IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 CRL.A.No. 815 of 2001() ----------------------- {C.C.NO.148/1996 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR} .................... APPELLANT(S)/COMPLAINANT: ------------------------------------ GEORGE, AGED 45, S/O.THANCHAPPANKOCHAPPU, KOLLANPUR, JANATHA TRADING COMPANY, THRISSUR. BY ADV. SRI.N.ANILKUMAR RESPONDENT(S)/ACCUSED & STATE: -------------------------------------------- 1. GURUSWAMI, S/O.SHANMUKHAN, THEKKOOKKARAN HOUSE, METTISSERY P.O., THRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA R1 BY ADVS.SRI.P.VIJAYA BHANU & SRI.P.M.RAFIQ, SMT.MAYA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.A.No.815 of 2001 ------------------------- Dated this the 11th day of March, 2009. JUDGMENT The complainant in C.C.No.148/96 on the file of the Chief Judicial Magistrate, Thrissur, is the appellant herein. 2. The accused was prosecuted for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'} and Section 420 of the Indian Penal Code. The court below considered the evidence and on the premise that the account in question contained more funds than what was necessary to clear the cheque in question, proceeded to hold that the provisions of the Act are not attracted in the case. The accused was, therefore, acquitted. The complainant has come up in appeal, after obtaining leave of this court. 3. I heard learned counsel for the appellant Mr.Anilkumar as also the learned counsel for the respondent Ms.Maya. CRL.A.No.815 of 2001 :: 2 :: 4. The court below had proceeded to acquit the accused on the ground that the accused had issued Ext.P9 stop memo requiring the bank to stop payment of Ext.P3 cheque. It has come out in evidence that the account in question had sufficient funds to clear the cheque in question and if that be so, the provisions of Section 138 of the Act are not attracted. The findings, in this regard, of the court below are contained in paragraph 11 of the judgment, which reads as follows: “From the evidence of Pws.1 to 3, it is brought out that Ext.P3 cheque was issued by the accused. On presentation of Ext.P3 in the bank, it was returned on the reason of payment stopped by the drawer. But Ext.P8 shows that there was sufficient amount in the account of the accused to honour the cheque, on the date of its presentation. Ext.D3 shows that the accused has disputed Ext.P3 cheque on 20.2.96 ie. Before the presentation of cheque in the bank. Hence I find that the provisions of Sec.138 of the Negotiable Instruments Act is not attracted in this case. The accused is entitled to get benefit of doubt. Points 1 to 3 are found against the complainant.” CRL.A.No.815 of 2001 :: 3 :: 5. Learned counsel for the appellant contended that a perusal of Ext.P9 stop memo will show that it related to two cheques including Ext.P3. There is no evidence as to what happened to the other cheque mentioned in Ext.P9. But, it is not disputed that the account in question contained more than Rs.80,000/-, when Ext.P3 cheque was presented in the bank. It is true that the fact that the payment of the cheque was countermanded by a stop memo by itself will not result in the provisions of the Act not being attracted in a particular case. But, apart from the fact that a stop memo has been issued, the account in question contained enough funds to clear the cheque in question. But, nevertheless, the payment was stopped. Irrespective of whether any offence under the Indian Penal Code is attracted or not, the act of the accused will not attract the provisions of Section 138 of the Act. The law in this regard is clear and I am in agreement with the order of acquittal entered by the court below. CRL.A.No.815 of 2001 :: 4 :: 6. Though the complaint was filed alleging an offence under Section 420 of the Indian Penal Code also, as learned counsel for the appellant fairly pointed out, the court below did not take cognizance of the offence under that Section. Consequently, the said aspect does not arise. For all these reasons, the appeal is bereft of merit. Accordingly, the same is dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge