High Court of KeralaSingle Judge2019-11-20Appeal dismissed; acquittal maintained.

K. Bhargavan v. Vijayan and State of Kerala

Case / Petition Number:CRL.A.No.2695 of 2008

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. V. Anil Kumar
Judgment Date: 2019-11-20
Court Decision / Holding: The High Court dismisses the criminal appeal (CRL.A. No.2695 of 2008) and upholds the acquittal of the accused. The court notes no perversity in the trial court’s reasoning and clarifies that this order will not preclude the complainant from pursuing remedies available under law.
Final Disposition: Appeal dismissed; acquittal maintained.

Parties to the Case

Appellants / Petitioners

K. Bhargavan, S/O Krishnan

Respondents

Vijayan, S/O Kesavan
State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri Pratheesh P
• Smti. T. M. Reshmi

Counsels for Respondents

• Smt. Deliya PONSEK
• Sri B. MOHANLAL
• Sri M. S. Breez

Case Synopsis & Summary

This Kerala High Court judgment in CRL.A. No.2695 of 2008 concerns a private complaint under Section 138 of the Negotiable Instruments Act. The appellant, Bhargavan, challenges the trial court’s acquittal of the accused Vijayan and the State in CC 267/2007 before the Judicial First Class Magistrate, Kottarakkara. The prosecution alleges that the complainant lent Rs. 2,00,000 to the accused on 25.04.2006 and that the accused issued Ext. P1, a cheque dated 27.07.2006 for the same amount, which was dishonored due to the account’s closure. After the legal notice, the complaint was filed for prosecution under Section 138 NI Act. The accused contends that he had no direct transaction with the complainant; he borrowed only Rs. 20,000 from one Dhileep and later repaid; Ext. P1 was a cheque given to Dhileep that somehow came into PW.1’s hands after Dhileep’s death, and the account on which Ext. P1 was drawn had closed long before. The trial court acquitted on three grounds: (i) PW.1’s stated loan date differed from the complaint; (ii) lack of convincing evidence of the complainant’s financial capacity; and (iii) reliance on Urban Co-operative Credit Society v. State that a cheque drawn on a closed account cannot sustain Section 138 NI Act prosecutions. The High Court, on 20 November 2019, dismisses the appeal, finding no perversity in the trial court’s reasoning and upholding the acquittal, while clarifying that the order does not bar further legal remedies. The judgment emphasizes the necessity of proving a legally enforcible debt and the probative value of the account’s status at the time of the cheque’s issuance.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the trial court’s acquittal was sound. There is a material discrepancy in the loan date: PW.1 testified to 25.03.2006 whereas the complaint alleged 25.04.2006; there is no proper correction in the judgment. The prosecution failed to establish that the complainant had the financial capacity to lend Rs. 2,00,000 and that the loan actually occurred. Ext.P1 is claimed to be drawn on an account that had closed long before, a fact supported by Ext.D1 and DW.1’s evidence. The accused asserts the cheque was given to a third party (Dhileep) and later came into PW.1’s possession after Dhileep’s death, thus not proving discharge of a debt to the complainant. The reliance on Urban Co-operative Credit Society v. State is correct to hold that a cheque drawn on a closed account cannot sustain a Section 138 NI Act prosecution; the burden on the complainant to prove a legally enforcible debt remains unmet.

Contentions of Respondents

The respondents contend that Ext.P1 was issued in discharge of debt and that the accused misrepresents facts by claiming a lack of direct transaction. The defence asserts Dhileep’s involvement and that the cheque was given to him, and later obtained by PW.1, such that the debt is not proven as claimed. Bank evidence (DW.1) shows the account was closed long before the alleged transaction, which aligns with the statutory requirements and supports acquittal. The trial court’s reasons, including the date discrepancy and lack of demonstrable funds, are reasonable and properly applied; Urban Co-operative Credit Society v. State is correctly used to emphasize the consequences of a cheque drawn on a closed account.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Urban Co-operative Credit Society v. State	2004(2) KLT SN 74	Positive	The High Court relied on this decision to hold that a cheque drawn on an account that had been closed long ago cannot sustain a prosecution under Section 138 NI Act.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941** ## **CRL.A.No.2695 OF 2008** **AGAINST THE ORDER DATED 24.07.2008 IN CC 267/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, KOTTARAKAKARA** **AGAINST THE ORDER DATED 12-11-2008 IN Crl.L.P. 1695/2008 OF HIGH COURT OF KERALA** ## **APPELLANT/ COMPLAINANT:** **K.BHARGAVAN, S/ O KRISHNAN, AGED 67, MUKALUVILA VEEDU, S.N. PURAM,, PAVITHRESWARAM.P.O, PUTHOOOR, KOLLAM DISTRICT.** **BY ADVS.SRI.PRATHEESH.P SMT.T.M.RESHMI** ## **RESPONDENT/ ACCUSED/ STATE:** **1 VIJAYAN, S/O KESAVAN, AGED 49, ALUVILA VEEDU, S.N. PURAM, PAVITHRESWARAM.P.O, PUTHOOR, KOLLAM DISTRICT. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADVS. SMT.DELIYA PONSEK SRI.B.MOHANLAL R2 BY SR. PUBLIC PROSECUTOR SRI. M.S.BREEZ** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.A.No.2695 of 2008** ## **-: 2 :-** Dated this the 20[th] day of November, 2019 ## J U D G M E N T Appellant, who is the complainant in the private complaint instituted by him under Section 138 of the Negotiable Instruments Act, 1881(for short 'the N.I. Act'), in C.C. No.267 of 2007 before the Judicial First Class Magistrate Court-III, Kottarakkara, challenges the impugned order of acquittal of the accused passed by the court below. 2. The prosecution case is that the complainant advanced a loan amount of Rs.2,00,000/- to the accused on 25.04.2006. When the repayment of loan was demanded, accused issued to him Ext.P1 cheque dated 27.07.2006 drawn for the said amount on the same date itself. The presentment of the cheque before the concerned bank resulted in dishonour on the ground of closure of account. The complainant, thereafter, issued a notice demanding discharge of debt, to which the accused did not respond at all. ## **Crl.A.No.2695 of 2008** ## **-: 3 :-** Therefore, after complying with all legal formalities, complaint was filed before the court below for prosecuting the accused for offence punishable under Section 138 of the N.I.Act. 3. After accused appeared on summons, he pleaded not guilty of offence when substance thereof was read over and explained to him. 4. The complainant examined himself before the court below as PW.1 and produced Exts.P1 to P5 in evidence in support of his case. The accused set up a defence that he did not have any direct transaction with the complainant at all. In fact, he had borrowed only an amount of Rs.20,000/- that too from one 'Dhileep' and later it was discharged also. His contention is that the blank cheque given to Dhileep somehow or other came to the hands of PW.1/complainant after the death of Dhileep and the same has been misused by the appellant for lodging the present prosecution. The accused also contended that the account against which Ext.P1 cheque was issued was closed as early as on 18.03.1999. In this **Crl.A.No.2695 of 2008** ## **-: 4 :-** respect, he examined DW.1-the Manager of the bank and also proved Ext.D1 account register. It is now a proved fact that Ext.P1 cheque was issued after a long period of interval since the account in the name of accused was closed. 5. The court below after considering the entire evidence on record, chose to acquit the accused for three reasons. It noticed that when PW.1/complainant testified in court, he changed the date of transaction averred in the complaint and asserted that the date of advance of loan was 25.03.2006 and not 25.04.2006 as averred in the complaint. This change in the date was taken as one of the grounds for entering an order of acquittal. Secondly, the court below doubted the financial capacity of the complainant to raise the amount and it noticed that no convincing evidence was forthcoming in that respect from the side of the complainant. Thirdly, relying on a decision reported in Urban Co-operative Credit Society v. State [2004(2) KLT SN 74] it held that Ext.P1 being a **Crl.A.No.2695 of 2008** ## **-: 5 :-** cheque issued against an account which had been closed long years ago, prosecution under Section 138 of the N.I. Act cannot be sustained under law. 6. I heard learned counsel for the appellant as well as the 1[st] respondent/accused. 7. I also find that the date of loan transaction testified in the evidence of PW.1 is quite different from the date averred in the complaint. The learned counsel for the appellant submitted that this evident mistake was subsequently corrected as per an order passed by the court permitting correction. But, I do not find from the judgment of the court below that any such correction was ever attempted or the same was permitted. In any view of the matter, the admitted difference in the date of transaction needs to be taken serious note of as opined by the court below. 8. PW.1 while being cross-examined has admitted that advance of loan was in the presence of his wife and children, and also a close friend of his by name Sudhakaran. It escapes my understanding as to why **Crl.A.No.2695 of 2008** ## **-: 6 :-** these witnesses to the transaction were not attempted to be examined to prove execution of the cheque, especially when accused contends that Ext.P1 cheque was in fact issued to one Dhileep and he had no sort of transaction with the complainant. It is true that the complainant claimed to have had necessary funds to advance loan amount to the accused. PW.1 is stated to be an Ex-serviceman. He said that he was keeping cash with him in his house in connection with conduct of his daughter's marriage. But still, he is silent as to the source from where he could raise the amount. 9. It is stated that Dhileep with whom the accused claims to have had transacted is no longer alive. Therefore itself, in the absence of Dhileep, he may not be able to prove his contention that the cheque was not issued to the complainant and Ext.P1 was in the form of a blank cheque at the time of its issue. Nevertheless, the initial burden is upon the complainant to prove that Ext.P1 cheque was issued in discharge of legally enforcible debt. In my view, **Crl.A.No.2695 of 2008** ## **-: 7 :-** agreeing with the court below, he has not succeeded in showing that Ext.P1 was drawn for an amount of Rs.2,00,000/- and he had enough financial capacity to have advanced an amount of Rs.2,00,000/- to the accused. Looking at Ext.P1 cheque,it seems that the ink that was used for subscribing signature on the cheque and writing other parts of the cheque is quite different. No explanation is coming forth in this respect from the testimony of PW.1, especially when there is dispute raised by the accused that Ext.P1 cheque was a blank cheque. For all these reasons together, there is no valid reason to interfere with the order of acquittal passed by the court below. The materials on record do not suggest that the view taken by the court below is either perverse or absurd. In the absence of any perversity or absurdity in the view taken by the court below being shown, it is not just and proper for this Court to interfere with and set aside the impugned order. In the result, Crl.Appeal fails and it is dismissed. However, I make it clear that this order ## **Crl.A.No.2695 of 2008** ## **-: 8 :-** will not in any way preclude the complainant from initiating any criminal prosecution in accordance with law, if any remedy is so available to him under law. All pending interlocutory applications will stand closed. ## **Sd/-** ## T.V.ANILKUMAR,JUDGE DST //True copy// P.A.To Judge