B. UDAYAKUMAR v. M.A. MOHAMMED MALIGA AND STATE OF KERALA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 ## CRL.A.No. 120 of 2008 ------------------------------------ CC.4/1999 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... ## APPELLANT/(COMPLAINANT): B. UDAYAKUMAR, S/O. VENKATARAMANA BHAT, ANANGOOR, KASARAGOD. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR ## RESPONDENTS/(ACCUSED): ## 1. M.A. MOHAMMED MALIGA, S/O. LATE ABOOBACKER MASTER, NEAR KADAVATH, KANKKANDAM, P.O. PERUMABALA, KASARAGOD. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.P.K.MUHAMMED BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K.P. Balachandran, J. --------------------------- Crl.A.No. 120 of 2008 --------------------------- ## **JUDGMENT** Appellant is the complainant in C.C.No.4/99 on the file of the Chief Judicial Magistrate's Court, Kasaragod. This appeal is filed with leave assailing the acquittal of the first respondent under Section 255(1) Cr.P.C. of offence under Section 138 of the Negotiable Instruments Act. 2. Appellant filed C.C.No.4/99 aforesaid alleging, inter alia, that the first respondent borrowed an amount of Rs.82,000/- from him and in discharge of the same, he issued Exhibit P1 cheque and that on presentation for encashment, it was returned for the reason 'account closed', vide Exhibit P2 memo; that thereupon, original of Exhibit P3 notice was issued through Lawyer to the first respondent informing him of dishonour of the cheque and calling upon him to make payment of the amounts covered by the cheque; that the said notice was received by him under Exhibit P4 acknowledgment CRA 120/08 2 card, but he has not cared to issue any reply thereto or to make payment of the amounts covered by the cheque either within the statutory period or ever thereafter and has thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act. 3. On appearance of the first respondent in the court below pursuant to receipt of summons, he was served with copies of all relevant records in the case and was questioned by the learned Magistrate, reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently a trial of the case was conducted by the court below. 4. On the side of the appellant, he gave evidence as PW1 and got marked in evidence Exhibits P1 to P5. On the complainant closing his evidence, the first respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. CRA 120/08 3 However, he did not adduce any evidence in defence. 5. The court below considered the case in the light of the evidence adduced as above, found that the cheque was one issued on 14.11.1998, whereas, the account was closed as early as on 12.11.1997 and that therefore, the case does not fall within the fold of Section 138 of the Negotiable Instruments Act and consequently, acquitted the first respondent. However, he found that all statutory formalities required for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act are complied with. 6. It is vehemently contended before me by the learned counsel for the appellant that the complaint was being dismissed by the court below relying on the decision of this Court in **Joseph v. Philip Joseph** (2002 (2) KLJ 679), but that the said decision is no longer in force in view of the Division Bench decision of this Court in **Vathsan v. Japahari** (2003 (3) KLT 972), wherein this Court held that once a person had issued a cheque drawn CRA 120/08 4 on an account, which he was holding in the bank, necessarily, he cannot take up a defence that he did not have a subsisting account on the date of drawal of the cheque and that it will, if permitted, defeat the intent behind Section 140 of the Act and that when cheques have been issued against an account which has been closed prior to the drawal of the cheque, such cases also will come within the fold of Section 138 of the Act to attract criminal liability. Obviously, in view of the subsequent decision of this Court, the said decision has to be accepted as binding authority and the reason assigned by the court below to acquit the first respondent that offence under Section 138 of the Negotiable Instruments Act is not attracted has to be reversed. 7. It is seen on perusal of records produced that all statutory formalities required for the maintainability of a complaint under Section 138 of the Negotiable Instruments Act stands satisfied in the instant case. Obviously, when the account is CRA 120/08 5 closed, there is no funds standing to the credit of the first respondent in that account, though the reason for dishonour was shown as being closure of account. The first respondent has not issued any reply at all to the notice intimating him of the fact of dishonour of the cheque and demanding payment of the amount covered by the cheque, though it was received by him under under Exhibit P4 postal acknowledgment card nor has he made payment of the amounts covered by the cheque either within the statutory period or ever thereafter and thus, an offence punishable under Section 138 of the Negotiable Instruments Act stands made out on the evidence in the case. The suggestion put in crossexamination of PW1 that Exhibit P1 was issued only by way of security when the first respondent borrowed money from Roopam Finance, in which PW1 is a partner, cannot be accepted as the defence case, especially when the first respondent has not stated so when questioned under Section 313 Cr.P.C. Thus, practically, there is no proper defence for the CRA 120/08 6 first respondent to be urged before this Court and the counsel for the first respondent also requested only for a remand of the case. But, in the circumstances of this case, the learned Chief Judicial Magistrate having considered the case on all its aspects after adducing evidence and the first respondent did not want to adduce any evidence in defence, this is not a proper case where a remand can be ordered. In the circumstances, refusing to order remand, I reverse and set aside the order of acquittal and convict the first respondent of offence punishable under Section 138 of the Negotiable Instruments Act. Post on 6.3.2008 for questioning the first respondent regarding sentence. 26[th] February, 2008 (K.P.Balachandran, Judge) tkv CRA 120/08 7 ## **Order dated 12.3.2008** Counsel for the appellant and the first respondent submit that the matter has been settled between the parties. In view of the said submission, questioning of the first respondent regarding sentence is dispensed with and I sentence the first respondent to pay a fine of Rupees two thousand and in case of default to undergo simple imprisonment for a term of five days. The fine shall be deposited in the court below positively in one week. (K.P.Balachandran, Judge) tkv