Saturday, 29 October 2016

Whether single complaint for dishonour of multiple cheques is maintainable?

  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.




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