Mathai Kutty vs S. Vijayalekshmi And Ors

Appellant had initiated a complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). The

learned Magistrate after trial, found the accused not guilty and she was acquitted under Section 255(1) of the Cr.P.C. Assailing the said judgment, this

appeal is preferred. For easier reference, the parties are referred to as they were arrayed in the trial court.

The complainant alleged that the accused had borrowed a sum of Rs.1,00,000/- from him and issued a cheque dated 2.1.2005 bearing No.166276

drawn on the State Bank of Travancore, Main Branch, Kollam. It was alleged that the cheque was presented for encashment through the Kollam

District Co-operative Bank, Kannanalloor branch, but got dishonoured on 28.2.2005 with the endorsement 'Account Closed'. On receipt of

communication from the bank, an Advocate's notice dated 28.3.2005 was issued. In spite of receipt of the said notice, the accused did not pay the

amount due under the cheque and hence the complaint was instituted.

The complainant examined himself as PW1 and the bank manager as PW2 and marked Exts.P1 to P7. The accused did not adduce any evidence.

After analysing the evidence adduced, the trial court found that though the procedural requirements of filing the complaint under Section 138 of the

N.I.Act was complied with and the complaint was filed within the period of limitation stipulated, the defence version regarding the issuance of cheque

was found to be more probable and on that basis it was held that the complainant had failed to prove the commission of offence by the accused under

Section 138 of the N.I.Act. It was also held that since the account was closed in 1999 and while the cheque was issued in 2005 it could not be said

that the cheque was issued on an account maintained by the accused.

I have heard Adv.Sri.M.T.Suresh Kumar and Adv.Rafeez Nooh, learned counsel for the appellant and Smt.Maya M.N., learned Public Prosecutor

for the 2nd respondent.

Adv.Rafeez Nooh vehemently contended that the judgment of the learned Magistrate was erroneous since the court proceeded on an assumption

that once a cheque is issued after an account is closed, the same would not attract the offence under Section 138 of the N.I.Act. According to the

learned counsel, the said assumption was incorrect in view of the decision in Vathsan v. Japahari (2003 (3) KLT 972). Adv.M.T.Suresh Kumar

further argued that the trial court failed to appreciate the presumption available under Section 139 and 118 of the N.I.Act apart from the learned

Magistrate taking into reckoning irrelevant evidence.

I have considered the contentions raised and perused the evidence adduced.

It is true, as submitted by Adv.Rafeez Nooh, that even if a cheque is issued against an account, which was closed even prior to the drawal of the

cheque, the same shall still amount to an offence under Section 138 of the N.I.Act, as held by this Court in Vathsan v. Japahari (Supra), which is as

follows:

“5. ….................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 a 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.

So, we are of the view that situations where cheques have been issued against an account, which has been closed prior to the date of drawal of the

cheques, shall also come within the fold of S.138 of the Act to attract criminal liability.................â€​

Even though the issuance of the cheque on an account that was closed prior to the drawal of the cheque would amount to an offence under Section

138 of the N.I.Act, it is necessary to consider the evidence adduced in the case for the purpose of arriving at a conclusion as to whether the accused

is guilty of the offence alleged.

According to PW1, Ext.P1 cheque was written and issued by the complainant in front of him. The writings on the cheque, according to PW1, were

in the same ink and in the same handwriting. On a perusal of Ext.P1, what is discernible is just the contrary. The signature in Ext.P1 is written in black

ink while the details of the payee and the amounts are written in blue ink. On a comparison of the signature with the writing on the cheque, it is clear,

with the naked eye itself, that the handwritings are different. Since the case of the complainant was that the cheque was written by the accused in

front of him and was written with the same ink and the evidence adduced in the form of the original cheque shows the contrary, it cannot be said that

the case of the complainant stands proved.

While arriving at the aforesaid conclusion, this Court also bears in mind the defense evidence that a blank cheque was given as security as early as

in 1997 and that the complainant had misused the cheque by filling up false particulars. Closure of the account as early as in 1999 also stares at the

face of the complainant, even though, that by itself would not enable a finding of 'not guilty'. However, the cumulative effect of the oral evidence of

PW1 and what is discernible from Ext.P1, this Court is of the view that, the finding rendered by the trial court is not required to be interfered with.

The findings of the trial court that the evidence adduced clearly points that the defense version is more probable, is affirmed and the trial court had

rightly acquitted the accused.

With the above observations, this appeal is dismissed.