Criminal Appeal No. 1872 of 2003 · Kerala High Court · 2007

K.THANKAPPAN, J.----------------------------------------------CRL. APPEAL NO. 1872 OF 2003----------------------------------------------Dated this the 3rd day of January, 2007JUDGMENTThe appellant is the complainant in C.C. No.621 of 2000 on the fileof the Judicial First Class Magistrate's Court I, Aluva. The aboveCalendar Case was on the basis of the complaint filed by the appellantalleging that the first respondent herein committed offences punishableunder Section 138 of the Negotiable Instruments Act, 1881(hereinafterreferred to as “the Act”) and Section 420 I.P.C.2. The case of the appellant was that the first respondent borrowedfrom him an amount of Rs.1,75,000/- and issued Ext.P1 cheque bearingNo.560138 dated 10.2.2000 drawn on the State Bank of India, ErnakulamBroadway Branch towards discharge of the said liability which whenpresented to the bank for encashment was dishonoured with theendorsement “ account closed”. On receipt of intimation from the bank,the appellant caused a lawyer's notice to the first respondent demandingthe amount covered by the cheque. Since the first respondent did not paythe amount inspite of the notice, the appellant filed the complaint stating CRL.APPEAL NO.1872/20032that “ the accused has given the cheque without sufficient funds in hisbank account to honour the cheque. Not only that he issued thecheque to a closed account. The issuance of a cheque to a closedaccount was only to cheat the complainant. Thus the accused hascommitted the offence punishable under section 138 of NegotiableInstruments Act, 1881 as amended by Act 66 of 1988 and undersection 420 of Indian Penal Code.”3. The trial court took cognizance of the complaint and issuedsummons to the first respondent and trial started on appearance of the firstrespondent. During the pendency of the trial, the complainant filed apetition to drop the complaint under Section 138 of the Act and to confineonly to Section 420 I.P.C. That petition was allowed and the court belowproceeded against the first respondent for the offence punishable underSection 420 I.P.C. Subsequently, the appellant - complainant filed anotherapplication to alter the penal section and to prosecute the first respondentunder Section 138 of the Act. The said application was dismissed by thecourt below on the ground that further alteration would amount to reviewof the earlier order which is not permissible under law. Thus the courtbelow proceeded against the first respondent for the offence punishableunder Section 420 I.P.C. To prove the case against the first respondent, CRL.APPEAL NO.1872/20033the appellant - complainant was examined as PW.1 and Exts.P1 to P7 wereproduced. The trial court found that the evidence adduced by the appellantwas not sufficient to prove the case against the first respondent underSection 420 I.P.C. Hence, by judgment dated 30.7.2003, the trial courtacquitted the first respondent. The above judgment is under challenge inthis appeal.4. The main grounds urged by the learned counsel appearing for theappellant are (i) the trial court went wrong in not proceeding against thefirst respondent under Section 138 of the Act as per the principles laiddown by this Court in the decisions reported in Vathsan v. Japahari,2003(3) K.L.T. 972 and Salim v. Thomas, 2004(1) K.L.T. 816 and (ii)the trial court went wrong in acquitting the first respondent as the evidenceadduced by the appellant was sufficient to hold that the first respondentcommitted offence punishable under Section 420 I.P.C. This Court alsoheard the learned counsel appearing for the first respondent.5. The allegation in the complaint filed by the appellant was thatthe first respondent committed offences punishable under Section 138 ofthe Act and Section 420 I.P.C. However, the appellant had filed a petitionto proceed against the first respondent only under Section 420 I.P.C. CRL.APPEAL NO.1872/20034Hence, the court below proceeded against the first respondent for theoffence under Section 420 I.P.C. It has also come out in evidence that theappellant filed another application subsequently to alter the penal sectionand to proceed under Section 138 of the Act. That application wasdismissed by the court below. Dismissal of the above application is still inforce unchallenged by the appellant. Even though as per the principleslaid down in the judgments referred to above, dishonour of a cheque dueto closure of account will amount to an offence under Section 138 of theAct, the appellant had given up such a case. In the above circumstances,this Court is of the view that only on the basis of the principles laid downin the above decisions, the court below cannot be found fault with for notproceeding under Section 138 of the Act. The first contention of thelearned counsel for the appellant is, therefore, not tenable. 6. With regard to the second contention, the trial court consideredthe evidence adduced by the appellant and found that the appellant failedto prove the case against the first respondent under Section 420 I.P.C. Ifthe evidence adduced by the complainant does not disclose an offenceunder Section 420 I.P.C., then the accused should be acquitted due to lackof evidence. Even before this Court, learned counsel appearing for theappellant only submits that issuance of a cheque on closure of account CRL.APPEAL NO.1872/20035amounts to an offence under Section 420 I.P.C., but no evidence isadduced to show that at the time of issuance of Ext.P1 cheque, the firstrespondent had any intention to cheat the appellant. That apart, learnedcounsel appearing for the first respondent submits that the reply given bythe first respondent to the notice issued to him would show that no amountwas borrowed by the first respondent at the time of issuance of the chequein question. On an overall appreciation of the entire evidence, this Court isof the view that the judgment under challenge does not require anyinterference. The Crl. Appeal fails and it is accordingly dismissed. (K.THANKAPPAN, JUDGE) sp/ CRL.APPEAL NO.1872/20036