High Court Kerala dismissed a criminal revision against conviction for cheque dishonour under Section 138 NI Act. Court held essential ingredients were made and burden shifted to accused. Rejection of discharge plea due to lack of evidence.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P. BHAVADASAN
FRIDAY, THE 3RD DAY OF FEBRUARY 2012/14TH MAGHA, 1933
C.R.R.P. No:322 of 2012
CRA. NO:790/2010 OF 1ST ADDITIONAL SESSIONS JUDGE, KOZHIKODE IN C.C. NO:713/2008 OF THE J.F.C.M.-I, KOZHIKODE
REVISION PETITIONER/APPELLANT/ACCUSED:
GANGADHARAN, S/O. CHANDU, AGED 49 YEARS, PURAMBAGATH HOUSE, VILAKKOTTUR P.O, THUVAKKUNNU, KANNUR DISTRICT.
BY ADVS. SRI. A. MOHAMED MUSTAQUE SRI. U.P. BALAKRISHNAN
RESPONDENTS/RESPONDENTS/COMPLAINANT:
1. SREE GOKULAM CHITS AND FINANCE COMPANY LIMITED, DIVISIONAL OFFICE, VYKKOM MOHAMMED BASHEER ROAD, KOZHIKODE - 673 517 REPRESENTED BY LEGAL ASSISTANT SAVITHA K.V, AGED 32 YEARS.
2. THE STATE OF KERALA
BY
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SP
P. BHAVADASAN, J.
ORDER
The accused was prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty. He was therefore convicted and sentenced to undergo simple imprisonment for two months and to pay a fine of Rs.77,500/-, and in default, to undergo simple imprisonment for two months. It was also directed that if the fine amount is realized, the same shall be paid to the complainant under Section 357(1) Cr.P.C. In appeal, the appellate court confirmed the conviction but modified the sentence as one to undergo imprisonment till the rising of the court and to pay a fine of Rs.80,000/-, and in default to undergo simple imprisonment for one month. It was also directed that if the fine amount was realized, it should be paid to the complainant as compensation.
Crl.R.P.322/2012. 2
the accused was a subscriber to chit No.J2F 797/20 conducted by the company. He auctioned the same and obtained prize money. Thereafter he defaulted in payment of instalments due from him. An amount of Rs.92,900/- is due from the accused towards the said transaction. After several demands for payment, the accused issued Ext.P2 cheque for the same amount. The cheque on presentation bounced for want of funds in the account of the accused. Notice issued to the accused was returned with the endorsement unclaimed. Hence the complaint was laid.
Crl.R.P.322/2012. 3
had Exts.P1 to P8 marked. It is seen from the judgment of the trial court that questioning under Section 313 was dispensed with. However, the accused filed a statement in which it is stated that he had a chit transaction with the complainant company. He also accepted that he bid the chit and received the prize money. His specific case was that he was a subscriber to another chit for a sum of Rs.1,00,000/- conducted by Nadapuram branch of the complainant company and the price amount in that chit was adjusted towards the chit in question. He disputed that he issued Ext.P2 cheque in discharge of any liability. According to him, the complainant had obtained a signed blank cheque at the time of disbursing the prize money and put forward a false case. He however chose to adduce no evidence.
Crl.R.P.322/2012.
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that Ext.P2 cheque was infact issued for the discharge of the debt due to the company. Accordingly, the accused was found guilty. Conviction and sentence as already mentioned followed. In appeal, the appellate court confirmed the conviction and modified the sentence as mentioned earlier.
Crl.R.P.322/2012. 5
K.L.T.1027) the essential allegations that are to be made in a complaint filed regarding the offence under Section 138 N.I. Act are given. On going through the decision as a whole, this court could not find that it is necessary to plead that inspite of notice the amount remained unpaid. The essential ingredients are:- (i) the cheque was drawn on an account maintained by the accused in a Bank (ii) that the cheque was dishonoured for want of funds in the account of the accused. It was these aspects which were treated as the essential pleadings necessary to attract Section 138 N.I. Act.
“2(d). “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Crl.R.P.322/2012. 6
Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;”
be seen that the main ingredients necessary to attract the offence are (i) a cheque is drawn by a person on an account maintained by him, (ii) issued for discharge of any liability or debt (iii) the cheque is returned by the Bank indicating (iv) either the amount is insufficient, or it exceeds the amount arranged to be paid from that account. These are the essential ingredients to attract the offence punishable under Section 138 N.I.Act. The proviso only carves out certain conditions. In the decision relied on by the learned counsel for the revision petitioner, the issue considered was only regarding the main provision and not the proviso. The decision does go on to say that the conditions stated in
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the proviso have to be pleaded. Moreover, it is well settled that the complaint and the sworn statement have to be read together. Since the complaint contained necessary ingredients, the first contention of the revision petitioner has necessarily to fail.
8
Crl.R.P.322/2012.
Crl.R.P.322/2012. 9
present proceedings. If that be the case, it is for him to establish the said fact. He made no efforts to do so. He should have atleast call for the records from the company. Having not taken any steps in this regard, his plea of discharge has been rightly found against.
Crl.R.P.322/2012.
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offence punishable under Section 138 of the Negotiable Instruments Act. The findings rendered by the courts below on an appreciation of the evidence are not shown to be perverse.
The result is that this revision is without merits
and it liable to be dismissed. I do so.
P. BHAVADASAN, JUDGE
sb.
3 issues framed by the court
Whether the complaint attracted Section 138 NI Act and possessed essential ingredients.
Whether the person who laid the complaint was competent to examine as a witness.
Whether there was proof of discharge of debt by the adjustment of chit prize money.
Colour shows how this judgement treated each authority
Mohammed Rasheed v. State of KeralaReferred¶33
(1993(2) K.L.T.1027)
5 provisions across 2 enactments
GANGADHARAN
SREE GOKULAM CHITS AND FINANCE COMPANY LIMITED
THE STATE OF KERALA
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
