{"id":14817,"date":"2009-06-29T00:00:00","date_gmt":"2009-06-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-j-prakasan-vs-vasudevan-on-29-june-2009"},"modified":"2016-11-03T11:28:04","modified_gmt":"2016-11-03T05:58:04","slug":"v-j-prakasan-vs-vasudevan-on-29-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-j-prakasan-vs-vasudevan-on-29-june-2009","title":{"rendered":"V.J.Prakasan vs Vasudevan on 29 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
V.J.Prakasan vs Vasudevan on 29 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 3402 of 2005()\n\n\n1. V.J.PRAKASAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. VASUDEVAN, S\/O.PAZHANIMALA,\n                       ...       Respondent\n\n2. STATE OF KERALA,\n\n                For Petitioner  :SRI.T.M.SUNIL\n\n                For Respondent  :SRI.P.R.VENKETESH\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :29\/06\/2009\n\n O R D E R\n                    S.S. SATHEESACHANDRAN, J.\n                - - - - - - - - - - - - - - - - - - - - - - - - -\n                         Crl.R.P.No.3402 of 2005\n                - - - - - - - - - - - - - - - - - - - - - - - - -\n                           Dated: 29th June, 2009\n\n                                    ORDER\n<\/pre>\n
      Challenge in the revision is against the concurrent verdict of<\/p>\n
guilt rendered against the petitioner\/accused for the offence under<\/p>\n
Section 417 of the I.P.C. He was prosecuted on a complaint filed by<\/p>\n
the first respondent (hereinafter referred to as ‘the complainant’).<\/p>\n
The accused had pleaded not guilty to the offence. Negativing his plea<\/p>\n
of not guilty, after trial, the learned Magistrate found him guilty of the<\/p>\n
offence under Section 417 I.P.C., and convicting him thereunder he<\/p>\n
was sentenced to undergo simple imprisonment for six months. In<\/p>\n
appeal preferred by the accused, the learned Additional Sessions<\/p>\n
Judge confirmed the conviction and upheld the sentence without any<\/p>\n
modification. Against the concurrent finding of guilt and conviction<\/p>\n
and sentence imposed, the accused has preferred this revision<\/p>\n
impeaching its legality, propriety and correctness.<\/p>\n
      2. Short facts involved in the revision can be summed up thus:<\/p>\n
The case of the complainant is that towards discharge of a loan<\/p>\n
availed, the accused issued Ext.P1 cheque for a sum of Rs.60,000\/-<\/p>\n
promising its encashment on presentation in due course. The cheque<\/p>\n
presented was, however, dishonoured with endorsement ‘account<\/p>\n
Crl.R.P.No.3402\/05                 – 2 –<\/span><\/p>\n
closed’. After issuing a statutory notice intimating dishonour and<\/p>\n
demanding the sum covered by the instrument which was responded<\/p>\n
to with a reply denying the liability, the complainant launched<\/p>\n
prosecution against the accused filing a complaint imputing the<\/p>\n
offences punishable under Section 138 of the Negotiable Instruments<\/p>\n
Act(for short ‘the N.I.Act’) and 420 of the I.P.C.\n<\/p>\n
      3. The learned Magistrate, after an enquiry under Section 200<\/p>\n
of the Cr.P.C., took cognizance of the offence under Section 138 of<\/p>\n
the N.I.Act and     ordered summons to the accused. Accused, on<\/p>\n
appearance, pleaded not guilty. On behalf of the complainant<\/p>\n
including himself two witnesses were examined as P.Ws.1 and 2, and<\/p>\n
Exts.P1 to P7 were exhibited. The accused questioned under Section<\/p>\n
313 Cr.P.C. denying the prosecution evidence reiterated his plea of<\/p>\n
innocence. He had no defence evidence. The case was adjourned for<\/p>\n
arguments. The learned Magistrate, thereafter, altered the charge to<\/p>\n
Section 417 I.P.C. which was readover and explained to the accused,<\/p>\n
to which also he pleaded not guilty. Other than recalling of P.W.1, the<\/p>\n
complainant, and his further examination, no further evidence was<\/p>\n
adduced. Accused was again questioned under Section 313 Cr.P.C. He<\/p>\n
maintained his innocence and adduced no defence evidence. Learned<\/p>\n
Crl.R.P.No.3402\/05                – 3 –<\/span><\/p>\n
Magistrate, after examining the materials and hearing the counsel on<\/p>\n
both sides, found the accused guilty of the offence under Section 417<\/p>\n
I.P.C. and he was thereupon convicted and sentenced as indicated,<\/p>\n
which was confirmed in appeal without modification by the learned<\/p>\n
Additional Sessions Judge.\n<\/p>\n
      4. I heard the learned counsel for the accused and also the<\/p>\n
complainant. The allegations set out in the complaint and the<\/p>\n
materials tendered in the case do not constitute an offence under<\/p>\n
Section 417 of the I.P.C. and as such the conviction founded and<\/p>\n
sentence imposed against the accused are unsustainable under law<\/p>\n
and facts, is the submission of the learned counsel for the accused. A<\/p>\n
dishonour of cheque by itself cannot attract a charge under Section<\/p>\n
420 I.P.C. nor even under Section 417 I.P.C. in the absence of<\/p>\n
material to show that a false representation was made and the<\/p>\n
complainant was persuaded to do or omit to do something on the<\/p>\n
basis of such false representation, according to the learned counsel<\/p>\n
for the accused. There is total paucity of evidence in the case as to<\/p>\n
any false representation made by the accused and, further, issue of<\/p>\n
Ext.P1 cheque was alleged as in discharge of a loan availed much<\/p>\n
earlier and so much so, no offence under Section 417 I.P.C. was<\/p>\n
Crl.R.P.No.3402\/05                – 4 –<\/span><\/p>\n
attracted to the case and, thus, the conviction for that offence against<\/p>\n
him cannot be sustained is the submission of the counsel. The learned<\/p>\n
counsel relied on M.S.Muraleedharan v. P.S.Vijayakumar (ILR<\/a><\/p>\n
2006(3) Kerala 636) to contend that in order to constitute an offence<\/p>\n
under Section 420 I.P.C. there must be some inducement by the<\/p>\n
accused to the complainant at the initial stage.\n<\/p>\n
      5. The learned counsel for the accused was called upon to<\/p>\n
enlighten this court whether in the given facts of the case, even if<\/p>\n
conviction is found not sustainable under Section 417 I.P.C., if the<\/p>\n
materials produced establish an offence under Section 138 of the<\/p>\n
N.I.Act why the conviction and sentence against the accused should<\/p>\n
not be modified for such offence in exercise of the revisional<\/p>\n
jurisdiction vested with this court to correct the infirmity, if it is so<\/p>\n
found,       in the impugned judgments passed by the two inferior<\/p>\n
courts.     The learned counsel for   the accused relying on     Sohan<\/p>\n
Lal v. State of Rajasthan      (AIR<\/a> 1990 SC 2158) and Edward v.<\/p>\n
Victor Immanuel<\/a>        (2002(1) KLJ 101)     rendered with respect to<\/p>\n
ambit and scope of section 216 of the Cr.P.C. contended that this<\/p>\n
court   in exercise   of the  revisional   jurisdiction   cannot    alter<\/p>\n
the charge and convict the accused for a different offence and<\/p>\n
Crl.R.P.No.3402\/05                – 5 –<\/span><\/p>\n
sentence    him   thereunder.   Learned   counsel   for  the   accused<\/p>\n
vehemently urged that once the conviction of the accused founded on<\/p>\n
Section 417 I.P.C. is found unsustainable, he is entitled to an order<\/p>\n
of acquittal and he cannot be convicted for a different offence. It was<\/p>\n
also contended by the learned counsel placing reliance on Nagaraja<\/p>\n
Upadhya v. M.Sanjeevan (2008(1) KLD 543(kar.) that no offence<\/p>\n
under Section 138 would lie on dishonour of a cheque returned<\/p>\n
unpaid with endorsement ‘account closed’. Even if the materials<\/p>\n
produced in the case disclose commission of an offence under Section<\/p>\n
138 of the N.I.Act by the accused in view of his conviction and<\/p>\n
sentence under Section 417 IPC concurrently by the two inferior<\/p>\n
courts which cannot be sustained under law this court cannot in<\/p>\n
exercise of revisional jurisdiction modify\/alter the conviction to<\/p>\n
Section 138 of the N.I.Act and convict him thereunder, according to<\/p>\n
the learned counsel for the accused. Reliance is placed on<\/p>\n
Bhaskaran Nair v. Abdul Kareem<\/a> (2006(4) KLT 48) and Salajan<\/p>\n
v. Krishnankutty (2007(1) KLT (SN) Page 6 (Case No.9) by the<\/p>\n
learned counsel to contend in exercise of revisional jurisdiction such<\/p>\n
alteration or modification of the conviction for a different offence is<\/p>\n
not permissible. According to the learned counsel, as the two inferior<\/p>\n
Crl.R.P.No.3402\/05                – 6 –<\/span><\/p>\n
courts have not convicted him under Section 138 of the N.I.Act, it has<\/p>\n
the effect of an acquittal and it cannot be reversed, and so much<\/p>\n
there cannot be any conviction for such offence by the revisional<\/p>\n
court. Reliance is placed on State of Andhra Pradesh v. Thadi<\/p>\n
Narayana (AIR<\/a> 1962 SC 240) to contend that where several offences<\/p>\n
are charged against an accused person and he is acquitted of some<\/p>\n
offences and convicted of others in further proceedings against the<\/p>\n
conviction, the court cannot order his retrial for the offences in<\/p>\n
respect of which he was acquitted earlier.\n<\/p>\n
      6. Before examining the merit of the submissions made by the<\/p>\n
learned counsel for the accused that no alteration of the offence and<\/p>\n
conviction thereunder is permissible, it is appropriate to refer to a few<\/p>\n
aspects involved in the case. The accused prosecuted solely for the<\/p>\n
offence under Section 138 of the N.I.Act on a complaint imputing<\/p>\n
such offence, from the complainant, was given sufficient opportunity<\/p>\n
to meet the accusation made. After the entire prosecution evidence<\/p>\n
was over and also questioning of the accused under Section 313<\/p>\n
Cr.P.C., with the accused further stating he has no defence evidence,<\/p>\n
the case was adjourned for arguments. The order sheet of the case<\/p>\n
would show that the counsel for the accused reported that there was<\/p>\n
Crl.R.P.No.3402\/05                – 7 –<\/span><\/p>\n
no defence evidence on 31.12.1998. After eleven adjournments for<\/p>\n
arguments, on 20.5.1999, the learned Magistrate passed an order,<\/p>\n
after perusing the records, that the charge has to be altered to<\/p>\n
Section 417 I.P.C. Accordingly, the charge against the accused was<\/p>\n
altered on 20.5.1999, which was readover and explained to him to<\/p>\n
which he pleaded not guilty. The complainant examined as P.W.1 was<\/p>\n
then recalled and further examined. The accused was again<\/p>\n
questioned under Section 313 of the Cr.P.C. He reiterated his<\/p>\n
innocence and submitted that he has no defence evidence. The<\/p>\n
learned Magistrate, thereafter, hearing the counsel on both sides,<\/p>\n
arriving at the conclusion that he was guilty of the offence under<\/p>\n
Section 417 I.P.C. convicted him of that offence and imposed the<\/p>\n
sentence as indicated earlier.\n<\/p>\n
      7. The learned Magistrate had formed a conclusion on the<\/p>\n
materials tendered that as the account was closed before the cheque<\/p>\n
was handed over to the accused, and presented for encashment later<\/p>\n
with the result of its dishonour for the reason of the account closed,<\/p>\n
offence under Section 138 of the N.I.Act would not lie, but, only the<\/p>\n
offence under Section 417 of the I.P.C. Inevitably the view so formed<\/p>\n
by the learned Magistrate      led to alteration of the charge and<\/p>\n
Crl.R.P.No.3402\/05                 – 8 –<\/span><\/p>\n
proceeding against the accused under Section 417 of the I.P.C.<\/p>\n
leading to his conviction and sentence thereunder. Learned counsel<\/p>\n
for the accused is justified and fully correct in contending that the<\/p>\n
allegations made out in the complaint and as well as the materials<\/p>\n
produced do not constitute an offence under Section 417 I.P.C. and<\/p>\n
his conviction and sentence thereunder by the learned Magistrate<\/p>\n
which was confirmed by the Additional Sessions Judge in appeal<\/p>\n
cannot be legally sustained. The larger question, however, remains<\/p>\n
whether the accused proceeded under Section 138 of the N.I.Act on a<\/p>\n
complaint filed by the first respondent for such offence can get<\/p>\n
himself absolved of such offence if the materials tendered in the case<\/p>\n
have established his guilt for such offence for the sole reason the trial<\/p>\n
court    had proceeded against him after recording of the entire<\/p>\n
evidence in the case for a different offence and convicted and<\/p>\n
sentenced him for that offence and it was so confirmed by the<\/p>\n
appellate court. In examining that question, first of all, it has to be<\/p>\n
noted that the learned Magistrate was not at all justified in altering<\/p>\n
the charge from Section 138 of the N.I.Act to Section 417 of the<\/p>\n
I.P.C. after the entire evidence was recorded and questioning of the<\/p>\n
accused under Section 313 Cr.P.C., with the accused further<\/p>\n
Crl.R.P.No.3402\/05                 – 9 –<\/span><\/p>\n
submitting that he has no further evidence, for the reason that the<\/p>\n
cheque involved in the case was issued to the complainant by the<\/p>\n
accused in an account already closed. Whatever doubts persisting on<\/p>\n
the question whether a cheque issued in an account closed would<\/p>\n
come within the sweep of Section 138 of the N.I.Act had been settled<\/p>\n
by the Supreme Court in NEPC Micon Ltd. v. Magna Leasing Ltd.<\/a><\/p>\n
[1999(2) KLT (SC) (SN)39] = (AIR 1999 SC 1952) much earlier to<\/p>\n
the order passed by the learned Magistrate for altering the charge<\/p>\n
against the accused in the present case from Section 138 of the<\/p>\n
N.I.Act to Section 417 of the I.P.C. which, in fact, was ordered by him<\/p>\n
only on 12.1.2000. In the decision referred to above, the apex court<\/p>\n
has held thus:\n<\/p>\n
             “Reading Ss.138 and 140 together, it would be clear<\/p>\n
      that dishonour of the cheque by a bank on the ground<\/p>\n
      that account is closed would be covered by the phrase<\/p>\n
      ‘the amount of money standing to the credit of that<\/p>\n
      account is insufficient to honour the cheque’. Where<\/p>\n
      cheque is returned by the bank unpaid on the ground that<\/p>\n
      the ‘account is closed’, it would mean that cheque is<\/p>\n
      returned as unpaid on the ground that ‘the amount of<\/p>\n
Crl.R.P.No.3402\/05                 – 10 –<\/span><\/p>\n
      money standing to the credit of that account is insufficient<\/p>\n
      to honour the cheque’. Because cheque is dishonoured as<\/p>\n
      the amount of money standing to the credit of ‘that<\/p>\n
      account’ was ‘nil’ at the relevant time apart from it being<\/p>\n
      closed. Closure of the account would be an eventuality<\/p>\n
      after the entire amount in the account is withdrawn. It<\/p>\n
      means that there was no amount in the credit of “that<\/p>\n
      account” on the relevant date when the cheque was<\/p>\n
      presented for honouring the same. The expression “the<\/p>\n
      amount of money standing to the credit of that account is<\/p>\n
      insufficient to honour the cheque” is a genus of which the<\/p>\n
      expression “that account being closed” in specie. After<\/p>\n
      issuing the cheque drawn on an account maintained, a<\/p>\n
      person, if he closes “that account” apart from the fact<\/p>\n
      that it may amount to another offence, it would certainly<\/p>\n
      be an offence under S.138 as there was insufficient or no<\/p>\n
      fund to honour the cheque in ‘that account’. Further,<\/p>\n
      cheque is to be drawn by a person for payment of any<\/p>\n
      amount of money due to him ‘on an account maintained<\/p>\n
      by him’ with a banker and only on “that account” cheque<\/p>\n
Crl.R.P.No.3402\/05                – 11 –<\/span><\/p>\n
      should be drawn. This would be clear by reading the<\/p>\n
      Section along with proviso(a), (b) and (c).”<\/p>\n<\/blockquote>\n
Whatever controversy which persisted whether the dishonour of the<\/p>\n
cheque on the ground that the account is closed can be a factor to<\/p>\n
resist the prosecution under Section 138 of the N.I.Act had been laid<\/p>\n
to rest by the decision in NEPC Micon Ltd. v. Magna Leasing Ltd.<\/a><\/p>\n
referred to above. The Division Bench of this court in Vathsan v.<\/p>\n
Japahari<\/a> (2003 (3) KLT 972) after considering the impact of the<\/p>\n
decision referred to above rendered by the apex court as to the<\/p>\n
sustainability of a prosecution on a complaint under Section 138 of<\/p>\n
the N.I.Act on a dishonoured cheque which was issued on an account<\/p>\n
closed by the maker has held that such situations come within the<\/p>\n
sweep of Section 138 of the N.I.Act. In the above decision, this court<\/p>\n
has held thus:\n<\/p>\n
             “When a person draws a cheque, he will believe<\/p>\n
       that the cheque will, in no case, be dishonoured.<\/p>\n
       Therefore, such a defence is not allowed as per S.140 of<\/p>\n
       the Act. Therefore, we are of the view that once a person<\/p>\n
       had issued a cheque drawn on an account, which he was<\/p>\n
       holding in the bank, necessarily, he cannot take up a<\/p>\n
Crl.R.P.No.3402\/05                  – 12 –<\/span><\/p>\n
       defence that he did not have a subsisting account on the<\/p>\n
       date of drawal of the cheque. It will, if permitted,<\/p>\n
       undoubtedly, defeat the intent behind S.140 of the Act.<\/p>\n
       Situations where cheques have been issued against an<\/p>\n
       account, which has been closed prior to the date of<\/p>\n
       drawal of the cheque, shall also come within the fold of<\/p>\n
       S.138 of the Act to attract criminal liability.”<\/p>\n<\/blockquote>\n
A Single Bench of this court in Salim v. Thomas<\/a> (2004(1) KLT 816)<\/p>\n
following the decision of the Division Bench has held that the<\/p>\n
expression “on account maintained by him” in Section 138 of the<\/p>\n
N.I.Act “takes in account, that was maintained by him as also an<\/p>\n
account that is maintained by him.” It may be profitable to take note<\/p>\n
that the apex court in Goaplast Pvt. Ltd. v. Chico Ursula D’Souza<\/p>\n
(AIR<\/a> 2003 SC 2035) a case in which the question involved related to<\/p>\n
the commission of an offence under Section 138 of the N.I.Act on the<\/p>\n
instruction of the maker to the bank for stop payment, adverting to<\/p>\n
the decision in NEPC Micon Ltd. case, referred to above, has again<\/p>\n
reiterated that when a cheque is returned by a bank with an<\/p>\n
endorsement ‘account closed’, it would amount returning the cheque<\/p>\n
unpaid because “the amount of money standing to the credit of that<\/p>\n
Crl.R.P.No.3402\/05                 – 13 –<\/span><\/p>\n
account is insufficient to honour the cheque” as envisaged in Section<\/p>\n
138 of the N.I.Act. Such being the settled position of law, even on the<\/p>\n
date when the learned Magistrate altered the charge against the<\/p>\n
accused from Section 138 of the N.I.Act to Section 417 of the I.P.C., I<\/p>\n
find an examination of the question whether he has committed the<\/p>\n
offence under Section 138 of the N.I.Act has to be considered by this<\/p>\n
court in exercise of its revisional jurisdiction where it is noticed that<\/p>\n
the judgments rendered by two inferior courts suffer serious infirmity<\/p>\n
on account of the jurisdictional error in applying the correct principles<\/p>\n
of law to the facts of the case.\n<\/p>\n
      8. I do not find any merit in the submissions made by the<\/p>\n
learned counsel for the accused that this court cannot consider the<\/p>\n
question whether the accused has committed an offence under<\/p>\n
Section 138 of the N.I.Act as it would amount to altering of the<\/p>\n
charge against him violating the procedural requirements covered by<\/p>\n
Section 216 of the Cr.P.C. A number of authorities had been relied on<\/p>\n
by the counsel which have been referred to earlier to impress me<\/p>\n
that in exercise of revisional jurisdiction conviction and sentence of<\/p>\n
the accused cannot be modified and altered for a different offence. All<\/p>\n
the decisions referred to by the counsel related to the cases where<\/p>\n
Crl.R.P.No.3402\/05                – 14 –<\/span><\/p>\n
warrant trial is envisaged which cannot have applicability to cases<\/p>\n
where the Code contemplates only of summons trial. The offence<\/p>\n
under Section 138 of the N.I.Act and also 417 of the I.P.C., both of<\/p>\n
them come within the sweep of summons trial. Trial of a summons<\/p>\n
case is governed by Chapter XX of the Cr.P.C. Section 255(3) coming<\/p>\n
under that Chapter of the Code empowers a Magistrate to convict the<\/p>\n
accused of any offence triable under that Chapter, “which from the<\/p>\n
facts admitted or proved he appears to have committed, whatever<\/p>\n
may be the nature of the complaint or summons, if the Magistrate is<\/p>\n
satisfied that the accused would not be prejudiced thereby.”<\/p>\n
Summons cases contemplate only of posting the accused with the<\/p>\n
particulars of the offence imputed and asking him whether he pleads<\/p>\n
guilty or has any defence to make and there is no need or necessity<\/p>\n
of framing of charge. That being so, the decisions canvassed by the<\/p>\n
counsel as to the principles governing the alteration of charges<\/p>\n
covered by Section 216 of the Cr.P.C. cannot have any application to<\/p>\n
the facts of the present case. The decisions relied by the counsel<\/p>\n
Bhaskaran Nair v. Abdul Kareem<\/a> (2006(4) KLT 48) and Salajan<\/p>\n
v. Krishnankutty (2007(1) KLT (SN) Page 6 (Case No.9)       have no<\/p>\n
application to the facts     of the present case. The two decisions<\/p>\n
Crl.R.P.No.3402\/05                 – 15 –<\/span><\/p>\n
were relied on by the learned counsel to impress me of the limited<\/p>\n
scope of revisional jurisdiction. Needless to point out when<\/p>\n
miscarriage of justice is demonstrated, this court in exercise of<\/p>\n
revisional jurisdiction is duty bound to correct the infirmities in the<\/p>\n
orders\/judgments of the inferior court to render justice. The above<\/p>\n
decisions deal with other aspects like procedural irregularities and<\/p>\n
interference with the findings of fact in exercise of revisional<\/p>\n
jurisdiction and the facts involved therein have no similar or parallel<\/p>\n
with the present case. The decision relied by the learned counsel in<\/p>\n
State of Andhra Pradesh v. Thadi Narayana (AIR<\/a> 1962 SC 240)<\/p>\n
has no connection or parallel with the present case. In that case the<\/p>\n
question was whether the accused proceeded on different charges on<\/p>\n
acquittal in some of the charges and conviction in others, in the<\/p>\n
appeal preferred against the convicted charges can there be a retrial<\/p>\n
on the charges in which they were acquitted was considered and in<\/p>\n
that context it was held that retrial on the acquitted charges is not<\/p>\n
possible. That is not the situation covered in the present case and as<\/p>\n
such the decision has no applicability to this case. I need not say<\/p>\n
anything about the decision relied by the counsel, namely, Nagaraja<\/p>\n
Upadhya v. M.Sanjeevan (2008(1) KLD 543(kar.) which runs<\/p>\n
Crl.R.P.No.3402\/05                 – 16 –<\/span><\/p>\n
counter to and, in fact, without taking notice of the binding decisions<\/p>\n
of the apex court referred to earlier.\n<\/p>\n
      9. In the given facts of the case while exercising the revisional<\/p>\n
jurisdiction, this court has to examine whether the materials<\/p>\n
produced unerringly prove the guilt of the accused for the offence<\/p>\n
under Section 138 of the N.I.Act, the prosecution for which emanated<\/p>\n
from a private complaint filed by the first respondent and if so, in<\/p>\n
founding a conviction thereunder and passing appropriate sentence<\/p>\n
whether the accused would be prejudiced by such modification of the<\/p>\n
conviction and sentence altering from that imposed by two inferior<\/p>\n
courts. P.W.1 is the complainant. His evidence that Ext.P1 cheque<\/p>\n
was issued by the accused towards discharge of a loan has been<\/p>\n
found credible and convincing to both the courts below. The cheque<\/p>\n
presented was dishonoured with endorsement ‘account closed’ is also<\/p>\n
proved by the evidence of P.W.2, the Branch Manager of the bank in<\/p>\n
which the accused maintained the account and Ext.P2 dishonour<\/p>\n
memo and Ext.P7 certified extract of the ledger of that account. The<\/p>\n
accused, in fact, set up a plea of discharge disputing the transaction.<\/p>\n
He has contended that the cheque was issued in a blank form with<\/p>\n
signature alone as a security for availing a loan for a lesser amount of<\/p>\n
Crl.R.P.No.3402\/05                – 17 –<\/span><\/p>\n
Rs.10,000\/-. Defence so canvassed remain unsubstantiated by any<\/p>\n
material. The proved facts and circumstances clearly demonstrate<\/p>\n
that the accused has committed an offence under Section 138 of the<\/p>\n
N.I.Act. Now, the question is whether any prejudice would be caused<\/p>\n
to the accused in entering a finding of guilt against him in the proved<\/p>\n
facts of the case as aforementioned for the reason that he had been<\/p>\n
convicted for a difference offence under Section 417 of the I.P.C. by<\/p>\n
the two inferior courts. I have already pointed out that the trial<\/p>\n
against the accused on the complaint of the first respondent<\/p>\n
proceeded for the offence under Section 138 of the N.I.Act and after<\/p>\n
recording the entire evidence, the accused was questioned under<\/p>\n
Section 313 Cr.P.C. to elicit his explanation, if any, on the<\/p>\n
incriminating circumstances appearing in the evidence against him for<\/p>\n
such offence. Denying the prosecution evidence he has reiterated the<\/p>\n
defence canvassed that the cheque was issued in blank form with<\/p>\n
signature alone as security for availing a loan of Rs.10,000\/-.<\/p>\n
Opportunity     given to lead defence evidence was declined by the<\/p>\n
accused. So, evidently, he was given adequate opportunity to meet<\/p>\n
the charge under Section 138 of the N.I.Act for which the<\/p>\n
complainant prosecuted      him on the dishonour of Ext.P1 cheque<\/p>\n
Crl.R.P.No.3402\/05                 – 18 –<\/span><\/p>\n
issued by him. Merely because the trial court without taking note of<\/p>\n
the settled position of law proceeded to continue the proceedings<\/p>\n
altering the charge for a different offence, recorded further evidence<\/p>\n
and convicted him for such offence, the accused cannot suffer any<\/p>\n
prejudice in altering his conviction and sentence to Section 138 of the<\/p>\n
N.I.Act. Had he not been provided an opportunity to meet the charge<\/p>\n
under Section 138 of the N.I.Act, it could be stated that it is a case<\/p>\n
where he would suffer prejudice in altering the conviction and<\/p>\n
sentence. I am satisfied from the facts and circumstances involved<\/p>\n
that no prejudice is suffered by the accused by altering his conviction<\/p>\n
to Section 138 of the N.I.Act and sentencing him thereunder which is<\/p>\n
imperative to do justice to the complainant and further to advance<\/p>\n
the ends of justice as well. So much so, the conviction and sentence<\/p>\n
imposed against the accused by the trial court, and confirmed by the<\/p>\n
appellate court, for the offence under Section 417 I.P.C. is altered,<\/p>\n
and the accused is found guilty of the offence under Section 138 of<\/p>\n
the N.I.Act and convicted for such offence. Now on the question of<\/p>\n
sentence to be imposed, having regard to the nature of the offence<\/p>\n
involved and the long continuation of the proceedings, I find a<\/p>\n
deterrent punishment of imprisonment for a term against the accused<\/p>\n
Crl.R.P.No.3402\/05                 – 19 –<\/span><\/p>\n
is not essential to meet the ends of justice.\n<\/p>\n
      10. The accused is sentenced to undergo imprisonment till the<\/p>\n
rising of the court and to pay compensation of Rs.60,000\/- under<\/p>\n
Section 357(3) of the Cr.P.C. to the complainant within two months,<\/p>\n
failing which he shall undergo simple imprisonment for a period of<\/p>\n
four months. The accused shall appear and his sureties shall produce<\/p>\n
him before the Judicial Magistrate of First Class, Alathur on<\/p>\n
28.8.2009, and the learned Magistrate shall execute the sentence as<\/p>\n
directed.\n<\/p>\n
      The revision is disposed as above.\n<\/p>\n<\/p>\n
srd                           S.S. SATHEESACHANDRAN, JUDGE\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court V.J.Prakasan vs Vasudevan on 29 June, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-14817","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nV.J.Prakasan vs Vasudevan on 29 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/v-j-prakasan-vs-vasudevan-on-29-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"V.J.Prakasan vs Vasudevan on 29 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/v-j-prakasan-vs-vasudevan-on-29-june-2009\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2009-06-28T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2016-11-03T05:58:04+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"21 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/v-j-prakasan-vs-vasudevan-on-29-june-2009#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/v-j-prakasan-vs-vasudevan-on-29-june-2009\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"V.J.Prakasan vs Vasudevan on 29 June, 2009\",\"datePublished\":\"2009-06-28T18:30:00+00:00\",\"dateModified\":\"2016-11-03T05:58:04+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/v-j-prakasan-vs-vasudevan-on-29-june-2009\"},\"wordCount\":4115,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"High Court\",\"Kerala High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/v-j-prakasan-vs-vasudevan-on-29-june-2009#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/v-j-prakasan-vs-vasudevan-on-29-june-2009\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/v-j-prakasan-vs-vasudevan-on-29-june-2009\",\"name\":\"V.J.Prakasan vs Vasudevan on 29 June, 2009 - 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