Pavithran s/o Krishnan Master v. Retnakaran and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940** ## **Crl.Rev.Pet.No. 174 of 2012** **AGAINST THE ORDER/JUDGMENT IN CRA 273/2009 of ADDL. DISTRICT & SESSIONS COURT, VADAKARA AGAINST THE ORDER/JUDGMENT IN ST 614/2005 of J.M.F.C.,VADAKARA** ## **REVISION PETITIONER:** **PAVITHRAN S/O.KRISHNAN MASTER, AGE 50 YEARS, RAYAROTH HOUSE,MUTTUNKAL AMSOM, VATAKARA, KOZHIKODE. BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS:** |**1**|**RETNAKARAN**| |---|---| ||**S/O.RAMANKUTTY, AGE 40 YEARS, KUZHIPILLIL**| ||**HOUSE, MELUR AMSOM, KOYILANDI TALUK, KOZHIKODE.**| |**2**|**STATE OF KERALA**| ||**REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH**| ||**COURT OF KERALA, ERNAKULAM.**| ||**BY ADV. SRI.MOHANAN V.T.K.**| **OTHER PRESENT: SRI. E C BINEESH-PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. 174 of 2012** -2- ## **O R D E R** The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act. 2. Heard. 3. The learned counsel for the revision petitioner has argued that even though the account was closed automatically by the court below due to the transfer of the revision petitioner to another branch, the court below proceeded on the assumption that the revision petitioner had closed the account and in the said circumstances, the conviction and sentence passed by the courts below cannot be sustained. It is not disputed that the cheque was not honoured when presented for encashment. Ext.P2 memo issued by the bank would show that the cheque was **Crl.Rev.Pet.No. 174 of 2012** -3- dishonoured due to the following reason:- “Account closed and transferred on 26.10.2004”. 4. The learned counsel for the revision petitioner has argued that when the revision petitioner was transferred to Kolencherry branch, his account was automatically closed and transferred to the bank where he was transferred and it was not at the volition or request of the revision petitioner that the account was transferred and in the said circumstances, the courts below were not correct in holding that the account was closed by the revision petitioner. 5. It is borne out from the records that the account was closed. Even though the revision petitioner had a contention that the account was closed automatically due to his transfer, no evidence is available before the court to **Crl.Rev.Pet.No. 174 of 2012** -4- indicate that the account was automatically closed due to his transfer. There is also no material before the court to hold that there was sufficient funds in the account as on the date of dishonour of the cheque. 6. The learned counsel relied on the decision of this court in Muralidharan V. v. V.A. Kumaran and another [2016(3) KHC 845] and argued that no offence under Section 138 of the N.I. Act would be attracted in this case as there was no live account at the time when the cheque was issued. In Muralidharan (supra), the court was dealing with a situation as to whether the offence under Section 420 IPC would be attracted if the cheque was issued after closing the account. The court held that if the cheque was issued after closing the account, the offence under Section **Crl.Rev.Pet.No. 174 of 2012** -5- 420 IPC as well as Section 138 of the N.I.Act would be attracted. The court further held in Muralidharan (supra) that if the bank on its own volition had closed the account without the knowledge and consent of the account holder, as in the case of transferring the account to the 'Non Performing Account' (for short 'NPA'), the revision petitioner was not aware about the closing of the account and in the said situation, if at all the cheque was issued subsequent to the closing of the account as NPA, no offence under Section 420 IPC would be attracted, eventhough the offence under Section 138 of the N.I. Act would be attracted. 7. The facts in Muralidharan (supra) are different from the facts in the present case and in the said circumstances, the decision of Muralidharan (supra) has no **Crl.Rev.Pet.No. 174 of 2012** application at all to the case in hand. In this case, it is in the evidence that the amount was borrowed by the revision petitioner during October 2004 and a post-dated cheque was issued on the same date with date 19.11.2004. It is seen in the endorsement on the back side of Ext.P1 cheque that the cheque was presented before the bank of the complainant on 23.11.2004. However, the said cheque was returned by the bank of the revision petitioner only on 9.12.2004. The account was closed and transferred on 26.10.2004. This would show that even at the time of borrowing the amount, the revision petitioner was aware of the fact that the account was closed. It is settled law that once the account is closed, there is no amount in the account to honour the cheque. Eventhough the revision petitioner had a contention that the revision petitioner had borrowed an amount of Rs.10,000/- from PW2 and at the time of borrowing the said amount, the revision petitioner entrusted a blank signed cheque with PW2, who in turn handed over the said cheque to PW1 and thereafter, PW1 ## **Crl.Rev.Pet.No. 174 of 2012** -7- mis-utlised the said cheque to file the present complaint, there is absolutely no evidence before the court to show that the said contention of the revision petitioner is probable. Ext.P3 is the decree and Ext.P4 is the judgment in respect of the said cheque, which would also show that the contention of the revision petitioner was turned down by the civil court. It is true that the judgment of the civil court is relevant only within the sphere of Sections 40 to 44 of the Evidence Act. 8. The learned counsel for the revision petitioner has submitted that appeal is pending against the said decree and judgment. Whether the appeal is pending or not, Exts.P3 and P4 are not conclusive proof so far as the issue in this case is concerned. So far as this case is concerned, I am satisfied that the courts below correctly appreciated the oral and documentary evidence and concurrently found that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I. Act and committed the offence under Section 138 of the N.I. Act, rejecting the contentions of the revision petitioner. No material has been brought to the notice of this court to indicate that the appreciation of evidence or the concurrent ## **Crl.Rev.Pet.No. 174 of 2012** -8- finding of conviction by the courts below was perverse or incorrect. In view of the above reasons, the concurrent finding of conviction by the courts below under Section 138 of the N.I. Act, does not warrant any interference by this court. 9. The sentence awarded by the appellate court also does not warrant any interference by this court. In the result, this revision petition stands dismissed. Needless to state that if the revision petitioner had already deposited Rs.55,000/- before the court below as directed by this court as per order in Crl.M.A. No.554 of 2012, the said amount will be treated as the fine imposed by the appellate court. Dated this the 28[th] day of September 2018. ## sd ## **B. SUDHEENDRA KUMAR, JUDGE** . // True copy // PA to Judge dl/