magistrate under Section 255(1) of the Criminal Procedure Code of offence punishable under Section 138 of the Negotiable Instruments Act. 2. Heard the arguments of counsel for the appellant and counsel for first respondent. It is contended by the counsel for the appellant that the cheques were dishonoured for reason of those cheques having been reported to have been lost when the fact remains that the account was closed as early as on 28.9.1994 and the cheques were dated respectively 31.3.1996 and 21.4.1996 and the court below has acquitted the first respondent in view of its finding that a complaint under Section 138 of the Negotiable Instruments Act will not be maintainable when a cheque is issued after closing of the account relying on CRL.A.226/2001 2 the decision of this Court in Joseph v Philip Joseph (2000(2) KLJ 679) and that the said decision is no longer good law in view of the subsequent decision of a Division Bench of this court in Vathsan v Japahari (2003(3) KLT 972) wherein it was held that cheques issued against an account which has already been closed prior to the drawal of the cheque also comes within the fold of Section 138 of the Negotiable Instruments Act. The argument advanced by the counsel for the appellant requires to be upheld and I do so. But all the same, it is seen that the court below has disposed of the case without entering any finding on the merits of the case considering the case of the first respondent/accused that he had not issued any such cheque and that the cheques were being misused by the appellant who was regularly coming over to his institution, appropriating a few of his cheque leaves. Therefore the contentions on merits has necessarily to be considered by the court below and not by this court sitting in appeal. In the result, I set aside the judgment under appeal and remit the case back to the court below for disposal afresh, CRL.A.226/2001 3 according to law, considering the case on its merits. The appellant and the first respondent shall appear in the court below positively on 30.4.2008. Registry shall send back the records to the court below forthwith to enable the Magistrate to take up this case on 30.4.2008. The appellant shall produce copy of this judgment before the Magistrate positively on or before 30.4.2008 to enable the Magistrate to abide by the directions in this judgment and to dispose of the case afresh without further delay. This appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE css/