IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3402 of 2005()
1. V.J.PRAKASAN,
... Petitioner
Vs
1. VASUDEVAN, S/O.PAZHANIMALA,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.T.M.SUNIL
For Respondent :SRI.P.R.VENKETESH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :29/06/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Crl.R.P.No.3402 of 2005
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Dated: 29th June, 2009
ORDER
Challenge in the revision is against the concurrent verdict of
guilt rendered against the petitioner/accused for the offence under
Section 417 of the I.P.C. He was prosecuted on a complaint filed by
the first respondent (hereinafter referred to as ‘the complainant’).
The accused had pleaded not guilty to the offence. Negativing his plea
of not guilty, after trial, the learned Magistrate found him guilty of the
offence under Section 417 I.P.C., and convicting him thereunder he
was sentenced to undergo simple imprisonment for six months. In
appeal preferred by the accused, the learned Additional Sessions
Judge confirmed the conviction and upheld the sentence without any
modification. Against the concurrent finding of guilt and conviction
and sentence imposed, the accused has preferred this revision
impeaching its legality, propriety and correctness.
2. Short facts involved in the revision can be summed up thus:
The case of the complainant is that towards discharge of a loan
availed, the accused issued Ext.P1 cheque for a sum of Rs.60,000/-
promising its encashment on presentation in due course. The cheque
presented was, however, dishonoured with endorsement ‘account
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closed’. After issuing a statutory notice intimating dishonour and
demanding the sum covered by the instrument which was responded
to with a reply denying the liability, the complainant launched
prosecution against the accused filing a complaint imputing the
offences punishable under Section 138 of the Negotiable Instruments
Act(for short ‘the N.I.Act’) and 420 of the I.P.C.
3. The learned Magistrate, after an enquiry under Section 200
of the Cr.P.C., took cognizance of the offence under Section 138 of
the N.I.Act and ordered summons to the accused. Accused, on
appearance, pleaded not guilty. On behalf of the complainant
including himself two witnesses were examined as P.Ws.1 and 2, and
Exts.P1 to P7 were exhibited. The accused questioned under Section
313 Cr.P.C. denying the prosecution evidence reiterated his plea of
innocence. He had no defence evidence. The case was adjourned for
arguments. The learned Magistrate, thereafter, altered the charge to
Section 417 I.P.C. which was readover and explained to the accused,
to which also he pleaded not guilty. Other than recalling of P.W.1, the
complainant, and his further examination, no further evidence was
adduced. Accused was again questioned under Section 313 Cr.P.C. He
maintained his innocence and adduced no defence evidence. Learned
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Magistrate, after examining the materials and hearing the counsel on
both sides, found the accused guilty of the offence under Section 417
I.P.C. and he was thereupon convicted and sentenced as indicated,
which was confirmed in appeal without modification by the learned
Additional Sessions Judge.
4. I heard the learned counsel for the accused and also the
complainant. The allegations set out in the complaint and the
materials tendered in the case do not constitute an offence under
Section 417 of the I.P.C. and as such the conviction founded and
sentence imposed against the accused are unsustainable under law
and facts, is the submission of the learned counsel for the accused. A
dishonour of cheque by itself cannot attract a charge under Section
420 I.P.C. nor even under Section 417 I.P.C. in the absence of
material to show that a false representation was made and the
complainant was persuaded to do or omit to do something on the
basis of such false representation, according to the learned counsel
for the accused. There is total paucity of evidence in the case as to
any false representation made by the accused and, further, issue of
Ext.P1 cheque was alleged as in discharge of a loan availed much
earlier and so much so, no offence under Section 417 I.P.C. was
Crl.R.P.No.3402/05 – 4 –
attracted to the case and, thus, the conviction for that offence against
him cannot be sustained is the submission of the counsel. The learned
counsel relied on M.S.Muraleedharan v. P.S.Vijayakumar (ILR
2006(3) Kerala 636) to contend that in order to constitute an offence
under Section 420 I.P.C. there must be some inducement by the
accused to the complainant at the initial stage.
5. The learned counsel for the accused was called upon to
enlighten this court whether in the given facts of the case, even if
conviction is found not sustainable under Section 417 I.P.C., if the
materials produced establish an offence under Section 138 of the
N.I.Act why the conviction and sentence against the accused should
not be modified for such offence in exercise of the revisional
jurisdiction vested with this court to correct the infirmity, if it is so
found, in the impugned judgments passed by the two inferior
courts. The learned counsel for the accused relying on Sohan
Lal v. State of Rajasthan (AIR 1990 SC 2158) and Edward v.
Victor Immanuel (2002(1) KLJ 101) rendered with respect to
ambit and scope of section 216 of the Cr.P.C. contended that this
court in exercise of the revisional jurisdiction cannot alter
the charge and convict the accused for a different offence and
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sentence him thereunder. Learned counsel for the accused
vehemently urged that once the conviction of the accused founded on
Section 417 I.P.C. is found unsustainable, he is entitled to an order
of acquittal and he cannot be convicted for a different offence. It was
also contended by the learned counsel placing reliance on Nagaraja
Upadhya v. M.Sanjeevan (2008(1) KLD 543(kar.) that no offence
under Section 138 would lie on dishonour of a cheque returned
unpaid with endorsement ‘account closed’. Even if the materials
produced in the case disclose commission of an offence under Section
138 of the N.I.Act by the accused in view of his conviction and
sentence under Section 417 IPC concurrently by the two inferior
courts which cannot be sustained under law this court cannot in
exercise of revisional jurisdiction modify/alter the conviction to
Section 138 of the N.I.Act and convict him thereunder, according to
the learned counsel for the accused. Reliance is placed on
Bhaskaran Nair v. Abdul Kareem (2006(4) KLT 48) and Salajan
v. Krishnankutty (2007(1) KLT (SN) Page 6 (Case No.9) by the
learned counsel to contend in exercise of revisional jurisdiction such
alteration or modification of the conviction for a different offence is
not permissible. According to the learned counsel, as the two inferior
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courts have not convicted him under Section 138 of the N.I.Act, it has
the effect of an acquittal and it cannot be reversed, and so much
there cannot be any conviction for such offence by the revisional
court. Reliance is placed on State of Andhra Pradesh v. Thadi
Narayana (AIR 1962 SC 240) to contend that where several offences
are charged against an accused person and he is acquitted of some
offences and convicted of others in further proceedings against the
conviction, the court cannot order his retrial for the offences in
respect of which he was acquitted earlier.
6. Before examining the merit of the submissions made by the
learned counsel for the accused that no alteration of the offence and
conviction thereunder is permissible, it is appropriate to refer to a few
aspects involved in the case. The accused prosecuted solely for the
offence under Section 138 of the N.I.Act on a complaint imputing
such offence, from the complainant, was given sufficient opportunity
to meet the accusation made. After the entire prosecution evidence
was over and also questioning of the accused under Section 313
Cr.P.C., with the accused further stating he has no defence evidence,
the case was adjourned for arguments. The order sheet of the case
would show that the counsel for the accused reported that there was
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no defence evidence on 31.12.1998. After eleven adjournments for
arguments, on 20.5.1999, the learned Magistrate passed an order,
after perusing the records, that the charge has to be altered to
Section 417 I.P.C. Accordingly, the charge against the accused was
altered on 20.5.1999, which was readover and explained to him to
which he pleaded not guilty. The complainant examined as P.W.1 was
then recalled and further examined. The accused was again
questioned under Section 313 of the Cr.P.C. He reiterated his
innocence and submitted that he has no defence evidence. The
learned Magistrate, thereafter, hearing the counsel on both sides,
arriving at the conclusion that he was guilty of the offence under
Section 417 I.P.C. convicted him of that offence and imposed the
sentence as indicated earlier.
7. The learned Magistrate had formed a conclusion on the
materials tendered that as the account was closed before the cheque
was handed over to the accused, and presented for encashment later
with the result of its dishonour for the reason of the account closed,
offence under Section 138 of the N.I.Act would not lie, but, only the
offence under Section 417 of the I.P.C. Inevitably the view so formed
by the learned Magistrate led to alteration of the charge and
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proceeding against the accused under Section 417 of the I.P.C.
leading to his conviction and sentence thereunder. Learned counsel
for the accused is justified and fully correct in contending that the
allegations made out in the complaint and as well as the materials
produced do not constitute an offence under Section 417 I.P.C. and
his conviction and sentence thereunder by the learned Magistrate
which was confirmed by the Additional Sessions Judge in appeal
cannot be legally sustained. The larger question, however, remains
whether the accused proceeded under Section 138 of the N.I.Act on a
complaint filed by the first respondent for such offence can get
himself absolved of such offence if the materials tendered in the case
have established his guilt for such offence for the sole reason the trial
court had proceeded against him after recording of the entire
evidence in the case for a different offence and convicted and
sentenced him for that offence and it was so confirmed by the
appellate court. In examining that question, first of all, it has to be
noted that the learned Magistrate was not at all justified in altering
the charge from Section 138 of the N.I.Act to Section 417 of the
I.P.C. after the entire evidence was recorded and questioning of the
accused under Section 313 Cr.P.C., with the accused further
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submitting that he has no further evidence, for the reason that the
cheque involved in the case was issued to the complainant by the
accused in an account already closed. Whatever doubts persisting on
the question whether a cheque issued in an account closed would
come within the sweep of Section 138 of the N.I.Act had been settled
by the Supreme Court in NEPC Micon Ltd. v. Magna Leasing Ltd.
[1999(2) KLT (SC) (SN)39] = (AIR 1999 SC 1952) much earlier to
the order passed by the learned Magistrate for altering the charge
against the accused in the present case from Section 138 of the
N.I.Act to Section 417 of the I.P.C. which, in fact, was ordered by him
only on 12.1.2000. In the decision referred to above, the apex court
has held thus:
“Reading Ss.138 and 140 together, it would be clear
that dishonour of the cheque by a bank on the ground
that account is closed would be covered by the phrase
‘the amount of money standing to the credit of that
account is insufficient to honour the cheque’. Where
cheque is returned by the bank unpaid on the ground that
the ‘account is closed’, it would mean that cheque is
returned as unpaid on the ground that ‘the amount of
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money standing to the credit of that account is insufficient
to honour the cheque’. Because cheque is dishonoured as
the amount of money standing to the credit of ‘that
account’ was ‘nil’ at the relevant time apart from it being
closed. Closure of the account would be an eventuality
after the entire amount in the account is withdrawn. It
means that there was no amount in the credit of “that
account” on the relevant date when the cheque was
presented for honouring the same. The expression “the
amount of money standing to the credit of that account is
insufficient to honour the cheque” is a genus of which the
expression “that account being closed” in specie. After
issuing the cheque drawn on an account maintained, a
person, if he closes “that account” apart from the fact
that it may amount to another offence, it would certainly
be an offence under S.138 as there was insufficient or no
fund to honour the cheque in ‘that account’. Further,
cheque is to be drawn by a person for payment of any
amount of money due to him ‘on an account maintained
by him’ with a banker and only on “that account” cheque
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should be drawn. This would be clear by reading the
Section along with proviso(a), (b) and (c).”
Whatever controversy which persisted whether the dishonour of the
cheque on the ground that the account is closed can be a factor to
resist the prosecution under Section 138 of the N.I.Act had been laid
to rest by the decision in NEPC Micon Ltd. v. Magna Leasing Ltd.
referred to above. The Division Bench of this court in Vathsan v.
Japahari (2003 (3) KLT 972) after considering the impact of the
decision referred to above rendered by the apex court as to the
sustainability of a prosecution on a complaint under Section 138 of
the N.I.Act on a dishonoured cheque which was issued on an account
closed by the maker has held that such situations come within the
sweep of Section 138 of the N.I.Act. In the above decision, this court
has held thus:
“When a person draws a cheque, he will believe
that the cheque will, in no case, be dishonoured.
Therefore, such a defence is not allowed as per S.140 of
the Act. Therefore, we are of the view that once a person
had issued a cheque drawn on an account, which he was
holding in the bank, necessarily, he cannot take up a
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defence that he did not have a subsisting account on the
date of drawal of the cheque. It will, if permitted,
undoubtedly, defeat the intent behind S.140 of the Act.
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
S.138 of the Act to attract criminal liability.”
A Single Bench of this court in Salim v. Thomas (2004(1) KLT 816)
following the decision of the Division Bench has held that the
expression “on account maintained by him” in Section 138 of the
N.I.Act “takes in account, that was maintained by him as also an
account that is maintained by him.” It may be profitable to take note
that the apex court in Goaplast Pvt. Ltd. v. Chico Ursula D’Souza
(AIR 2003 SC 2035) a case in which the question involved related to
the commission of an offence under Section 138 of the N.I.Act on the
instruction of the maker to the bank for stop payment, adverting to
the decision in NEPC Micon Ltd. case, referred to above, has again
reiterated that when a cheque is returned by a bank with an
endorsement ‘account closed’, it would amount returning the cheque
unpaid because “the amount of money standing to the credit of that
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account is insufficient to honour the cheque” as envisaged in Section
138 of the N.I.Act. Such being the settled position of law, even on the
date when the learned Magistrate altered the charge against the
accused from Section 138 of the N.I.Act to Section 417 of the I.P.C., I
find an examination of the question whether he has committed the
offence under Section 138 of the N.I.Act has to be considered by this
court in exercise of its revisional jurisdiction where it is noticed that
the judgments rendered by two inferior courts suffer serious infirmity
on account of the jurisdictional error in applying the correct principles
of law to the facts of the case.
8. I do not find any merit in the submissions made by the
learned counsel for the accused that this court cannot consider the
question whether the accused has committed an offence under
Section 138 of the N.I.Act as it would amount to altering of the
charge against him violating the procedural requirements covered by
Section 216 of the Cr.P.C. A number of authorities had been relied on
by the counsel which have been referred to earlier to impress me
that in exercise of revisional jurisdiction conviction and sentence of
the accused cannot be modified and altered for a different offence. All
the decisions referred to by the counsel related to the cases where
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warrant trial is envisaged which cannot have applicability to cases
where the Code contemplates only of summons trial. The offence
under Section 138 of the N.I.Act and also 417 of the I.P.C., both of
them come within the sweep of summons trial. Trial of a summons
case is governed by Chapter XX of the Cr.P.C. Section 255(3) coming
under that Chapter of the Code empowers a Magistrate to convict the
accused of any offence triable under that Chapter, “which from the
facts admitted or proved he appears to have committed, whatever
may be the nature of the complaint or summons, if the Magistrate is
satisfied that the accused would not be prejudiced thereby.”
Summons cases contemplate only of posting the accused with the
particulars of the offence imputed and asking him whether he pleads
guilty or has any defence to make and there is no need or necessity
of framing of charge. That being so, the decisions canvassed by the
counsel as to the principles governing the alteration of charges
covered by Section 216 of the Cr.P.C. cannot have any application to
the facts of the present case. The decisions relied by the counsel
Bhaskaran Nair v. Abdul Kareem (2006(4) KLT 48) and Salajan
v. Krishnankutty (2007(1) KLT (SN) Page 6 (Case No.9) have no
application to the facts of the present case. The two decisions
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were relied on by the learned counsel to impress me of the limited
scope of revisional jurisdiction. Needless to point out when
miscarriage of justice is demonstrated, this court in exercise of
revisional jurisdiction is duty bound to correct the infirmities in the
orders/judgments of the inferior court to render justice. The above
decisions deal with other aspects like procedural irregularities and
interference with the findings of fact in exercise of revisional
jurisdiction and the facts involved therein have no similar or parallel
with the present case. The decision relied by the learned counsel in
State of Andhra Pradesh v. Thadi Narayana (AIR 1962 SC 240)
has no connection or parallel with the present case. In that case the
question was whether the accused proceeded on different charges on
acquittal in some of the charges and conviction in others, in the
appeal preferred against the convicted charges can there be a retrial
on the charges in which they were acquitted was considered and in
that context it was held that retrial on the acquitted charges is not
possible. That is not the situation covered in the present case and as
such the decision has no applicability to this case. I need not say
anything about the decision relied by the counsel, namely, Nagaraja
Upadhya v. M.Sanjeevan (2008(1) KLD 543(kar.) which runs
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counter to and, in fact, without taking notice of the binding decisions
of the apex court referred to earlier.
9. In the given facts of the case while exercising the revisional
jurisdiction, this court has to examine whether the materials
produced unerringly prove the guilt of the accused for the offence
under Section 138 of the N.I.Act, the prosecution for which emanated
from a private complaint filed by the first respondent and if so, in
founding a conviction thereunder and passing appropriate sentence
whether the accused would be prejudiced by such modification of the
conviction and sentence altering from that imposed by two inferior
courts. P.W.1 is the complainant. His evidence that Ext.P1 cheque
was issued by the accused towards discharge of a loan has been
found credible and convincing to both the courts below. The cheque
presented was dishonoured with endorsement ‘account closed’ is also
proved by the evidence of P.W.2, the Branch Manager of the bank in
which the accused maintained the account and Ext.P2 dishonour
memo and Ext.P7 certified extract of the ledger of that account. The
accused, in fact, set up a plea of discharge disputing the transaction.
He has contended that the cheque was issued in a blank form with
signature alone as a security for availing a loan for a lesser amount of
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Rs.10,000/-. Defence so canvassed remain unsubstantiated by any
material. The proved facts and circumstances clearly demonstrate
that the accused has committed an offence under Section 138 of the
N.I.Act. Now, the question is whether any prejudice would be caused
to the accused in entering a finding of guilt against him in the proved
facts of the case as aforementioned for the reason that he had been
convicted for a difference offence under Section 417 of the I.P.C. by
the two inferior courts. I have already pointed out that the trial
against the accused on the complaint of the first respondent
proceeded for the offence under Section 138 of the N.I.Act and after
recording the entire evidence, the accused was questioned under
Section 313 Cr.P.C. to elicit his explanation, if any, on the
incriminating circumstances appearing in the evidence against him for
such offence. Denying the prosecution evidence he has reiterated the
defence canvassed that the cheque was issued in blank form with
signature alone as security for availing a loan of Rs.10,000/-.
Opportunity given to lead defence evidence was declined by the
accused. So, evidently, he was given adequate opportunity to meet
the charge under Section 138 of the N.I.Act for which the
complainant prosecuted him on the dishonour of Ext.P1 cheque
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issued by him. Merely because the trial court without taking note of
the settled position of law proceeded to continue the proceedings
altering the charge for a different offence, recorded further evidence
and convicted him for such offence, the accused cannot suffer any
prejudice in altering his conviction and sentence to Section 138 of the
N.I.Act. Had he not been provided an opportunity to meet the charge
under Section 138 of the N.I.Act, it could be stated that it is a case
where he would suffer prejudice in altering the conviction and
sentence. I am satisfied from the facts and circumstances involved
that no prejudice is suffered by the accused by altering his conviction
to Section 138 of the N.I.Act and sentencing him thereunder which is
imperative to do justice to the complainant and further to advance
the ends of justice as well. So much so, the conviction and sentence
imposed against the accused by the trial court, and confirmed by the
appellate court, for the offence under Section 417 I.P.C. is altered,
and the accused is found guilty of the offence under Section 138 of
the N.I.Act and convicted for such offence. Now on the question of
sentence to be imposed, having regard to the nature of the offence
involved and the long continuation of the proceedings, I find a
deterrent punishment of imprisonment for a term against the accused
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is not essential to meet the ends of justice.
10. The accused is sentenced to undergo imprisonment till the
rising of the court and to pay compensation of Rs.60,000/- under
Section 357(3) of the Cr.P.C. to the complainant within two months,
failing which he shall undergo simple imprisonment for a period of
four months. The accused shall appear and his sureties shall produce
him before the Judicial Magistrate of First Class, Alathur on
28.8.2009, and the learned Magistrate shall execute the sentence as
directed.
The revision is disposed as above.
srd S.S. SATHEESACHANDRAN, JUDGE