Kerala High CourtV.J.Prakasan vs Vasudevan on 29 June, 2009Author:S.S.SatheesachandranBench:S.S.SatheesachandranIN 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

                                    ORDERChallenge in the revision is against the concurrent verdict of

guilt rendered against the petitioner/accused for the offence underSection 417of 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 underSection 417I.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 'accountCrl.R.P.No.3402/05                 - 2 -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 underSection 200of the Cr.P.C., took cognizance of the offence underSection 138of

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 underSection

313Cr.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 toSection 417I.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 underSection 313Cr.P.C. He

maintained his innocence and adduced no defence evidence. LearnedCrl.R.P.No.3402/05                - 3 -Magistrate, after examining the materials and hearing the counsel on

both sides, found the accused guilty of the offence underSection 417I.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 underSection 417of 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 underSection

420I.P.C. nor even underSection 417I.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 underSection 417I.P.C. wasCrl.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 onM.S.Muraleedharan v. P.S.Vijayakumar (ILR2006(3) Kerala 636) to contend that in order to constitute an offence

underSection 420I.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 underSection 417I.P.C., if the

materials produced establish an offence underSection 138of 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 onSohan

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 ofsection 216of 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 andCrl.R.P.No.3402/05                - 5 -sentence    him   thereunder.   Learned   counsel   for  the   accused

vehemently urged that once the conviction of the accused founded onSection 417I.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 onNagaraja

Upadhya v. M.Sanjeevan(2008(1) KLD 543(kar.) that no offence

underSection 138would 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 underSection

138of the N.I.Act by the accused in view of his conviction and

sentence underSection 417IPC concurrently by the two inferior

courts which cannot be sustained under law this court cannot in

exercise of revisional jurisdiction modify/alter the conviction toSection 138of the N.I.Act and convict him thereunder, according to

the learned counsel for the accused.Reliance is placed onBhaskaran 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 inferiorCrl.R.P.No.3402/05                - 6 -courts have not convicted him underSection 138of 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 onState 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 underSection 138of 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 underSection 313Cr.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 wasCrl.R.P.No.3402/05                - 7 -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 toSection 417I.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 underSection 313of 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 underSection 417I.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 underSection 138of the N.I.Act would not lie, but, only the

offence underSection 417of the I.P.C. Inevitably the view so formed

by the learned Magistrate      led to alteration of the charge andCrl.R.P.No.3402/05                 - 8 -proceeding against the accused underSection 417of 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 underSection 417I.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 underSection 138of 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 fromSection 138of the N.I.Act toSection 417of the

I.P.C. after the entire evidence was recorded and questioning of the

accused underSection 313Cr.P.C., with the accused furtherCrl.R.P.No.3402/05                 - 9 -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 ofSection 138of the N.I.Act had been settled

by the Supreme Court inNEPC 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 fromSection 138of the

N.I.Act toSection 417of the I.P.C. which, in fact, was ordered by him

only on 12.1.2000. In the decisionreferred 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 ofCrl.R.P.No.3402/05                 - 10 -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 underS.138as 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" chequeCrl.R.P.No.3402/05                - 11 -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 underSection 138of the N.I.Act had been laid

to rest by the decision inNEPC Micon Ltd. v. Magna Leasing Ltd.referred to above.The Division Bench of this court inVathsan v.

Japahari(2003 (3) KLT 972) after considering the impact of the

decisionreferred to aboverendered by the apex court as to the

sustainability of a prosecution on a complaint underSection 138of

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 ofSection 138of the N.I.Act. Inthe 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 aCrl.R.P.No.3402/05                  - 12 -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 inSalim v. Thomas(2004(1) KLT 816)

following the decision of the Division Bench has held that the

expression "on account maintained by him" inSection 138of 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 inGoaplast 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 underSection 138of the N.I.Act on the

instruction of the maker to the bank for stop payment, adverting to

the decision inNEPC 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 thatCrl.R.P.No.3402/05                 - 13 -account is insufficient to honour the cheque" as envisaged inSection

138of 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 fromSection 138of the N.I.Act toSection 417of the I.P.C., I

find an examination of the question whether he has committed the

offence underSection 138of 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 underSection 138of the N.I.Act as it would amount to altering of the

charge against him violating the procedural requirements covered bySection 216of 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 whereCrl.R.P.No.3402/05                - 14 -warrant trial is envisaged which cannot have applicability to cases

where the Code contemplates only of summons trial. The offence

underSection 138of the N.I.Act and also 417 of theI.P.C., both of

them come within the sweep of summons trial. Trial of a summons

case is governed by Chapter XX of theCr.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 bySection 216of the Cr.P.C. cannot have any application to

the facts of the present case. The decisions relied by the counselBhaskaran 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 decisionsCrl.R.P.No.3402/05                 - 15 -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 inState 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 runsCrl.R.P.No.3402/05                 - 16 -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

underSection 138of 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 ofCrl.R.P.No.3402/05                - 17 -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 underSection 138of 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 underSection 417of 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 underSection 138of the N.I.Act and after

recording the entire evidence, the accused was questioned underSection 313Cr.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 underSection 138of the N.I.Act for which the

complainant prosecuted      him on the dishonour of Ext.P1 chequeCrl.R.P.No.3402/05                 - 18 -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 toSection 138of the

N.I.Act. Had he not been provided an opportunity to meet the charge

underSection 138of 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

toSection 138of 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 underSection 417I.P.C. is altered,

and the accused is found guilty of the offence underSection 138of

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 accusedCrl.R.P.No.3402/05                 - 19 -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/- underSection 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