Kerala High Court
P.S.Harish Kumar Shetty vs Lakshmana M.Shettigar on 29 July, 2016
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938
CRL.A.No. 239 of 2009
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CC 31/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KASARAGOD
....
PETITIONER/COMPLAINANT:
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P.S.HARISH KUMAR SHETTY,
S/O.LATE SHEENA SHETTY,
OPP. ST.JOSEPH CHURCH, KOTEKANI ROAD,
KASARAGODE.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT(S)/ACCUSED/STATE:
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1. LAKSHMANA M.SHETTIGAR,
S/O.LATE MONAPA SHETTIGAR,
DOOR NO.1-17-1229/2, NEAR SRINIDHI TOWERS,
OPP. MALARAYA DOOMAVATHI DAIVASTHANA ROAD,
URVA, CHILIMBI, KARNATAKA STATE.
2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADVS. SRI.V.V.SURENDRAN
SRI.P.A.HARISH
R2 BY PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 29-07-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
msv/
B. KEMAL PASHA, J.
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Crl. Appeal No.239 of 2009
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Dated this the 29th day of July, 2016
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~ Challenging the judgment of acquittal passed by the Judicial First Class Magistrate's Court-II, Kasaragod in CC No.31/2008, the complainant before the court below has come up in appeal. The case before the court below is as a result of a private complaint filed by the appellant herein as complainant, against the 1st respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The case of the complainant is that the accused, in discharge of his liability to the complainant, issued Ext.P1 cheque for 1,30,000/- dated 16.03.2007 which, on presentation, returned dishonoured for insufficiency of funds in the accounts of the Crl.A.239/2009 : 2 : accused. Ext.P4 lawyer's notice was caused to be issued by the complainant forwarding the demand under Section 138(b) of the Negotiable Instruments Act, 1881, which evoked a response in the form of a reply notice. The amount was not paid and hence, the complaint.
2. On the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P7 were marked. On the side of the accused, DWs 1 and 2 were examined and Exts.D1 to D16 were marked. The court below found the accused not guilty of the offence under Section 138 of the Negotiable Instruments Act and acquitted him under Section 255(1) Cr.P.C., through the impugned judgment.
3. It seems that the accused resisted the complaint before the court below mainly on two grounds. Even if the issuance of the cheque is admitted, the cheque was issued at Mangalore where both parties were there and, therefore, the complaint before the court below was not maintainable when the cheque was merely presented at a bank at Crl.A.239/2009 : 3 : Kasaragod. Secondly, there was an occasion for the accused to borrow an amount of 8,000/- from the finance company that was being conducted by the complainant, and the entire transactions between the parties were closed. Even though the said amount was subsequently repaid by way of settlement between the two parties through repayment of an amount of 16,000/- in lump as is evident from Ext.D3, the complainant has misused the blank signed cheque leaf obtained from the accused in the year 1997 when the original transaction had taken place. Subsequently, in the year 2000, the said account was closed and, therefore, a complaint under Section 138 of the Negotiable Instruments Act is not maintainable.
4. Heard learned counsel for the appellant and learned counsel for the 1st respondent.
5. Regarding the first contention that the cheque was presented at a bank at Kasaragod merely to invite the jurisdiction of the court below, it has become trite law that Crl.A.239/2009 : 4 : the bank at which the cheque has been presented for collection has to be considered for deciding the question of jurisdiction. When the cheque was presented at a bank at Kasaragod by the payee or holder in due course, it will invite the jurisdiction of the court below. Therefore, the said point decided by the court below is reversed.
6. Regarding the second aspect, it has to be considered that the accused himself has mounted the Box as DW1. He had examined DW2 also. He has proved Exts.D2 to D16. Ext.D3 cheque dated 20.04.1997 clearly shows that an endorsement was made at the instance of the complainant showing that the amount of 16,000/- was received from the accused. According to the accused, there was a transaction in which the accused had borrowed an amount or 8,000/- from the complainant in the year 1997. Certain blank signed cheque leaves were obtained by way of security by the complainant from the accused. Later, through Ext.D3 endorsement, the entire liability was closed. Crl.A.239/2009 : 5 : It is the case of the accused that by misusing one of the blank signed cheque leaves obtained from him by the complainant, the present complainant has been filed. It has been proved beyond doubt before the court below that the account was closed on 04.01.2000. Ext.P1 cheque is allegedly one dated 16.03.2007, around 7 years after the closure of the account.
7. Learned counsel for the appellant has pointed out that even in such a case the cheque was dishonoured with the dictum "funds insufficient". It is argued that had there been a valid closure of the account, even prior to the dishonour of the cheque, the cheque would have been dishonoured with the dictum "account closed". PW2 bank official was examined. He also admitted that the account was closed on 04.01.2000. It is true that in such case also a banker can return the cheque as bounced with a dictum that there is no sufficient balance amount in the account of the accused. It is also a case wherein there is no amount at all. Crl.A.239/2009 : 6 : Therefore, by the mere dishonour of the cheque with the dictum that there was no sufficient funds in the account, it will not invite an offence under Section 138 of the Negotiable Instruments Act in a case wherein the account was closed by the accused, and even then he manages to issue a cheque after the closure of the account. This Court had occasion to deal with the said question in Muralidharan v. Kumaran [2016 (3) KLT 315]. In such a context, an offence under Section 138 of the Negotiable Instruments Act cannot be attracted. Matters being so, there is absolutely nothing to interfere with the impugned judgment. The appeal is devoid of merits and is only to be dismissed, and I do so.
In the result, this Criminal Appeal is dismissed.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/29/07 // True Copy // PA to Judge