An appellant appealed an acquittal in a cheque-bounce case. The High Court upheld the acquittal, finding the complainant failed to prove the accused maintained the account in question, as there was a name mismatch between the accused and the account holder, rendering Section 138 of the N.I. Act inapplicable.
Criminal Appeal dismissed; order of acquittal confirmed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935
CRL.A.No. 1229 of 2003 (E)
Crl.L.P. 53/2003 of HIGH COURT OF KERALA DATED 05-06-2003
AGAINST THE ORDER/JUDGMENT IN ST 7043/1998 of J.M.F.C.,IRINJALAKUDA DATED 18-01-2003
APPELLANT:COMPLAINANT :
K.O.JOSE, S/O.OUSEPH, KOONAN HOUSE, IRINJALAKUDA.
BY ADV. SRI.S.RAJEEV
RESPONDENTS: STATE & ACCUSED :
R1 BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR R2 BY ADV. SRI.P.DEEPAK
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.A.No.1229 of 2003
Dated this the 23rd day of September, 2013
JUDGMENT
The above appeal is directed against the judgment dated 18/01/2003 in S.T.No.7043 of 1998 of the court of Judicial First Class Magistrate, Irinjalakuda at the instance of the complainant in a prosecution for the offence punishable under Section 138 of the N.I. Act since the learned Magistrate by the impugned judgment acquitted the accused under Section 255 (1) of Cr.P.C.
Crl.A.No.1229 of 2003
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and therefore, Section 138 of the N.I. Act is not attracted and accordingly the accused is acquitted. It is against the above finding and order of acquittal the present appeal is filed.
very opening words of Section 138 of the N.I. Act shows that in order to attract the penal liability under Section 138 of the N.I. Act it is incumbent upon the complainant to plea and prove the
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fact that the cheque in question drawn by a person namely the accused on an account maintained by him with banker. In the present case even though the other facts claimed to have proved by the complainant, the evidence on record shows that name of the account holder of Ext.C2 ledger, to which Ext.P1 cheque is pertained, is not the accused. The name of the accused shown as Raju Raphel, Thottiyan House, whereas the name of the account holder is Rajan Raphel and not the accused Raju Raphel. So, the complainant has miserably failed to substantiate essential ingredients of Section 138 of the N.I. Act. Therefore, I find no reason to interfere with the order of acquittal recorded by the trial court.
In the light of the above discussion and the materials and evidence referred to above, according to me, the above appeal, preferred against the order of acquittal, is devoid of merit and accordingly the same is dismissed.
V.K.MOHANAN, JUDGE
skj
2 issues framed by the court
Whether the magistrate erred in acquitting the accused for drawing a cheque in his own name on an account held in another person's name, failing to attract Section 138 of the N.I. Act.
Whether the essential ingredient that the cheques be drawn by the accused on an account maintained by him was proved.
2 provisions across 2 enactments
K.O. Jose
State of Kerala
Raju Raphel
V.K. Mohanan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
