IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRL.A.No. 297 of 2003() ----------------------- CC.775/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... PETITIONER/ COMPLAINANT ------------------- RAHOOF ALI, S/O. C.M.ALI, JAMEELA MANZIL, NEDUMBASSERY P.O., ALUVA, ATHANI. BY ADV.MR.JAIJI ITTEN IS RESPONDENT(S): ACCUSED 2ND RESPONDENT ------------------------------- 1. V.B.ABDUL GAFOOR, VELIPARAMBIL HOUSE, AROOR P.O., ALAPPUZHA DIST. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2009 , ALONG WITH CRA. NO.298 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NOS.297 & 298 OF 2003 ------------------------------ Dated this the13th day of July, 2009 JUDGMENT These appeals are preferred against the order of acquittal passed in C.C.Nos.774/1999 and 775/1999 of the Additional Chief Judicial Magistrate (Economic Offence) Ernakulam. C.C.No.774/1999 relates to a cheque for Rs.2,50,000/= and the other case relates to a cheque for Rs.3 lakhs. There were three cases filed as C.C.Nos.774/1999, 775/1999 and 1623/1999 for prosecuting the accused for non payment of Rs. 8.5 lakhs on account of the dishonour of the cheque issued by the accused towards the discharge of the liability. The court after the full fledged trial, acquitted the accused in C.C.Nos.774 and 775/1999 for the reason that an action will not lie if the account is closed. It convicted the accused in C.C.No.1623/1999 with a direction to undergo S.I for six months. It is against the decisions in C.C. Nos. 774 and 775/1999, these appeals are preferred. 2. The principal point for determination is that what will 2 CRL.A.NOS.297&298/03 be the legal position, if the account is closed. It is seen stated in both these cases that the accounts were closed even prior to the issuance of the cheque and therefore, the court below relying upon the decision of this Court in Joseph v. Philip Joseph (2002 KLJ 679) held that no prosecution will lie as Section 138 is not attracted. It is the fact that the account had been closed even prior to the issuance of the cheque. A Division Bench of this Court reported in Valthsalan v. Japahri (2003 (3) KLT 972) held that even if a cheque is issued against an account which stands closed prior to the date of drawal of the cheque, it comes within the fold of Section 138 of the N.I.Act. In that case, the court has also referred to the decision relied on by the court below in Joseph v. Philip Joseph (2002 KLJ 679). A learned Judge of this Court in the decision reported in Salim v. Thomas (2004 (1) KLT 816) held that a cheque issued after the date of closure of the account falls within the sweep of Section 138. The expression “an account maintained by him“ takes in account, that was maintained by him as also an account that is 3 CRL.A.NOS.297&298/03 maintained by him”. In another decision reported in Nagarjuna Upadhya v. Sanjeevan (2008 (2)KLT SN 24) a learned Judge of the Karnataka High Court held that on date of issuance of cheque account of the accused closed at the instance of the Bank and not at the instance of the accused, provisions of Section 138 will not be attracted. The Supreme Court in the decision reported in N.E.P.C. Micon Ltd. v. Magma leazing Ltd.(AIR 1999 SC 1952) held that dishonour of cheque with the endorsement of the Bank account closed is an offence by drawer of the cheque as envisaged in Section 138. Now it has to be found out whether the account is closed at the instance of the accused or at the instance of the bank for the reason that there will be difference regarding the legal position. Materials are not sufficient in this case to decide the issue. So, I set aside the order of acquittal passed by the courts below in C.C.Nos.774/1999 and 775/1999 and remand the cases back to the trial court for fresh disposal and consider the question afresh in the light of the decisions referred to above and any other decisions that is brought to the notice of 4 CRL.A.NOS.297&298/03 the court including the latest at that point of time. Parties be permitted to adduce evidence in support of their respective contentions and the court must be able to arrive at the decision whether the account was closed at the instance of the accused or it was done by the bank itself and thereafter the matter to be disposed of in accordance with law. The parties are directed to appear before the court below on 26.8.2009 and if the accused does not appear on that day, the complainant has to take steps to serve notice on the accused so as to dispose of the matter after hearing him. These criminal appeals are disposed of as above. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NOS.297&298/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NOS.297 & 298 OF 2003 ------------------------------ 13th day of July, 2009 JUDGMENT 6 CRL.A.NOS.297&298/03