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1998 DIGILAW 300 (KER)

J. Krishnan Nair v. P. Jaseentha

1998-06-30

P.V.NARAYANAN NAMBIAR

body1998
Judgment :- The revision-petitioner was the accused in C.C. No. 64 of 1991 on the file of the Judicial First Class Magistrate's Court, Attingal who was convicted and sentenced to undergo simple imprisonment for three months under Section 138 of the Negotiable Instruments act, 1881 (for short "the Act") and to pay compensation of Rs. 13,600/- to the complainant under Section 357(3), Cr.P.C. and in default to undergo simple imprisonment for three months more. He was ordered to pay Rs. 1,500/- towards costs and in default to undergo simple imprisonment for thirty days. The appeal preferred by him before the Court of Session, Trivandrum was dismissed as per judgment in Crl. Appeal No. 225 of 1992. Hence, this revision. 2. The complaint in which the revision-petitioner was convicted was filed by the first respondent alleging offence punishable under Section 138 of the Act. It is the case of the complainant that the accused borrowed from her an amount of Rs. 10,000/- on 5-9-1990 undertaking to repay the same within four months and issued Ext. P1 cheque bearing the date 5-1-1991 drawn on the Chirayankil branch of the Federal Bank. The complainant presented the cheque for collection, but the same was dishonoured by the bank on 22-1-1991 on the ground that the account was closed. Notice followed, but the same could not be delivered. Thereafter a telegram demanding payment was sent which was received by the accused. Still, the amount remains unpaid. 3. Though several points have been raised in the revision, counsel for the petitioner pressed only one point. According to him, going by the averment in the complaint and the evidence adduced, no offence under Section 138 of the Act is committed by the petitioner. 4. It is conceded by either side that the account maintained by the petitioner/accused in the bank was closed on 17-12-1990. It is in evidence that the cheque bears the date 5-1-1991. It is the case of the complainant that the cheque was drawn on 5-9-1990. There is no evidence to show otherwise. The accused was not examined. So, counsel for the revision-petitioner argued that the cheque must be deemed to have drawn on 5-1-1991, the date shown on the face of the cheque which is after the closure of the bank account maintained by the closure by the accused and hence no offence under Section 138 of the Act is attracted. 5. The accused was not examined. So, counsel for the revision-petitioner argued that the cheque must be deemed to have drawn on 5-1-1991, the date shown on the face of the cheque which is after the closure of the bank account maintained by the closure by the accused and hence no offence under Section 138 of the Act is attracted. 5. It is very difficult to accept this submission. Offence under Section 138 of the Act is committed when a cheque drawn by a person on an account maintained by him with there banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank. So, two questions are to be examined in this case : (a) whether the cheque was drawn by the accused on the account maintained by him with the bank, and (b) whether offence was committed when the cheque was dishonoured on the ground that the account was closed. 6. As already stated, there is evidence on the side of the complainant to show that the cheque was drawn on 5-9-1990 on which day the drawer was maintaining an account with the banker which was closed only on 17-12-1990. So, it is clear that the cheque was drawn on the account maintained by the accused with the banker. But the argument of counsel for the petitioner is that the date of drawing of the cheque must be deemed to be on 5-1-1991, the date which is seen on the face of the document. He relied on the decision reported in Anil Kumar Sawhney v. Gulshan Rai, 1994 (1) KLT 111, and argued that the date seen on the face of the cheque should be treated as the date of drawal of the cheque. In the decision referred to above the Supreme Court was considering whether six months' period for presentation of the cheque, as provided under Section 138(a) of the Act is to be calculated from the date of actual issuance of the cheque or from the date which is seen on the cheque. In the decision referred to above the Supreme Court was considering whether six months' period for presentation of the cheque, as provided under Section 138(a) of the Act is to be calculated from the date of actual issuance of the cheque or from the date which is seen on the cheque. The Supreme Court held that a post-dated cheque becomes payable with effect from the date shown on the face of the said cheque. Paragraph 6 of the judgment makes it clear that the dispute in the appeals before the Supreme Court was as to what is the date from which the period of six months as contemplated under Section 138(a) of the Act is to be reckoned. So, the dictum laid down therein is totally inapplicable to the facts of the case on hand. In the present case, the cheque was drawn on 5-9-1990 on the date on which the accused had maintained account with the banker and hence, the provisions of Section 138 of the Act squarely applies. 7. The other question is whether when the cheque was returned in view of the fact that the account maintained by the accused was closed before it had become payable offence under Section 138 of the Act is attracted or not. This Court in the decision reported in Japahari v. Priya, 1993 (2) KLT 141, held that even in such cases, offence under Section 138 of the Act is attracted. If the drawer of the cheque closes his account after the cheque was issued and before the cheque reaches the bank, the cheque is bound to be returned unpaid on the ground of want of sufficient amount in the account of the drawer. Even in such cases, offence under Section 138 of the Act must be deemed to have been committed or else it will give premium to those unscrupulous persons who issue cheque and immediately thereafter, before the cheque is presented for collection, close their account and plead that they did not commit offence punishable under Section 138 of the Act. If the argument of counsel is accepted, the purpose of introducing Section 138 of the Act in the statute book will be defeated. If the argument of counsel is accepted, the purpose of introducing Section 138 of the Act in the statute book will be defeated. Section 138 of the Act is intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce the payee or holder in due course to act upon it. So, the argument of counsel that the revision-petitioner has not committed any offence when he closed his account before the cheque had become payable, is devoid of any substance and is only to be rejected. 8. Counsel for the revision-petitioner also relied on the unreported decision of this Court in Crl.R.P. No. 426 of 1994. The facts in Crl.R.P. No. 426 of 1994 are similar to the facts of the case on hand. But the learned Judge acquitted the accused on a wrong interpretation of the dictum laid down in the decision reported in Anil Kumar Sawhney v. Gulshan Rai, 1994 (1) KLT 111. Order in Crl.R.P. No. 426 of 1994 was passed without adverting to the fact that the Supreme Court in the decision referred to above was considering whether six months' period for presentation of the cheque, as provided under Section 138(a) of the Act is to be calculated from the date of actual issuance of the cheque or from the date which is seen on the cheque. The Supreme Court never considered the question whether offence is committed or not when the account was closed prior to the date on which the cheque becomes payable. So the decision in Crl.R.P. No. 426 of 1994 can be treated as per incuriam which I am not bound to follow. 9. No other points are argued by counsel. In view of the above discussion, the revision fails and is accordingly dismissed. Revision dismissed.