The main legal point established is that the issuance of a cheque in discharge of a legally enforceable debt, even after the closure of the account, falls under the purview of Section 138 of the Negotiable Instruments Act.

JUDGMENT :

1. Order of acquittal of accused dated 05.06.2007 on the file of Chief Judicial Magistrate, Kasaragod, in a prosecution instituted under Section 138 of the Negotiable Instruments Act, 1881(for short 'the N.I. Act'), is challenged by the complainant in C.C. No.613/2006.

2. The prosecution case is that accused borrowed an amount of Rs.1,90,000/- on 26.01.2006 from complainant at his house in Mangalapuram and issued to the complainant Ext.P1 cheque post dated to 27.04.2006 drawn on Canara Bank, Urva Market, Mangalore Branch. The cheque on presentment was dishonoured on the ground that account owned by the accused was closed. Later, a demand notice calling upon the accused to discharge the debt was sent which he accepted. No reply was sent and therefore, after waiting for the prescribed period of time fixed by the statute, complaint under Section 138 of the N.I. Act was filed.

3. The accused after having appeared before the court below pleaded not guilty and contested the case. On the side of the appellant, he got examined as PW1 and Exts.P1 to P6 were marked. After prosecution evidence was over, the accused was examined and in his statement given under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.'), he pleaded that Ext. P1 was issued as a blank cheque. He disputed the alleged transaction dated 26.1.2006 with the complainant. According to him, he had closed the account as early on 27.12.1995 and Ext. P1 cheque had been issued about 15 years back when he had some business transaction with the complainant. The gist of his contention is that blank cheque given to the appellant was filled up and misused and therefore, it is not enforceable under law at all. On the side of the accused, the Manager of the drawee bank was summoned and examined as DW1 and he produced Ext.D1 letter proving the date of closure of account.

4. The court below having heard both sides, took the view that complainant failed to prove the transaction and therefore, Ext.P1 cheque cannot be taken to have been issued in discharge of a legally enforceable debt, It also held that there are circumstances in the case to suggest that Ext. P1 was issued as a blank cheque. On these two grounds, accused was found to be not guilty of offence punishable under Section 138 of the N.I. Act and the impugned order of acquittal was passed.

5. I heard the learned counsel for the appellant/complainant as well as the learned counsel for the first respondent/accused.

6. It was contended on behalf of the appellant that the court below failed to take notice of the material evidence given by PW1/appellant in respect of date of issue of cheque as well as passing of consideration, It was argued that had the entire evidence and circumstances been meticulously scrutinised, it would certainly have been found that Ext. P1 cheque was been issued in discharge of legally enforceable debt. On the other hand, the learned counsel for the accused submitted that the trial court lacked territorial jurisdiction inasmuch as the alleged execution of cheque was in Mangalore, a place falling within the territorial limits of courts in the State of Karnataka. It was also argued that inasmuch as the account of the accused is shown to have been closed as early as in 1995, there is least probability for the accused to have issued the cheque or entered into any transaction on 26.01.2006 as alleged.

7. The question for consideration is, whether Ext.P1 cheque was issued in discharge of legally enforceable debt alleged to have been incurred by the accused. The signature in Ext.P1 cheque is not disputed by the accused at all. This is clear not only from the cross-examination of PW1; but also from the separate statement submitted by him along with answers given under Section 313 of the Cr.P.C. It is seen from Ext. P1 that the ink used for signing the cheque as well as drawing other writings are different. Even PW1 admitted this, but he sought to explain the difference in ink by saying