IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.Rev.Pet.No. 4200 of 2006(D) ------------------------------- CRA.197/2004 of SESSIONS COURT, THRISSUR CC.156/2000 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------- VARGHESE, S/O. MENACHERY VARGHESE, MENACHERY HOUSE, VAZHIKULANGARA, N.PARAVOOR. BY ADV. SRI.K.A.MANZOOR ALI RESPONDENTS: ---------------------- 1. DEVIS, S/O. JOSEPH, CHAMMANEM HOUSE, KURIACHIRA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. BY ADV. SRI.P.VIJAYA BHANU FOR R1 SMT.P.MAYA FOR R1 PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKEN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. R.P. No. 4200/2006 ORDER ON Crl.M.A. No. 12134/2006 DISMISSED SD/ M.N. KRISHNAN, JUDGE 12.12.2008 /TRUE COPY/ P.A. TO JUDGE M.N. KRISHNAN, J ----------------------- CRL.R.P.No. 4200 OF 2006 --------------------------------- Dated this the 12th day of December, 2008 ORDER This revision is preferred against the judgment in Crl. Appeal No. 197/04 of the Sessions Court, Thrissur. The said appeal was preferred against the conviction and sentence passed by the Chief Judicial Magistrate, Thrissur in C.C. 156/2000. The Chief Judicial Magistrate found the accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to pay a fine of Rs. 75,000/- out of which Rs. 70,000/- was ordered to be paid under Section 357(1) of Criminal Procedure Code. The Chief Judicial Magistrate also held that the accused cannot be convicted under Section 420 of the I.P.C. In appeal, the said judgment was confirmed and it is against that the present revision is preferred. A perusal of the judgment of the court below would reveal that it is the case of the complainant that the accused had borrowed money and had issued a cheque dated 1.7.99 for an amount of Rs. 50,000/- which when presented for encashment dishonoured on the ground that the account of the accused in the bank was closed. The defence appears to be that the accused Crl.R.P.No. 4200/2006 -2- brother had some business dealing with the complainant and he had lent certain amount and towards the said transaction a cheque has been issued which had been misused for the purpose of filing a complaint. Both the courts below analysed the materials and found that the ingredients necessary to constitute the offence under Section 420 I.P.C is not available and therefore found the accused not guilty under Section 420 of the I.P.C. A charge was filed along with Section 420 I.P.C under Section 138 of the Negotiable Instruments Act and ultimately the trial court found that the accused guilty for the offence under Section 138 of the Negotiable Instruments Act. I have perused the judgment of the courts below. The issuance of cheque is not disputed. It is proved also. The only contention is that the account was closed at the time of the issuance of the cheque. Therefore it is contended that the complainant was aware of the closure of the account and therefore the ingredients of Section 138 will not be attracted. The courts below found that under Section 138, an offence will lie even when the account is closed for the reason that those who want to deliberately defeat and cheat a person would do so and under ordinary circumstances no person would accept a cheque from a Crl.R.P.No. 4200/2006 -3- closed account. A feeble attempt is made at the revisional stage regarding the notice which I do not consider to be entertained when the matter has reached up to this level. Therefore I do not find any mistake committed by the courts below in convicting the accused under Section 138 of the Negotiable Instruments Act. Therefore the Criminal Revision Petition lacks merit and accordingly it is dismissed. The trial court shall execute the sentence. M.N. KRISHNAN,JUDGE vkm