K. U. Abdul Majeed v. K. S. Vipindas and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **Crl.Rev.Pet.No.1236 OF 2019** **AGAINST THE JUDGMENT IN CRA 396/2018 DATED 11-10-2019 OF II ADDITIONAL DISTRICT AND SESSIONS COURT,ERNAKULAM** **AGAINST THE JUDGMENT IN CC 1889/2006 DATED 22-09-2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOCHI** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **K.U.ABDUL MAJEED, AGED 45 YEARS S/O K.M.USMAN,H.NO.XI/283,K.B.JACOB ROAD, NEAR AMARAVATHY BUS STOP,FORT KOCHI-682001.** **BY ADVS. SRI.T.K.PANKAJASHAN PILLAI SRI.SAJI PANKAJAKSHAN** ## **RESPONDENTS/RESPONDENTS/LR OF COMPLAINANT & STATE:** **1 K.S.VIPINDAS, AGED 41 YEARS S/O.LATE K.N.SIVADAS,KALAPPURAKKAL HOUSE,NO.11/647,KADAYABHAGAM, PALLURUTHY,KOCHI-682006. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** ## **SRI C N PRABHAKARAN -SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14.11.2019, THE COURT ON 26.11.2019 PASSED THE FOLLOWING:** Crl.R.P.No.1236/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1236 of 2019 -----------------------------------------------Dated this the 26[th] day of November, 2019 ## **O R D E R** The revision petitioner is the accused in the case C.C No. 1889/2006 on the file of the Court of the Judicial First Class Magistrate -II, Kochi. 2. The petitioner was found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') by the trial court. He was convicted and sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.2,50,000/- and in default of payment of fine to undergo simple imprisonment for a period of two months. The trial court also directed that, if the fine amount was realised, it shall be paid to the complainant as compensation. 3. The petitioner filed Crl.A.No.396/2018 in the Court of Crl.R.P.No.1236/2019 3 Session, Ernakulam, challenging the conviction entered against and the sentence imposed on him by the trial court. The learned Additional Sessions Judge confirmed the conviction but modified the sentence of imprisonment and reduced it to imprisonment till the rising of the court and confirmed the sentence of fine. The revision petitioner challenges the concurrent findings of guilty, conviction and sentence entered against him by the courts below. 4. Heard the learned counsel for the petitioner. 5. Before considering the contentions raised by the learned counsel for the petitioner, it is to be noted that in the first round of litigation, the trial court had found the petitioner/accused not guilty of the offence and acquitted him. Then, the complainant filed Crl.A.No.1351/2009 before this Court, challenging the judgment of the trial court. This Court set aside the judgment of acquittal of the trial court and remanded the matter. After remand, since the complainant was dead, the son of the deceased complainant was permitted to continue the prosecution against the petitioner. 6. Initially, the complainant had got himself examined as Crl.R.P.No.1236/2019 4 PW1 and Exts.P1 to P5 had been marked on his side. The accused had got himself examined as DW1. After the remand of the case, on the side of the complainant, PW2 who was the Manager of State Bank of Mysore, Kochi and PW3 who was the Deputy Manager of State Bank of India were examined and Exts.P6 to P12 were marked. 7. The case of the complainant is as follows: The complainant and the accused were known to each other. The accused issued Ext.P1 cheque dated 22.09.2006 for Rs.2,00,000/- in discharge of the liability incurred by him in the transaction with the complainant. When the complainant presented the cheque in the bank, it was returned unpaid with endorsement “Exceeds arrangements” and “account closed/transferred to P.B. Account”. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He sent a reply raising untenable contentions. He did not pay the amount. 8. The judgment of the appellate court shows that this Court had earlier remanded the case stating as follows: Crl.R.P.No.1236/2019 5 _“For the limited purpose of proving that the account was not closed by the accused on his own volition or that the account was closed by the Bank without the knowledge and consent of the accused, and also that the cheque in question was issued by the accused when the account was not closed by the accused and also to prove that there were no sufficient funds in the accounts of the accused to honour the cheque as on the date of its presentation, an opportunity has to be given to the present appellant. The impugned judgment passed by the court below is devoid of merits and the same is liable to be set aside.”_ 9. Learned counsel for the petitioner contended that the complaint was not filed within the prescribed time and for this sole reason, the judgments of the courts below are liable to be set aside. 10. Section 142 of the Act (at the relevant time, there was no sub-section (1) to Section 142) read as follows: _“142. Cognizance of offences - Notwithstanding anything contained in the Code of Criminal Procedure, (1973),-_ - _(a) no court shall take cognizance of any offence_ Crl.R.P.No.1236/2019 6 _punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138;_ _(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138."_ 11. Section 142 of the Act provides that Court shall take cognizance of any offence punishable under Section 138 on a written complaint made by the payee or the holder in due course, if such complaint is filed within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Therefore, the question is when the cause of action arises for filing a complaint? As per clause (c) of the proviso to Section 138 of the Act, cause of action arises when the drawer of the cheque fails to make the payment of the amount of the cheque to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the notice. Crl.R.P.No.1236/2019 7 12. In the instant case, Ext.P1 cheque is dated 22.09.2006. Ext.P2 dishonour memo from the bank is dated 25.09.2006. Ext.P3 lawyer notice and Ext.P4 postal receipt are dated 05.10.2006. Ext.P5 reply notice sent by the accused to the complainant is dated 20.10.2006. The complainant did not produce the postal acknowledgment card to show receipt of notice by the accused. But, the accused has no case that he did not receive the notice. Ext.P5 reply notice sent by the accused to the complainant is dated 20.10.2006. Therefore, it is evident that the accused had received the notice on or before 20.10.2006. Learned counsel for the petitioner submitted that the petitioner had received the notice on 06.10.2006. The period of 15 days from that date expired on 21.10.2006. Therefore, cause of action for filing complaint would arise from 22.10.2006. The period of one month for filing the complaint has to be reckoned from that day. The complaint was filed on 08.11.2006, well before the expiry of the period of one month from that date. Therefore, there is no merit in the contention of the learned counsel for the petitioner that the complaint was filed beyond the Crl.R.P.No.1236/2019 8 prescribed period. ## 13. In **Saketh India Limited v. India Securities Limited** **: AIR 1999 SC 1090** , it has been held by the Supreme Court as follows: _“The period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15th November is within time”._ _(emphasis supplied)._ 14. The decision in **Saketh** (supra) stands approved by a larger Bench of the Supreme Court in **Econ Antri Limited v. Rom Industries Limited : AIR 2013 SC 3283** . 15. Learned counsel for the petitioner would contend that the cheque was drawn on a non-operative account and therefore, the offence under Section 138 of the Act is not attracted. 16. The cheque was returned unpaid with endorsement Crl.R.P.No.1236/2019 9 “Exceeds arrangements” and “account closed/transferred to P.B. Account”. Regarding the evidence of PW2, the manager of the bank, where the accused was maintaining the account, the trial court has stated as follows: _“Exhibit P2, dishonour memo issued by State Bank of Mysore wherein the accused maintained account in which Exhibit P1 was drawn, shows the reason for dishonour of Ext.P1. PW2, Manager, State Bank of Mysore, Kochi branch, referring to Ext.P2, deposed that Exhibit P1 was dishonoured on the reasons exceeds arrangements and transferred to protested bills account. According to him Exhibit P1 was drawn on a loan account and since the account holder did not repay the loan, it became non performing asset and it was the reason for transferring the account to protested bills account. PW2 further deposed that the account was not closed and that transactions could not be conducted in the account. There is no reason to disbelieve PW2. So it is proved that the account on which Exhibit P1 was drawn was not closed at the time of issuance of Ext.P1 or thereafter.”_ 17. The appellate court has assessed the evidence in this regard as follows: Crl.R.P.No.1236/2019 10 _“After remand, the complainant examined PWs 2 and 3. Evidence of PW2, ie. Bank Manager of the drawee bank would show that Ext.P1 cheque was issued from the account of the accused and the said account was a live account at the time of presentation of Ext.P1 cheque in bank. The evidence of PW3, ie. the Manager of State Bank of India, Kochi Branch would show that the drawee bank, ie. State Bank of Mysore was subsequently merged with the State Bank of India and at the time of presentation of Ext.P1 cheque before court, there was no sufficient funds in the account of the accused to meet the cheque amount and Ext.P1 cheque was returned for the reason of insufficient funds in the account of the accused. Ext.P6 statement of accounts of the accused also corroborates the evidence of PW3. Evidence of PWs 2 and 3 would show that the Bank account of the accused from which Ext.P1 was issued, was a live account even at the time of examination of PWs 2 and 3 before court in 2018. Nothing to disbelieve the evidence of PWs 2 and 3 was brought out during cross examination of those witnesses”._ 18. Learned counsel for the petitioner has not addressed any arguments to the effect that the appreciation of evidence, as Crl.R.P.No.1236/2019 11 mentioned above, by the courts below is perverse or improper. Moreover, in **Rajendran v. Sajeendran : ILR 2009 (3) Ker 913** , this Court has held that, so far as offence punishable under Section 138 of the Act is concerned, it makes no difference whether the account was closed at the instance of or due to any act of drawer of the cheque or at the instance of the bank. ## 19. In **Laxmi Dyechem v. State of Gujarat : (2012) 13** **SCC 375** , the Apex Court has held that even when a cheque is returned for any other reasons such as "account closed, payment stopped, refer to drawer, signature does not match" etc, in each case, Section 138 of the Act will be attracted and that insufficiency of funds as envisaged in Section 138 of the Act is a genus and dishonour for reason of "accounts closed", "payment stopped", "referred to drawer," etc are only species of that genus. 20. The contentions raised by the petitioner that the cheque was issued not to the complainant but to one Mohanan and it was a signed blank cheque etc had been considered by this Court in the earlier round of litigation and those contentions cannot be reconsidered in this revision petition. Crl.R.P.No.1236/2019 12 21. In the aforesaid circumstances, the conviction of the petitioner for the offence under Section 138 of the Act is only to be confirmed. The sentence imposed on the petitioner is also proper and it does not require any interference by this Court. The revision petition is without any merit and it is liable to be dismissed. Consequently, the revision petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr