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2012 DIGILAW 66 (KER)

P. S. Ganesh v. State of Kerala

2012-01-12

P.BHAVADASAN

body2012
ORDER : P. Bhavadasan, J. 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 three months and to pay a fine of Rs. 1,00,000/-, and in default, to undergo simple imprisonment for three months. In appeal, the appellate court confirmed the conviction and sentence. 2. According to the complainant, the accused had borrowed a sum of Rs. 1,00,000/- from the complainant and to discharge the debt, the accused had issued Ext. P2 cheque. The cheque, on presentation, returned with the endorsement 'Account closed'. Statutory notice issued to the accused invoked no reply and since the amount remained unpaid, the complaint was lodged by the complainant. 3. Cognizance of the offence was taken by the trial court. On summons, the accused entered appearance, and particulars of the offence were read out to the accused, to which he pleaded not guilty and claimed to be tried. The complainant examined himself as P.W.1 and marked Exts. P1 to P6. After the close of the prosecution evidence, the accused was questioned under Section 313 Criminal Procedure Code, in which he denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He however chose to adduce no evidence. The court below on an analysis of the evidence in the case came to the conclusion that the offence has been made out and therefore convicted and sentenced him as already mentioned. The appeal filed by the accused did not succeed. 4. Learned counsel appearing for the revision petitioner pointed out that the entire amount covered by the cheque has been paid to the complainant and that the suit filed for realisation of the cheque amount was dismissed for non- payment of court fee. The court fee was not paid because the entire amount covered by the cheque has been received by the complainant. It is contended that the cheque was returned on the ground that the account was closed, it does not mean that the cheque was returned dishonoured for want of funds. Learned counsel pointed out that if the account was not closed on the volition of the accused, no offence under Section 138 could be attracted. 5. It is contended that the cheque was returned on the ground that the account was closed, it does not mean that the cheque was returned dishonoured for want of funds. Learned counsel pointed out that if the account was not closed on the volition of the accused, no offence under Section 138 could be attracted. 5. Though the above contentions may look formidable, but on a close scrutiny, they can be found to be without any substance whatsoever. There is nothing to show that the amount has been paid as claimed by the accused since there is no evidence in that regard. It is true that P.W.1, the power of attorney holder of the complainant, stoutly denied the repayment of the amount by the accused. The fact that the suit filed for realisation of the amount might have been dismissed for non-payment of court fee, that does not lead to the conclusion that the amount due has been received by the complainant. 6. Signature in Ext. P1 cheque is admitted. Its issuance is also admitted. The claim of the accused was that signed blank cheque was given to the complainant as security for the amount borrowed by him. His further case is that he had repaid the entire amount and that the signed blank cheque issued by him has been misused. First of all, the plea is one of discharge, the burden of proof is on the accused. There is no evidence produced by the accused to show that he had paid the amount borrowed from the complainant. If as a matter of fact the amount has been paid, there was no justification for him not to get back the cheque. There is no evidence to indicate that he had taken any steps to have the cheque returned. At least he should have issued stop memo to the Bank. 7. As regards the dishonour of the cheque, it is well established by now that it attracts Section 138 of the Negotiable Instruments Act. The contention of the accused that Section 138 can be attracted only when the account is in operation is a matter to be proved by him. If the account is closed not due to his request, it is for him to establish the said fact. There was no attempt from his side to do so. 8. The findings of the court below are findings of fact. If the account is closed not due to his request, it is for him to establish the said fact. There was no attempt from his side to do so. 8. The findings of the court below are findings of fact. The accused did not chose to send a reply to the statutory notice issued by the complainant, and if he had a case that the complainant had misused the cheque, he should have replied immediately, instead he remained passive. 9. Both the courts below have found that the evidence of P.W.1 is sufficient to come to the conclusion that offence under Section 138 of Negotiable Instruments Act was made out. Both the courts below have considered the consequence of the endorsement in the returned cheque and came to the conclusion that such an endorsement is sufficient to attract Section 138 of the N.I.Act. The findings of the court below are based on appreciation of the evidence in the case and are findings of fact. It is not shown that the courts below have erred in any manner in reaching the above conclusions. The views taken by the courts below are possible on the basis of the evidence adduced in the case and interference under the revisional jurisdiction is very limited. This revision petition is without merits and it is liable to be dismissed. I do so. Faced with the above situation, learned counsel for the revision petitioner seeks some time to pay the fine amount to ward off default sentence. Considering the nature of the case, the petitioner is granted two months time from today to pay the fine amount, and in default of payment of which, the default sentence awarded shall take effect. Petition dismissed.