K.M. Sreedharan and Thankamani v. State of Kerala and P.J. Shoby

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933 CRL.A.No. 1612 of 2005 ----------------------[AGAINST THE JUDGMENT DTD.29.7.2003 IN CC.1004/1999 OF THE JUDICIAL FIRST CLASS MAGISTRATE, CHAVAKKAD] APPELLANT(S)/COMPLAINANT: -----------------------* K.M.SREEDHARAN, S/O.MAKAPPU, [expired] KADAMPULLY HOUSE, CHEMMANUR.P.O. ARTHAT VILLAGE, TALAPPALLY TALUK, TRISSUR DISTRICT. * THANKAMANI, W/O.LATE K.M.SREEDHARAN, KADAMPULLY HOUSE, CHEMMANUR.P.O. ARTHAT VILLAGE, TALAPPALLY TALUK, TRISSUR DISTRICT IS IMPLEADED AS ADDITIONAL APPELLANT AS PER ORDER IN CRL.M.A.NO.10670/2011 DTD.3.1.2012. BY ADV. SRI.JOBI JOSE KONDODY RESPONDENTS(S)/STATE AND ACCUSED: -------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. P.J.SHOBY, PANAKKAL HOUSE, MAMMIYOOR.P.O., GURUVAYOOR THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) FOR R2. BY PUBLIC PROSECUTOR SMT.S.HYMA FOR R1. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20-03- 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 1612 of 2005** **----------------------------------------** Dated this the 20[th] day of March, 2012 ## **J U D G M E N T** Initially, the appeal was filed by the original complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') as he is aggrieved by the judgment of the trial court by which the accused is acquitted for the offence punishable under Section 138 of the N.I.Act. During the pendency of the appeal, the original appellant died and by order dated 3.1.2012 in Crl.M.A.No.10670 of 2011, especially when there was no objection, the petitioner therein who is the wife of the original appellant/complainant is impleaded as the appellant and permitted her to prosecute the appeal. 2. During the consideration of the appeal, at the instance of the counsel for the contesting parties, the appellant and the respondents, the hearing of the appeal was adjourned to find out whether the matter can be settled. Now it is reported by the counsel Crl.A.No.1612 of 2005 :-2-: for the second respondent that he is not prepared to settle the matter. Therefore, this Court inclined to dispose of the appeal on merit. Thus, I have heard Mr.Jobi Jose Kondody, learned counsel for the appellant and Sri.Sreekumar.G.Chelur counsel for the second respondent. I have perused the judgment of the trial court and the evidence and materials on record. 3. The case of the complainant is that the accused borrowed a sum of `80,000/- from the complainant on 25.2.1997 and when the complainant demanded back the amount, the accused issued Ext.P1 cheque for the said amount and when the said cheque was presented for encashment, it was returned with endorsement 'account closed'. According to the complainant, there was no sufficient fund in the account of the accused and therefore, he deliberately closed his account. It is the further case of the complainant that though a statutory notice was served on the accused informing the dishonour of the cheque and demanding back the dishonoured cheque amount, no payment was made and therefore, the accused has committed the Crl.A.No.1612 of 2005 :-3-: offence punishable under Section 138 of the N.I.Act. 4. With the above allegation, the complainant approached the court of Judicial First Class Magistrate by filing a complaint upon which cognizance was taken and instituted C.C.No.1004 of 1999 and during the trial of the case, the original complainant himself was mounted to the box and examined as PW1 and Exts.P1 to P6 are produced. No evidence either oral or documentary was produced from the side of the defence. Considering the evidence and materials on record and the rival contentions raised by the parties, the learned Magistrate has formulated two points for his consideration among which first point is whether the complainant has established the case as alleged. After having considered certain authorities, as on the date which governs the field, the learned Magistrate especially in the light of the contentions advanced by counsel for the complainant and the accused therein, concluded that in order to attract the offence under Section 138 of the N.I.Act, in the case of ' _account closed_ ', it must be proved that at the time of issuance of cheque, there was live account Crl.A.No.1612 of 2005 :-4-: and thereafter, before presenting the cheque, the account was closed and it was further found that in this case, absolutely there is no evidence to show as to when the account was closed by the accused. Thus, according to the learned Magistrate, as the complainant miserably failed to discharge the above initial burden, the learned Magistrate is of the opinion that the offence is not attracted. It is on the basis of the above finding, the leaned Magistrate found that the complaint is not maintainable and accordingly, the accused is acquitted. 5. The learned counsel for the appellant submitted that in the light of the Division Bench decision of this Court in **Vathsan** v. **Japahari** [2003(3) KLT 972], the finding of the court below is incorrect and against the dictum laid down by this Court and the offence under Section 138 of the N.I.Act is attracted, even if the cheque in question is issued prior or after the closure of the account, if it is proved that there was no sufficient fund in the account maintained by the accused. Learned counsel for the respondent has no much ## Crl.A.No.1612 of 2005 :-5-: contention against the above settled position of law and the applicability of the same in the present case at hand. In the present case, from the facts and circumstances involved, it appears that Ext.P1 cheque is dated 23.5.1997 which, according to the complainant, issued by the accused to discharge liability that arose connected with the transaction taken place on 25.2.1997 on which date, according to the complainant, the accused borrowed a sum of `80,000/-. It is beyond dispute that the account was closed as early as on 9.5.1996, i.e., much prior to the date of issuance of Ext.P1 cheque. In answering the reference, the Division Bench in the above decision has held that the situations where cheques have been issued against an account, which has been closed prior to the date of drawal of the cheque, shall also come within the fold of Section 138 of the N.I.Act to attract the criminal liability. In view of the above Division Bench decision, Section 138 of the N.I.Act is attracted and the penal liability thereon, irrespective of the fact that whether the cheque in question is issued prior or after the closure of the account, provided the other ingredients Crl.A.No.1612 of 2005 :-6-: are established. 6. In the present case, it is relevant to note that though the evidence is over, the learned Magistrate, without considering the fact that whether the essential ingredients of Section 138 of the N.I.Act are attracted or not and without any venture in this regard, simply carried away by the contentions advanced by counsel for the complainant as well as the accused, on the point which I referred above and came to the conclusion, which cannot be approved in the light of the above decision. Therefore, the matter is required to be remanded to the trial court for fresh consideration, on the basis of the available evidence and materials as to whether the complainant has succeeded in establishing the offence as alleged against the accused, especially in the light of the law settled as per the decision cited supra. In the result, this appeal is allowed setting aside the judgment dated 29.7.2003 in C.C.No.1004 of 1999 of the court of Judicial First Class Magistrate, Chavakkad and the matter is remanded back to the trial court for fresh consideration and disposal, on the basis of the Crl.A.No.1612 of 2005 :-7-: evidence and materials available on record. As the calendar case originally pertains to the year 1997, the learned Magistrate is directed to dispose of the case as expeditiously as possible within two months from the date of appearance of the parties (appellant herein and the respondents), who are directed to appear before the trial court on **20[th] April, 2012** on which date the learned Magistrate is directed to post the above calendar case for fresh consideration and disposal of the same. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.1612 of 2005 :-8-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 Crl.A.No.1612 of 2005 :-9-: ## **JUDGMENT** Dated:11.11.2011