P.S. Hareesh Kumar Shetty v. D. Vijayakumar Shetty and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941** ## **CRL.A.No.1537 OF 2007** **AGAINST THE JUDGMENT DATED 05-06-2007 IN CC NO.613/2006 OF CHIEF JUDICIAL MAGISTRATE ,KASARAGOD** ## **APPELLANT/COMPLAINANT:** **P.S.HAREESH KUMAR SHETTY, KOTTEKANI, AGED 55 YEARS, S/O LATE SHEENA SHETTY(LACHIL HOUSE), KALYANI SHEENA SHETTY COMPOUND, KOTTARA, P.O.ASHOK NAGAR, BANGALORE 575006.** **BY ADV. SRI.M.SASINDRAN** ## **RESPONDENTS/ACCUSED:** **1 D.VIJAYAKUMAR SHETTY, AGED ABOUT 45 YEARS, S/O VEERAPPA SHETTY, DASAGUE HOUSE, DERABAIL, MELEMAR, KONCHADY, MANGALORE 575006. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **R1 BY ADVS. SRI. T.SETHUMADHAVAN (SR.) SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH SRI.T.SETHUMADHAVAN R2 BY PUBLIC PROSECUTOR SRI. T.R. RANJITH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.A.No.1537/ 2007** ## **-: 2 :-** Dated this the 4[th] day of February,2020 ## J U D G M E N T Order of acquittal of accused dated 05.06.2007 on the file of Chief Judicial Magistrate, Kasaragod, in a prosecution instituted under Section 138 of the Negotiable Instruments Act, 1881(for short 'the N.I. Act'), is challenged by the complainant in C.C. No.613/2006. 2. The prosecution case is that accused borrowed an amount of Rs.1,90,000/- on 26.01.2006 from complainant at his house in Mangalapuram and issued to the complainant Ext.P1 cheque post dated to 27.04.2006 drawn on Canara Bank, Urva Market, Mangalore Branch. The cheque on presentment was dishonoured on the ground that account owned by the accused was closed. Later, a demand notice calling upon the accused to discharge the debt was sent which he accepted. No reply was sent and therefore, after waiting for the prescribed period of time fixed by the statute, complaint under Section 138 of the N.I. Act was filed. **Crl.A.No.1537/ 2007** ## **-: 3 :-** 3. The accused after having appeared before the court below pleaded not guilty and contested the case. On the side of the appellant, he got examined as PW1 and Exts.P1 to P6 were marked. After prosecution evidence was over, the accused was examined and in his statement given under Section 313 of the Code of Criminal Procedure, 1973(for short 'the Cr.P.C.'), he pleaded that Ext.P1 was issued as a blank cheque. He disputed the alleged transaction dated 26.1.2006 with the complainant. According to him, he had closed the account as early on 27.12.1995 and Ext.P1 cheque had been issued about 15 years back when he had some business transaction with the complainant. The gist of his contention is that blank cheque given to the appellant was filled up and misused and therefore, it is not enforceable under law at all. On the side of the accused, the Manager of the drawee bank was summoned and examined as DW1 and he produced Ext.D1 letter proving the date of closure of account. 4. The court below having heard both sides, took the view that complainant failed to prove the **Crl.A.No.1537/ 2007** ## **-: 4 :-** transaction and therefore, Ext.P1 cheque cannot be taken to have been issued in discharge of a legally enforceable debt. It also held that there are circumstances in the case to suggest that Ext.P1 was issued as a blank cheque. On these two grounds, accused was found to be not guilty of offence punishable under Section 138 of the N.I. Act and the impugned order of acquittal was passed. 5. I heard the learned counsel for the appellant/complainant as well as the learned counsel for the first respondent/accused. 6. It was contended on behalf of the appellant that the court below failed to take notice of the material evidence given by PW1/appellant in respect of date of issue of cheque as well as passing of consideration. It was argued that had the entire evidence and circumstances been meticulously scrutinised, it would certainly have been found that Ext.P1 cheque was been issued in discharge of legally enforceable debt. On the other hand, the learned counsel for the accused submitted that the trial court lacked territorial **Crl.A.No.1537/ 2007** ## **-: 5 :-** jurisdiction inasmuch as the alleged execution of cheque was in Mangalore, a place falling within the territorial limits of courts in the State of Karnataka. It was also argued that inasmuch as the account of the accused is shown to have been closed as early as in 1995, there is least probability for the accused to have issued the cheque or entered into any transaction on 26.01.2006 as alleged. 7. The question for consideration is, whether Ext.P1 cheque was issued in discharge of legally enforceable debt alleged to have been incurred by the accused. The signature in Ext.P1 cheque is not disputed by the accused at all. This is clear not only from the cross-examination of PW1; but also from the separate statement submitted by him along with answers given under Section 313 of the Cr.P.C. It is seen from Ext.P1 that the ink used for signing the cheque as well as drawing other writings are different. Even PW1 admitted this, but he sought to explain the difference in ink by saying that at the time when Ext.P1 cheque was **Crl.A.No.1537/ 2007** ## **-: 6 :-** delivered at his residence, it had already been filled up. On going through the testimony of PW1, I do not find any reason to disbelieve this explanation at all. Accused did not bring forth any evidence rebutting this part of the evidence given by the appellant at all. 8. PW1 further said that accused was known to him very previously and they were business friends for the last 18 years. This is admitted by the accused in the statement given by him under Section 313 of the Cr.P.C. PW1 claims to be a moneylender and this also appears to be correct. The sole contention of the accused is that Ext.P1 having been issued more than a decade back could not be enforced under law. Having gone through the entire evidence on record, I am of the opinion that there is no probability for the said contention of the accused being true inasmuch as the testimony of PW1 that the transaction as well as the issue of cheque was on 26.1.2006 could not be successfully rebutted by any circumstances. The fact that he is a moneylender shows that he had sufficient source for raising the **Crl.A.No.1537/ 2007** ## **-: 7 :-** fund also. This being the situation, the view taken by the court below that complainant failed to prove the money transaction as on 26.01.2006 is not factually correct at all. The finding of court below is contrary to the evidence on record and is therefore perverse and unreasonable. Since Ext.P1 has been shown to have been validly issued, I hold that presumption of consideration under Section 139 of the N.I. Act is also available to Ext.P1. The accused failed to rebut the presumption by establishing a probable defence. 9. The contention of the learned counsel for the respondent that the trial court lacked territorial jurisdiction cannot hold good inasmuch as the cheque was admittedly presented for encashment before the South Indian Bank, Kasaragod, which is within the territorial limit of the trial court. In this respect, a decision of the Hon'ble Supreme Court in Shamshad Begum v. B. Mohammed [2008 KHC 6963] is relevant, in which, it was held that the place of presentation is one of the components determining territorial jurisdiction of **Crl.A.No.1537/ 2007** ## **-: 8 :-** a court empowered to try cases under Section 138 of the NI Act. There can also be no doubt that prosecution under Section 138 of the N.I. Act would be maintainable on the basis of a cheque which is issued against an account which has already been closed. In this respect, a decision of this Court in Rajesh K.S. v. K.M. Basheer and Another [2017 KHC 662] relying on an earlier Division Bench of this Court in Vathsan v. Japahari [2003 (3) KLT 972] held that prosecution under Section 138 of N.I. Act could very well rest even upon cheques issued after closure of account previously maintained by the drawer. 10. Having regard to the discussion made above, I am of the opinion that the appellant succeeded in proving that accused issued Ext.P1 cheque in discharge of legally enforceable debt. There is no dispute that complaint was filed under Section 142 of the N.I. Act after complying with all statutory formalities contemplated under Section 138 of the N.I.Act. Therefore, the impugned order of acquittal dated 05.06.2007 requires to be **Crl.A.No.1537/ 2007** ## **-: 9 :-** interfered with and reversed. This court, being an appellate court, has every power under Section 386 of Code of Criminal Procedure while setting aside the order of acquittal, to find the accused guilty and pass sentence on him according to law. 11. Having considered the facts and materials on record, I am of the view that the respondent/accused should be convicted under Section 138 of the Act and sentenced to undergo simple imprisonment for a day till rising of Court and pay cheque amount as compensation. In the result, appeal succeeds and setting aside the order of acquittal dated 05.06.2007, the first respondent/accused is convicted of offence punishable under Section 138 of the N.I.Act and is sentenced to undergo simple imprisonment for a day till the raising of the court and pay an amount of Rs.1,90,000/- (Rupees one lakh ninety thousand only) as compensation to the appellant/complainant under Section 357 (3) of the Cr.P.C. In case he defaults payment of compensation either to the complainant in person or deposits in court as the **Crl.A.No.1537/ 2007** ## **-: 10 :-** case may be, he shall undergo simple imprisonment for three more months. Issue free copy of the judgment to the respective parties, as the case may be. ## **Sd/-** ## T.V.ANILKUMAR,JUDGE DST/shg //True copy// P.A.To Judge