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Cites 5 docs
Section 138 in The Negotiable Instruments Act, 1881
Joseph vs Joseph And Ors. on 12 November, 1981
The Code Of Criminal Procedure, 1973
Goaplast Pvt. Ltd vs Shri Chico Ursula D'Souza & Anr on 7 March, 2003
The Negotiable Instruments Act, 1881

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Kerala High Court
N.A. Issac, Room No.8 vs Jeemon.P.Abraham, M.I.P. ... on 11 February, 2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 317 of 2002(B)

1. N.A. ISSAC, ROOM NO.8,

... Petitioner

Vs

1. JEEMON.P.ABRAHAM, M.I.P. ELECTRICALS, ... Respondent

2. STATE OF KERALA, REPRESENTED

For Petitioner :SRI.BIJU ABRAHAM

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.K.MOHANAN

Dated :11/02/2009

O R D E R

V.K.MOHANAN, J.

---------------------------------------------- CRL.A. No.317 of 2002

---------------------------------------------- Dated, 11th February, 2009.

JUDGMENT

This is an appeal at the instance of the complainant, in a private prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, as the trial court acquitted the accused under section 255(1) Cr.P.C.

2. The case of the appellant/complainant is that the accused borrowed a sum of Rs.1,00,000/- from the complainant on 2.1.98. Thereafter the accused issued a cheque for Rs.1,05,000/- on 9.4.98 drawn on the Dhanalakshmi Bank Ltd., hospital road, Ernakulam, towards the discharge of the said liability. When the complainant presented the cheque for encashment, the same was dishonoured by the bank and returned the cheque with an endorsement "account closed". Thereupon, after complying the statutory formalities, the complainant approached the court below by preferring the complaint to prosecute the accused for the offence punishable section 138 of the N.I.Act. On appearance of the accused, particulars of the allegations read over and explained to the accused to which he Crl.A.317/02

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pleaded not guilty which resulted in the further trial during which the complainant himself was examined as PW1 and marked Exts.P1 to P5 as documentary evidence. Though no document was produced from the side of the defence, the accused himself mounted to the box and examined as DW1. The defence adopted a plea of total denial. On the basis of the rival pleadings and the materials on record, the trial court considered two points for its determination and finally found that the cheque in question was issued on 9.4.98 but the account was closed much before, i.e. on 22.4.97 and therefore no offence under section 138 of the N.I.Act is sustainable. In order to come into such finding, the trial court heavily relied upon the decision of this court reported in Joseph v. Philip Joseph (2000(2) KLJ 679). Thus the trial court acquitted the accused under section 255(1) Cr.P.C.

3. Challenging the above finding and order of acquittal, the complainant preferred this appeal. By order dated 16.12.2002, this court had dismissed the appeal confirming the order of acquittal passed by the trial court. Challenging the above judgment of this court, the appellant/complainant preferred Crl.A.317/02

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Crl.A.No.877/2004 before the Hon'ble Supreme court. By judgment dated 13.8.2004, the Apex court, following the decisions of the Apex Court reported in Goaplast Private Ltd. v. Chico Ursula D'Souza (2003(3) SCC 232), has set aside the judgment of this Court and remitted back the appeal for fresh consideration of this Court on merits and in accordance with law. Their Lordships, while disposing of the above appeal, expressed no opinion regarding the merits of the case. It is observed that all the pleas would be open to be urged before this court.

4. Thus the above appeal again comes up for consideration of this court. Both the counsels appearing for the respective parties are of the same voice in submitting to the effect that at the time of disposal of the case by the trial court, the trial court has not gone into the merits of the case and the case was disposed of mainly on the basis of the main question as to whether the offence would lie or not, if the cheque in question pertained to an account already closed.

5. According to the complainant, the offence was committed on 9.4.98 and the complaint was filed on 2.6.98. At the time of Crl.A.317/02

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disposing the case by the trial court, the trial court considered the decision reported in Joseph v. Philip Joseph 2000(2) KLJ 679) which was the authority on the question at that time. Now the law on that point is settled by the decision of the Apex Court reported in Goaplast v. Chico Ursula D'Souza (2003(3) SCC 332) and also in the order of the Apex Court in the present case. Therefore, According to me, it is only just and proper to give an opportunity to both the parties to adduce fresh evidence, if so advised, and direct the trial court to take fresh decision, on merit after giving them an opportunity and on appreciation of the evidence, especially, in the light of the order of the Hon'ble Supreme Court. In the result, this appeal is disposed of remitting back the matter to the trial court for its fresh decision. In order to enable the trial court to take fresh decision upon consideration of the entire allegations and materials and evidence on record, after giving opportunity to both the parties to adduce evidence, and untrammelled by any of the observations of this court. The judgment of the trial court dated 8.2.2002 in C.C.No.848/1998 is set aside. Thus the parties are directed to appear before the trial Crl.A.317/02

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court on 11.3.2009 on which date the court is directed to take the complaint on file and to proceed with the same and dispose of it on merits. As the matter is pertained to the year 1998, the trial court is directed to expedite the trial and to dispose of the matter within six months from the date of receipt of the record and the judgment from this Court. Registry is directed to sent back the records forthwith.

The appeal is disposed of accordingly.

V.K.MOHANAN, JUDGE

kvm/-

Crl.A.317/02

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V.K.MOHANAN, J.

CRL.A. No.317 OF 2000

Judgment

Dated: 11.2.2009