Further, the question as to whether a single
prosecution on the basis of several cheques issued is
maintainable, has been considered by this Court in
Mohammed v. State of Kerala (2004 KHC 1129). In that
case, single complaint was filed in respect of six separate
cheques issued. While considering the scope of the same, this
Court has held that if the offence was committed as part of the
same transaction, then section 220(1) of Code will apply and
single complaint on the basis of six cheques issued in respect
of the same transaction is maintainable. The same view has
been reiterated in the decision reported in K.G. Udayakumar
v. State of Kerala & Others (2005 KHC 2061). That was also
a case where single complaint was filed in respect of
dishonour of five cheques issued and this Court has held that
the complaint is maintainable. The same question was
considered by the Gujarat High Court as well in the decision
reported in S.J. Shah v. State of Gujarat (1997 KHC 568). In
that case also single complaint was filed in respect of four
cheques given for different amounts in respect of the same
transaction, in which larger amount was due and the cheques
were issued in discharge of that liability and the Gujarath High
Court has held that single complaint is maintainable and in
such cases section 219 will not operate as a limitation and it
will be covered by the provisions of section 220 of the Code.
So, in view of the dictum laid down in the above decisions, the
submission made by the counsel for the respondents that the
complaint is not maintainable as two cheques were issued for
different amount with different date has no force and the same
is liable to be rejected as in this case cheques were issued in
respect of a single transaction of Rs.1,28,000/- borrowed by the
accused from the complainant in discharge of which these two
cheques were issued. So the complaint is perfectly maintainable. IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.RAMAKRISHNAN
26TH DAY OF NOVEMBER 2015/
CRL.A.No. 673 of 2004 ( )
T.BHASKARAN,
Vs
M.P.MOHANDAS,
Citation:2016 ALLMR(CRI)JOURNAL 433 kerala
The complainant in C.C.No.296/2001 on the file of the
Judicial First Class Magistrate Court, Payyoli is the appellant
herein. The case was taken on file on the basis of a private
complaint filed by the complainant against the first respondent
alleging offence under section 138 of the Negotiable Instruments
Act (hereinafter referred to as 'the Act').
2. The case of the complainant in the complaint was that
the accused borrowed a sum of Rs.1,28,000/- and in discharge
of that liability, he had issued Exts.P1 and P2 cheques for
Rs.78,000/- dated 14.9.2001 and Rs.50,000/- dated 6.9.2001
drawn on State Bank of Travancore, Vadakara branch in favour
of the complainant, which when presented were dishonoured
for the reason 'account closed' vide Exts.P3 and P4 dishonour
memos. This was intimated to the complainant by his banker
vide Ext.P5 letter. The complainant issued Ext.P6 lawyer
notice vide Ext.P7 postal receipt and the same was received by
the accused evidenced by Ext.P8 postal acknowledgment. He
sent Ext.P9 reply notice denying the allegations and the liability.
So according to the complainant, since the accused had hot
paid the amount, he had committed the offence under section
138 of the Act. Hence the complaint.
3. When the accused appeared before the court below,
particulars of offence were read over and explained to him and
he pleaded not guilty. In order to prove the case of the
complainant, the complainant himself was examined as PW1
and Exts.P1 to P11 were marked on his side. After closure of
the complainant's evidence, the accused was questioned under
section 313 of the Code of Criminal Procedure (hereinafter
referred to as 'the Code') and he denied all the incriminating
circumstances brought against him in the complainant's
evidence. He had further stated that he had no transaction with
the complainant and he joined a chitty with one Desabhimani
Krishnan and two blank signed cheques were given as security,
which were misused and the complaint was filed through the
complainant. In order to prove the case of the accused, he
himself was examined as DW1 and two witnesses were examined
as Dws 2 and 3 on his side and Ext.D1 was marked on his side.
After considering the evidence on record, the court below found
that defence taken by the accused has not been established and
he had not rebutted the presumption but relying on the decision
reported in Joseph v. Philip Joseph (2000 (2) KLJ 679) held
that no offence under section 138 is attracted if the account
was closed and the cheque was dishonoured for the reason
otherwise mentioned in the section and acquitted the accused
on that ground under section 255(1) of the Code. Aggrieved by
the same, the above appeal was filed by the original
complainant with leave petition as Crl.L.P.No.591/2003 and
leave was granted and appeal was admitted to file.
4. During the pendency of the appeal, the original
appellant died and his legal representatives were impleaded as
additional appellants and permitted to prosecute the appeal as
per the order in Crl.M.A.No.6060/2015.
5. Heard Sri.S.K.Madhu, counsel representing senior
counsel Sri. Govindh K. Bharathan, appearing for the appellant
and Sri.Aneesh Gurudas, counsel representing
Sri.Kunhikrishnan, counsel appearing for the first respondent
and Sri. Jibu P. Thomas, Public Prosecutor appearing for the
second respondent.
6. Counsel for the appellant submitted that the dictum laid
down in the decision relied on by the court below was overruled
by this Court in the decision reported in Vathsan v. Japahari
(2003 (3) KLT 972) which was relied on by this Court in Salim
v. Thomas (2004 (1) KLT 816) as well. Further, the court
below also found that the case of the accused is not probable
and that is not sufficient to rebut the presumption under section
139 of the Act. So, according to the learned counsel, the court
below erred in acquitting the accused and ought to have
convicted the accused for the offence alleged.
7. On the other hand, counsel for the first respondent
submitted that the evidence adduced on the side of he accused
will go to show that there was no possibility of any transaction
between the complainant and the accused and the accused
issuing the cheque as claimed. Further, the court below had
not properly appreciated the evidence and the burden on the
accused is only less and not onerous as in the case of
complainant proving the case. He needs only to prove his case
by preponderance of probabilities. He had also argued that it
cannot be said that a complaint can be filed on the basis of
two cheques with different amounts in view of section 219 (2)
of the Code. The order of acquittal does not call for any
interference.
8. Heard Public Prosecutor also.
9. The case of the complainant in the complaint was that
the accused had borrowed a sum of Rs.1,28,000/- and in
discharge of that liability, he had issued Exts.P1 and P2
cheques for Rs.50,000/- and Rs.78,000/- respectively with
different dates. The case of the accused was one of total denial
and his case was that he had some chitty transaction conducted
by one Krishnan working in Desabhimani and two blank signed
cheques were given as security for those transactions and that
was misused and the present complaint was filed. Once accused
denied execution of the cheque, then burden is on the
complainant to prove the same. In order to prove the same,
complainant himself has gone to the witness box and deposed in
support of his case. He had denied the allegations mentioned in
the reply notice in the complaint and reiterated that the
cheques were issued for the amount due to him from the
accused. He had also stated that accused had brought the
cheques duly filled and signed the same in his presence. So
the complainant had proved his case. Further, he had also
stated that there was none present at the time when he paid
the amount and cheques were issued by the accused and in such
cases except the evidence of the complainant no other evidence
will be available to prove the transaction, execution and
issuance of the cheque by the accused. Once the complainant
had proved the transaction as well as issuance of the cheque,
then the burden is on the accused to rebut the presumption
under section 139 of the Act, which says that unless contrary is
proved, the court shall presume that the cheque was issued in
discharge of wholly or part of any debt or other liability. In
order to prove the case of the accused, the accused himself was
examined as DW1 and two witnesses were examined as Dws
2 and 3. All of them have admitted that there is no document
in their possession to prove that Krishnan was conducting the
chitty. Further, Dws 2 and 3 had stated that they do not know
as to whether the accused had got any transaction with the
complainant and he had issued any cheque to the complainant
for that liability. They did not state that Exts.P1 and P2 cheques
were the cheques given to the said Krishnan by the accused.
PW2 had stated that two cheques were given by the accused to
said Krishnan when Exts.P1 and P2 were shown to him, he had
stated that he had seen those cheques earlier. But, in the cross
examination, he had stated that he cannot state the details of
the cheques given to said Krishnan and he had also stated that
he cannot say as to whether the accused has got any
transaction with PW1 and he had issued any cheque to him.
When a specific question was put to him whether if it is stated
that Exts.P1 and P2 cheques were given to PW1 by the
accused, then he had stated that he cannot say anything about
that and these aspects were not further clarified in the
reexamination as well. Further, even according to him, he was
working as a salesman in the shop of the accused. DW3 is none
other than the brother of the accused. He had only stated that
his brother had joined in two chitties with Desabhimani
Krishnan during the year 1996 and at that time certain
cheques were given. But he cannot deny as to whether there
was any transaction between the accused and the
complainant and Exts.P1 and P2 cheques were given by the
accused to the complainant. DW1 had categorically stated
that he was not having any document to prove that he was a
subscriber to the chitty conducted by Desabhimani Krishnan. So
under the circumstances, the court below was perfectly justified
in coming to the conclusion that the evidence adduced from the
side of the accused is not sufficient to come to the conclusion
that the cheques were not given to the complainant and it was
given to one Krishnan, that was misused and the present
complaint was filed through him and rightly held that the
presumption under section 139 of the Act has not been rebutted
by the accused.
10. But the court below had relied on the decision reported
in Joseph's case (cited supra) and came to the conclusion that
since the account was closed, the offence under section 138
will not lie and on that basis acquitted the accused. But the
dictum laid down in that decision was overruled by the Division
Bench of this Court in Vathsan's case (cited supra) and it has
been held that even if a cheque is issued against an account
which has been closed prior to the drawl of the cheque, it comes
with the fold of section 138 of the Act. The same view has
been reiterated in the decision reported in Salims case (cited
supra). Further in the decision reported in Lakshmi Dyechem v,
State of Gujarath and others [2012 (4) KHC 826 (SC)], the
Hon'ble Supreme Court has held that even if the cheque was
returned for any of the reasons such as "account closed, payment
stopped, refer to drawer signature does not match," in each of
such case offence under section 138 of the Act will be attracted.
So the reasonings given by the court below for acquittal of the
accused relying on Joseph's case (cited supra), which has
been overrulled by this Court in the subsequent decision and
also in view of the decision of the Supreme Court mentioned
above is unsustainable in law and the same is liable to be set
aside. I do so.
11. The other contention raised by the counsel for the first
respondent is that the complaint will not lie on the basis of two
cheques with different amount as punishment will be different in
view of section 219(2) of the Code. Section 219 of the Code
reads as follows:
219. Three offences of same kind within year may be
charged together:-
(1) When a person is accused of more offences than
one of the same kind committed within the space of twelve
months from the first to the last of such offences, whether in
respect of the same person or not, he may be charged with,
and tried at one trial for, any number of them not
exceeding three.
(2). Offences are of the same kind when they are
punishable with the same amount of punishment under the
same section of the Indian Penal Code (45 of 1860) or of
any special or local law:
Provided that, for the purposes of this section, an
offence punishable under section 379 of the Indian Penal
Code (45 of 1860) shall be deemed to be an offene of the
same kind as an offence punishable under any section of the
said Code, or of any special or local law, shall be deemed to
be an offence of the same kind as an attempt to commit
such offence, when such an attempt is an offence".
12. As per section 219 of the Code, even if several
offence of similar nature has been committed, then it can be
clubbed together to the extent of three such cases if it is
committed within a period of twelve months. It is true that it is
mentioned in section 219 (2) that the punishment must be
same for both the offences. It may be mentioned here that two
cheques were given in respect of the same transaction for a
single amount of Rs.1,28,000/- which was borrowed by the
accused. Merely because two cheques were given for discharge
of a liability, it cannot be said that it was two offences of
different nature. What is the offence committed is offence
under section 138 of the Act and the punishment provided for
both the offences is the same though what is mentioned is that
court can impose double the cheque amount as fine. So it cannot
be said that different punishment is provided for the said offence
so as to take it away from the purview of section 219(2) of the
Code. It cannot be said to be a different offence as well as
both will fall under section 138 of the Act. So under the
circumstances, the submission made by the counsel for the
appellant that the complaint is not maintainable as punishment
is different also will not stand.
13. Further, the question as to whether a single
prosecution on the basis of several cheques issued is
maintainable, has been considered by this Court in
Mohammed v. State of Kerala (2004 KHC 1129). In that
case, single complaint was filed in respect of six separate
cheques issued. While considering the scope of the same, this
Court has held that if the offence was committed as part of the
same transaction, then section 220(1) of Code will apply and
single complaint on the basis of six cheques issued in respect
of the same transaction is maintainable. The same view has
been reiterated in the decision reported in K.G. Udayakumar
v. State of Kerala & Others (2005 KHC 2061). That was also
a case where single complaint was filed in respect of
dishonour of five cheques issued and this Court has held that
the complaint is maintainable. The same question was
considered by the Gujarat High Court as well in the decision
reported in S.J. Shah v. State of Gujarat (1997 KHC 568). In
that case also single complaint was filed in respect of four
cheques given for different amounts in respect of the same
transaction, in which larger amount was due and the cheques
were issued in discharge of that liability and the Gujarath High
Court has held that single complaint is maintainable and in
such cases section 219 will not operate as a limitation and it
will be covered by the provisions of section 220 of the Code.
So, in view of the dictum laid down in the above decisions, the
submission made by the counsel for the respondents that the
complaint is not maintainable as two cheques were issued for
different amount with different date has no force and the same
is liable to be rejected as in this case cheques were issued in
respect of a single transaction of Rs.1,28,000/- borrowed by the
accused from the complainant in discharge of which these two
cheques were issued. So the complaint is perfectly maintainable.
In view of the discussions made above, the order of acquittal
passed by the court below relying on the decision reported in
Joseph's case (cited supra) is unsustainable in law and the
same is liable to be set aside and the accused is liable to be
convicted for the offence under section 138 of the Act. So the
order of acquittal passed by the court below is set aside and the
accused is found guilty for the offence under section 138 of the
Act and convicted thereunder.
14. As regards the sentence is concerned, because
offence was committed prior to the amendment, in the decision
reported in Suganthi v. Jagadeeshan (2002 (1) KLT 58
(SC)], the Supreme Court has held that the court can impose
minimum substantive sentence and award cheque amount as
compensation though at that time the court has no power to
impose fine more than Rs.5,000/-. So considering these
circumstances, this Court feels that imposing substantive
sentence of imprisonment till the rising of court and also to pay
cheque amount of Rs.1,28,000/- as compensation, in default to
undergo simple imprisonment for three months under section
357 (3) of the Code will be sufficient and that will meet the
ends of justice. So the first respondent is sentenced to
undergo imprisonment till the rising of court and also to pay
Rs.1,28,000/- as compensation to the complainant, in default
to undergo simple imprisonment for three months under
section 357(3) of the Code .
In the result, the appellant succeeds and appeal is
allowed. The order of acquittal passed by the court below
against the first respondent is set aside and the first
respondent is found guilty for the offence under section 138
of the Act and he is convicted thereunder and sentenced to
undergo imprisonment till the rising of court and also to pay
the cheque amount of Rs.1,28,000/- as compensation to PW1,
in default to undergo simple imprisonment for three months
under section 357 (3) of the Code. Four months time is granted
to the appellant to pay the amount. The first respondent is
directed to pay the amount on or before 26.3.2016 and
surrender before the court below and serve the sentence as
directed. Till then, execution of the sentence is directed to be
kept in abeyance.
Office is directed to communicate a copy of this judgment
to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
Print Page
prosecution on the basis of several cheques issued is
maintainable, has been considered by this Court in
Mohammed v. State of Kerala (2004 KHC 1129). In that
case, single complaint was filed in respect of six separate
cheques issued. While considering the scope of the same, this
Court has held that if the offence was committed as part of the
same transaction, then section 220(1) of Code will apply and
single complaint on the basis of six cheques issued in respect
of the same transaction is maintainable. The same view has
been reiterated in the decision reported in K.G. Udayakumar
v. State of Kerala & Others (2005 KHC 2061). That was also
a case where single complaint was filed in respect of
dishonour of five cheques issued and this Court has held that
the complaint is maintainable. The same question was
considered by the Gujarat High Court as well in the decision
reported in S.J. Shah v. State of Gujarat (1997 KHC 568). In
that case also single complaint was filed in respect of four
cheques given for different amounts in respect of the same
transaction, in which larger amount was due and the cheques
were issued in discharge of that liability and the Gujarath High
Court has held that single complaint is maintainable and in
such cases section 219 will not operate as a limitation and it
will be covered by the provisions of section 220 of the Code.
So, in view of the dictum laid down in the above decisions, the
submission made by the counsel for the respondents that the
complaint is not maintainable as two cheques were issued for
different amount with different date has no force and the same
is liable to be rejected as in this case cheques were issued in
respect of a single transaction of Rs.1,28,000/- borrowed by the
accused from the complainant in discharge of which these two
cheques were issued. So the complaint is perfectly maintainable. IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.RAMAKRISHNAN
26TH DAY OF NOVEMBER 2015/
CRL.A.No. 673 of 2004 ( )
T.BHASKARAN,
Vs
M.P.MOHANDAS,
Citation:2016 ALLMR(CRI)JOURNAL 433 kerala
The complainant in C.C.No.296/2001 on the file of the
Judicial First Class Magistrate Court, Payyoli is the appellant
herein. The case was taken on file on the basis of a private
complaint filed by the complainant against the first respondent
alleging offence under section 138 of the Negotiable Instruments
Act (hereinafter referred to as 'the Act').
2. The case of the complainant in the complaint was that
the accused borrowed a sum of Rs.1,28,000/- and in discharge
of that liability, he had issued Exts.P1 and P2 cheques for
Rs.78,000/- dated 14.9.2001 and Rs.50,000/- dated 6.9.2001
drawn on State Bank of Travancore, Vadakara branch in favour
of the complainant, which when presented were dishonoured
for the reason 'account closed' vide Exts.P3 and P4 dishonour
memos. This was intimated to the complainant by his banker
vide Ext.P5 letter. The complainant issued Ext.P6 lawyer
notice vide Ext.P7 postal receipt and the same was received by
the accused evidenced by Ext.P8 postal acknowledgment. He
sent Ext.P9 reply notice denying the allegations and the liability.
So according to the complainant, since the accused had hot
paid the amount, he had committed the offence under section
138 of the Act. Hence the complaint.
3. When the accused appeared before the court below,
particulars of offence were read over and explained to him and
he pleaded not guilty. In order to prove the case of the
complainant, the complainant himself was examined as PW1
and Exts.P1 to P11 were marked on his side. After closure of
the complainant's evidence, the accused was questioned under
section 313 of the Code of Criminal Procedure (hereinafter
referred to as 'the Code') and he denied all the incriminating
circumstances brought against him in the complainant's
evidence. He had further stated that he had no transaction with
the complainant and he joined a chitty with one Desabhimani
Krishnan and two blank signed cheques were given as security,
which were misused and the complaint was filed through the
complainant. In order to prove the case of the accused, he
himself was examined as DW1 and two witnesses were examined
as Dws 2 and 3 on his side and Ext.D1 was marked on his side.
After considering the evidence on record, the court below found
that defence taken by the accused has not been established and
he had not rebutted the presumption but relying on the decision
reported in Joseph v. Philip Joseph (2000 (2) KLJ 679) held
that no offence under section 138 is attracted if the account
was closed and the cheque was dishonoured for the reason
otherwise mentioned in the section and acquitted the accused
on that ground under section 255(1) of the Code. Aggrieved by
the same, the above appeal was filed by the original
complainant with leave petition as Crl.L.P.No.591/2003 and
leave was granted and appeal was admitted to file.
4. During the pendency of the appeal, the original
appellant died and his legal representatives were impleaded as
additional appellants and permitted to prosecute the appeal as
per the order in Crl.M.A.No.6060/2015.
5. Heard Sri.S.K.Madhu, counsel representing senior
counsel Sri. Govindh K. Bharathan, appearing for the appellant
and Sri.Aneesh Gurudas, counsel representing
Sri.Kunhikrishnan, counsel appearing for the first respondent
and Sri. Jibu P. Thomas, Public Prosecutor appearing for the
second respondent.
6. Counsel for the appellant submitted that the dictum laid
down in the decision relied on by the court below was overruled
by this Court in the decision reported in Vathsan v. Japahari
(2003 (3) KLT 972) which was relied on by this Court in Salim
v. Thomas (2004 (1) KLT 816) as well. Further, the court
below also found that the case of the accused is not probable
and that is not sufficient to rebut the presumption under section
139 of the Act. So, according to the learned counsel, the court
below erred in acquitting the accused and ought to have
convicted the accused for the offence alleged.
7. On the other hand, counsel for the first respondent
submitted that the evidence adduced on the side of he accused
will go to show that there was no possibility of any transaction
between the complainant and the accused and the accused
issuing the cheque as claimed. Further, the court below had
not properly appreciated the evidence and the burden on the
accused is only less and not onerous as in the case of
complainant proving the case. He needs only to prove his case
by preponderance of probabilities. He had also argued that it
cannot be said that a complaint can be filed on the basis of
two cheques with different amounts in view of section 219 (2)
of the Code. The order of acquittal does not call for any
interference.
8. Heard Public Prosecutor also.
9. The case of the complainant in the complaint was that
the accused had borrowed a sum of Rs.1,28,000/- and in
discharge of that liability, he had issued Exts.P1 and P2
cheques for Rs.50,000/- and Rs.78,000/- respectively with
different dates. The case of the accused was one of total denial
and his case was that he had some chitty transaction conducted
by one Krishnan working in Desabhimani and two blank signed
cheques were given as security for those transactions and that
was misused and the present complaint was filed. Once accused
denied execution of the cheque, then burden is on the
complainant to prove the same. In order to prove the same,
complainant himself has gone to the witness box and deposed in
support of his case. He had denied the allegations mentioned in
the reply notice in the complaint and reiterated that the
cheques were issued for the amount due to him from the
accused. He had also stated that accused had brought the
cheques duly filled and signed the same in his presence. So
the complainant had proved his case. Further, he had also
stated that there was none present at the time when he paid
the amount and cheques were issued by the accused and in such
cases except the evidence of the complainant no other evidence
will be available to prove the transaction, execution and
issuance of the cheque by the accused. Once the complainant
had proved the transaction as well as issuance of the cheque,
then the burden is on the accused to rebut the presumption
under section 139 of the Act, which says that unless contrary is
proved, the court shall presume that the cheque was issued in
discharge of wholly or part of any debt or other liability. In
order to prove the case of the accused, the accused himself was
examined as DW1 and two witnesses were examined as Dws
2 and 3. All of them have admitted that there is no document
in their possession to prove that Krishnan was conducting the
chitty. Further, Dws 2 and 3 had stated that they do not know
as to whether the accused had got any transaction with the
complainant and he had issued any cheque to the complainant
for that liability. They did not state that Exts.P1 and P2 cheques
were the cheques given to the said Krishnan by the accused.
PW2 had stated that two cheques were given by the accused to
said Krishnan when Exts.P1 and P2 were shown to him, he had
stated that he had seen those cheques earlier. But, in the cross
examination, he had stated that he cannot state the details of
the cheques given to said Krishnan and he had also stated that
he cannot say as to whether the accused has got any
transaction with PW1 and he had issued any cheque to him.
When a specific question was put to him whether if it is stated
that Exts.P1 and P2 cheques were given to PW1 by the
accused, then he had stated that he cannot say anything about
that and these aspects were not further clarified in the
reexamination as well. Further, even according to him, he was
working as a salesman in the shop of the accused. DW3 is none
other than the brother of the accused. He had only stated that
his brother had joined in two chitties with Desabhimani
Krishnan during the year 1996 and at that time certain
cheques were given. But he cannot deny as to whether there
was any transaction between the accused and the
complainant and Exts.P1 and P2 cheques were given by the
accused to the complainant. DW1 had categorically stated
that he was not having any document to prove that he was a
subscriber to the chitty conducted by Desabhimani Krishnan. So
under the circumstances, the court below was perfectly justified
in coming to the conclusion that the evidence adduced from the
side of the accused is not sufficient to come to the conclusion
that the cheques were not given to the complainant and it was
given to one Krishnan, that was misused and the present
complaint was filed through him and rightly held that the
presumption under section 139 of the Act has not been rebutted
by the accused.
10. But the court below had relied on the decision reported
in Joseph's case (cited supra) and came to the conclusion that
since the account was closed, the offence under section 138
will not lie and on that basis acquitted the accused. But the
dictum laid down in that decision was overruled by the Division
Bench of this Court in Vathsan's case (cited supra) and it has
been held that even if a cheque is issued against an account
which has been closed prior to the drawl of the cheque, it comes
with the fold of section 138 of the Act. The same view has
been reiterated in the decision reported in Salims case (cited
supra). Further in the decision reported in Lakshmi Dyechem v,
State of Gujarath and others [2012 (4) KHC 826 (SC)], the
Hon'ble Supreme Court has held that even if the cheque was
returned for any of the reasons such as "account closed, payment
stopped, refer to drawer signature does not match," in each of
such case offence under section 138 of the Act will be attracted.
So the reasonings given by the court below for acquittal of the
accused relying on Joseph's case (cited supra), which has
been overrulled by this Court in the subsequent decision and
also in view of the decision of the Supreme Court mentioned
above is unsustainable in law and the same is liable to be set
aside. I do so.
11. The other contention raised by the counsel for the first
respondent is that the complaint will not lie on the basis of two
cheques with different amount as punishment will be different in
view of section 219(2) of the Code. Section 219 of the Code
reads as follows:
219. Three offences of same kind within year may be
charged together:-
(1) When a person is accused of more offences than
one of the same kind committed within the space of twelve
months from the first to the last of such offences, whether in
respect of the same person or not, he may be charged with,
and tried at one trial for, any number of them not
exceeding three.
(2). Offences are of the same kind when they are
punishable with the same amount of punishment under the
same section of the Indian Penal Code (45 of 1860) or of
any special or local law:
Provided that, for the purposes of this section, an
offence punishable under section 379 of the Indian Penal
Code (45 of 1860) shall be deemed to be an offene of the
same kind as an offence punishable under any section of the
said Code, or of any special or local law, shall be deemed to
be an offence of the same kind as an attempt to commit
such offence, when such an attempt is an offence".
12. As per section 219 of the Code, even if several
offence of similar nature has been committed, then it can be
clubbed together to the extent of three such cases if it is
committed within a period of twelve months. It is true that it is
mentioned in section 219 (2) that the punishment must be
same for both the offences. It may be mentioned here that two
cheques were given in respect of the same transaction for a
single amount of Rs.1,28,000/- which was borrowed by the
accused. Merely because two cheques were given for discharge
of a liability, it cannot be said that it was two offences of
different nature. What is the offence committed is offence
under section 138 of the Act and the punishment provided for
both the offences is the same though what is mentioned is that
court can impose double the cheque amount as fine. So it cannot
be said that different punishment is provided for the said offence
so as to take it away from the purview of section 219(2) of the
Code. It cannot be said to be a different offence as well as
both will fall under section 138 of the Act. So under the
circumstances, the submission made by the counsel for the
appellant that the complaint is not maintainable as punishment
is different also will not stand.
13. Further, the question as to whether a single
prosecution on the basis of several cheques issued is
maintainable, has been considered by this Court in
Mohammed v. State of Kerala (2004 KHC 1129). In that
case, single complaint was filed in respect of six separate
cheques issued. While considering the scope of the same, this
Court has held that if the offence was committed as part of the
same transaction, then section 220(1) of Code will apply and
single complaint on the basis of six cheques issued in respect
of the same transaction is maintainable. The same view has
been reiterated in the decision reported in K.G. Udayakumar
v. State of Kerala & Others (2005 KHC 2061). That was also
a case where single complaint was filed in respect of
dishonour of five cheques issued and this Court has held that
the complaint is maintainable. The same question was
considered by the Gujarat High Court as well in the decision
reported in S.J. Shah v. State of Gujarat (1997 KHC 568). In
that case also single complaint was filed in respect of four
cheques given for different amounts in respect of the same
transaction, in which larger amount was due and the cheques
were issued in discharge of that liability and the Gujarath High
Court has held that single complaint is maintainable and in
such cases section 219 will not operate as a limitation and it
will be covered by the provisions of section 220 of the Code.
So, in view of the dictum laid down in the above decisions, the
submission made by the counsel for the respondents that the
complaint is not maintainable as two cheques were issued for
different amount with different date has no force and the same
is liable to be rejected as in this case cheques were issued in
respect of a single transaction of Rs.1,28,000/- borrowed by the
accused from the complainant in discharge of which these two
cheques were issued. So the complaint is perfectly maintainable.
In view of the discussions made above, the order of acquittal
passed by the court below relying on the decision reported in
Joseph's case (cited supra) is unsustainable in law and the
same is liable to be set aside and the accused is liable to be
convicted for the offence under section 138 of the Act. So the
order of acquittal passed by the court below is set aside and the
accused is found guilty for the offence under section 138 of the
Act and convicted thereunder.
14. As regards the sentence is concerned, because
offence was committed prior to the amendment, in the decision
reported in Suganthi v. Jagadeeshan (2002 (1) KLT 58
(SC)], the Supreme Court has held that the court can impose
minimum substantive sentence and award cheque amount as
compensation though at that time the court has no power to
impose fine more than Rs.5,000/-. So considering these
circumstances, this Court feels that imposing substantive
sentence of imprisonment till the rising of court and also to pay
cheque amount of Rs.1,28,000/- as compensation, in default to
undergo simple imprisonment for three months under section
357 (3) of the Code will be sufficient and that will meet the
ends of justice. So the first respondent is sentenced to
undergo imprisonment till the rising of court and also to pay
Rs.1,28,000/- as compensation to the complainant, in default
to undergo simple imprisonment for three months under
section 357(3) of the Code .
In the result, the appellant succeeds and appeal is
allowed. The order of acquittal passed by the court below
against the first respondent is set aside and the first
respondent is found guilty for the offence under section 138
of the Act and he is convicted thereunder and sentenced to
undergo imprisonment till the rising of court and also to pay
the cheque amount of Rs.1,28,000/- as compensation to PW1,
in default to undergo simple imprisonment for three months
under section 357 (3) of the Code. Four months time is granted
to the appellant to pay the amount. The first respondent is
directed to pay the amount on or before 26.3.2016 and
surrender before the court below and serve the sentence as
directed. Till then, execution of the sentence is directed to be
kept in abeyance.
Office is directed to communicate a copy of this judgment
to the concerned court immediately.
Sd/-
K. RAMAKRISHNAN, JUDGE.
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