IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 CRL.A.No. 627 of 2002() ----------------------- CC.1347/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM CRL.M.C. 6733/2002 OF THIS COURT DATED 25.7.2002 .................... APPELLANT(S): COMPLAINANT -------------- ANIL K.MATHEW, KANJIRAKOTTU HOUSE, IRUMPANAM, TRIPUNITHURA, ERNAKULAM. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): ACCUSED & STATE --------------- 1. P.V.XAVIER, STATE BANK OF INDIA, VYTTILA BRANCH,ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 PUBLIC PROSECUTOR SRI PUZHAKKARA MOHAMMED FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/6/2009, THE COURT ON 22/07/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL. Appeal 627 of 2002 -------------------------------------- Dated: JULY 22, 2009 JUDGMENT The challenge in this appeal by the complainant is to the judgment of the Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam, in C.C.No. 1347/99 dated May 18, 2002, dismissing the complaint and acquitting the 1st respondent/accused of the offence punishable under sec.138 of the Negotiable Instruments Act. 2. The 1st respondent/accused availed a loan of Rs.35000/- from the appellant/complainant and to discharge that liability, the accused issued the cheque Ext.P1 dated April 28, 1998 for Rs.35000/- drawn on the State Bank of India, Vytila Branch which, when presented for collection, was returned dishonoured with the endorsement “account closed” and that in spite of the notice issued, the accused did not repay the amount, which is an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the Addl. Chief Judicial Magistrate, Ernakulam, recorded the sworn statement of the complainant, P.W.1, and took cognizance of the case. CRL. Appeal 627 of 2002 2 Thereafter the case was transferred to the trial court for trial and disposal. The accused, on appearance before the trial court, pleaded not guilty to a charge under sec.138 of the Negotiable Instruments Act. On the side of the complainant, PW.1 was examined and Exts.P1 to P7 were marked before the lower court. When questioned under sec.313 Cr.P.C. By the lower court, the accused submitted that in 1995 he borrowed an amount of Rs.10,000/- from the complainant and at that time he issued a signed blank cheque to the complainant as security, that after four months he repaid that amount and when demanded back, the complainant did not return the cheque and it was misusing that cheque, he created Ext.P1. No defence evidence was adduced by the accused. 4. The lower court on an appreciation of evidence found the appellant not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitted him under sec.255(1) of Cr.P.C. Aggrieved, the complainant has come up now in appeal. Special leave for filing the appeal was granted in Crl.M.C.6733/2002 dated 25.7.2002. 5. The following points arise for consideration: 1. Whether the finding of the lower court that the accused was not guilty of the offence punishable under CRL. Appeal 627 of 2002 3 sec.138 of the Negotiable Instruments Act and acquitting him can be sustained? 2. If not, what is the proper punishment to be imposed? Point No.1 6. The lower court found that the cheque Ext.P1 was issued on March 26, 1998 putting the date as April 28, 1998 and at that time there was no subsisting account for the accused in the bank as it is seen from Ext.P7, the certified extract of the ledger relating to the account of the accused in the bank, that the account was closed on December 23, 1997 and that therefore sec.138 of the Negotiable Instruments Act will not be attracted in the present case. The lower court relied on the decision in Joseph v. Philip Joseph (2000(2) KLJ 679). The correctness of the dictum laid down in the above decision was doubted and the matter was referred to a Division Bench. A Division Bench in the decision in Vathsan v. Japahari (2003(3) KLT 972) held that the cheques issued against an account which has been closed prior to the drawal of the cheques shall also cover the fold of sec.138 of the Negotiable Instruments Act to attract the liability. The principle laid down in the above decision was followed by a CRL. Appeal 627 of 2002 4 Single Bench of this Court in Salim v. Thomas (2004 (1) KLT 816. In the light of the principles laid down in the above decisions, in the present case also the issuance of the cheque Ext.P1 and the subsequent dishonour of the same come within the purview of sec.138 of the Negotiable Instruments Act. The finding of the lower court on this point is set aside and reversed. 7. The next question is whether the complainant has proved his case is beyond a question of doubt. The complainant as PW.1 testified in terms of his complaint before the lower court. I have gone through his evidence. No serious discrepancies or inconsistencies were pointed out to discredit his evidence. Further, his evidence is supported by Exts.P1 to P7. The accused did not send any reply to the notice of the complainant. The accused also did not adduce any evidence before the lower court to prove his case that in 1995 he borrowed Rs.10,000/- from PW.1 for which he issued a signed blank cheque. Thus the lower court is justified in believing the evidence of PW.1 and coming to the conclusion that Ext.P1 cheque was issued by the accused to the complainant to discharge a legally recoverable debt which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the CRL. Appeal 627 of 2002 5 accused in the bank and that in spite of the notice the accused did not repay the amount. I confirm the said finding of the lower court. It follows that the accused is guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and I convict him thereunder. 8. As regards the sentence, in the circumstances of the case, I feel that a sentence of fine of Rs.35,000/-, in default to undergo simple imprisonment for three months would meet the ends of justice. 9. In the result, the appeal is allowed. The judgment of the lower court finding the accused not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting him is set aside and reversed. The accused is found guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and is convicted thereunder. He is sentenced to pay a fine of Rs.35,000/-, in default to undergo simple imprisonment for three months. The appellant/accused shall remit the fine before the lower court within one month from this date. P.Q. BARKATH ALI, JUDGE mt/-