John Abraham v. E.P. Poulose and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933 CRA.No. 825 of 2003 ( ) ======================= CC.1138/1998 of JFCM COURT-I , MUVATUPUZHA APPELLANT/COMPLAINANT: ========== JOHN ABRAHAM, S/O.ABRAHAM, POIKKATTIL HOUSE, NALIPPARA, KOTHAMANGALAM. BY ADV.SRI.K.K.CHANDRAN PILLAI RESPONDENTS/ACCUSED & ANOTHER: ============== 1. E.P.POULOSE, ERUMANGALATHU HOUSE, RAMAMANGALAM KARA, MARADY VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADV. SRI.JOHN JOSEPH(ROY) R2 BY PUBLIC PROSECUTOR MR.SREEJITH.V.S THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** ## **---------------------------------------------------Crl.A.No.825 of 2003 ---------------------------------------------------Dated this the 6[th] day of January, 2012** ## **Judgment** The complainant is the appellant. The accused in his complaint filed under Section 138 of the N.I.Act was acquitted by the learned Magistrate. When Ext.P1 cheque was presented for encashment it was returned with the endorsement 'account closed by the accused'. Thus holding that the dishonour of the cheque was on the ground of closure of the account and not on the ground of insufficiency of funds, the learned Magistrate acquitted the accused. The learned counsel for the appellant submits that right from **NEPC Micon Ltd. v. Magma Leasing Ltd.** (AIR 1999 SC 1952) the view taken by the courts was that the object of introducing Section 138 of the Act is to maintain commercial morality and that when a cheque is returned by the bank unpaid on the ground that the “account closed” it would mean that the cheque is returned unpaid on the ground that the “amount of money standing to the credit of that account is insufficient to honour the cheque.” That decision of the apex Crl.A.825/03 2 court was followed in so many decisions including the decision in **Vathsan v. Japahari** (2003(3) KLT 972) and **Prakasan v. Vasudevan** (2009(3) KLT 360). Another decision on the point is **Vijayakumar v. Vijayan M.T.** (ILR 2010(4) Ker. 244). When the accused signs and issues cheque, it is his duty to see that when the cheque is presented within the time specified, it is honoured. When it is dishonoured on account of the act of the drawer of the cheque, then he is liable for offence under Section 138 of the N.I.Act. Therefore, the ground mentioned by the learned Magistrate to acquit the accused is unsustainable. Accordingly, the finding to that effect is set aside. 2. The learned counsel for the accused would submit that evidence would show that even as on the date of issuance of the cheque, the amount shown therein was not due from the accused to the complainant and as such Ext.P1 is an invalid cheque. Hence, according to the learned counsel, prosecution based on such a cheque is unsustainable. Though it is contended that the amount originally borrowed was Rs.35,000/-, the amount in the cheque as Rs.50,000/-was written including the interest payable on that amount at the rate of 21%. Therefore, it cannot be said Crl.A.825/03 3 that the cheque was unsupported by consideration or that it was not executed in discharge of a legally enforceable debt or liability. The argument to the contrary advanced by the learned counsel for the accused therefore cannot be sustained. 3. The argument of the counsel for the accused that the case has to be sent back to the trial court for fresh trial cannot be sustained in view of the fact that the complaint was filed in the year 1998. Now more than 13 years have elapsed. The court cannot be a party to such delaying tactics. Since the evidence is already on record and that evidence is sufficient to enter a definite finding with regard to the liability, it would be an unnecessary exercise to remand the case to the trial court again to have the case kept pending for years on end. 4. It was argued by the learned counsel for the complainant that considering the money value in 1998 and the depreciation of money value now, the complainant may have to get himself satisfied with a paltry amount as compensation after about 13 years. Whatever that be, since I am not inclined to remand the case to the trial court, it is not necessary to probe further into those aspects. Crl.A.825/03 4 5. It is seen that the cheque was drawn on the account of the accused. It was dishonoured stating that the account was closed. On receipt of the statutory notice, reply was sent within the prescribed time. The amount was not paid. Hence, I find that the statutory requirements are duly complied with. Hence conviction must necessarily follow. 6. In the result, this appeal is allowed. In reversal of the verdict of acquittal, the 1[st] respondent/accused is found guilty of the offence under Section 138 of the N.I.Act and he is convicted thereunder. He is sentenced to undergo imprisonment till the rising of the court and to pay Rs.55,000/- as compensation and in default he will undergo S.I. for three months. The 1[st] respondent/accused will surrender before the learned Magistrate on or before 17[th] February, 2012 to undergo imprisonment till the rising of the court and to deposit the compensation amount as mentioned above. ## **N.K.BALAKRISHNAN, JUDGE.** srd Crl.A.825/03 5 Crl.A.825/03 6