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2025 Supreme(Online)(Ker) 39557
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.KUNHIKRISHNAN, J
GEORGE AGED 59 YEARS MATHAI – Appellant
Versus
ANURAG K. HARIDAS – Respondent
CRL.REV.PET NO. 521 OF 2024| Crl.A NO.57 OF 2022| STC NO.224/2022
For the Appellants/Petitioners: Sri.Jaison Joseph, Sri.Jimmy Joseph, Smt.Veena Vallikanthan, Shri.Zacharia Saibu
For the Respondents: SR PP Sri Hrithwik C S
The complainant must prove insufficient funds for a cheque endorsed 'account blocked' to establish liability under Section 138 of the Negotiable Instruments Act.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Accused's conviction confirmed for issuing a cheque that was returned marked 'account blocked' - Complainant failed to provide evidence that there were insufficient funds at the time of deposit. Court allows revision and remands the case for further evidence to determine liability. (Paras 6, 7, 8, 10)
(B) Burden of Proof - It is necessary for the complainant to establish evidence of insufficient funds when presenting a cheque that is dishonoured; mere dishonour is insufficient for conviction unless proven. (Para 7)
Facts of the case:
The complainant accused the appellants of failing to pay for ginger supplied, resulting in the issuing of a cheque that was subsequently dishonoured, leading to criminal charges.
Findings of Court:
The trial and appellate courts failed to consider the need for further evidence regarding account status, thus leading to a remand for the trial court to provide further opportunities to both parties.
Issues: Whether the complainant provided sufficient evidence to prove a lack of funds in the accused's account at the time of cheque presentation.
Ratio Decidendi: The absence of evidence from the complainant regarding the status and credit of the accused's bank account leads to a determination that the conviction was premature; additional evidence must be presented.
Result: Revision petition allowed and case remanded for further proceedings.
| Table of Content |
|---|
| 1. prosecution details regarding the cheque issue and initial findings. (Para 2 , 3) |
| 2. need for further evidence regarding cheque dishonour due to account status. (Para 6 , 7) |
| 3. court remands for more evidence due to insufficient original findings. (Para 8) |
ORDER
Revision petitioners are the accused in S.T.C. No.224/2022 on the file of the Judicial First Class Magistrate Court-II, Sulthan Bathery. It is a prosecution initiated against the petitioners alleging offence punishable under Section 138 of the Negotiable Instruments Act , 1881 (for short 'NI Act'). The 1st respondent is the complainant. Herein after the revision petitioners and the 1st respondent are mentioned as accused and complainant respectively.
2. The complainant’s case in brief is as follows:
The complainant and 1st accused are known to each other.
The 1st accused is conducting a shop named P.M.G Traders. Accused received ginger from the complainant worth Rs.2,08,000/- on 19.03.2017. Out of the said sale consideration, an amount of Rs.58,000/- had been received by the complainant on 19.03.2017 itself and the 1st accused made a belief that the balance amount of sale consideration to be paid within two months. But the said amount has not been paid by the accused and he extended the payment by raising lame excuses. On 25.08.2017 the accused executed and issued a cheque baring No. 000006 drawn to H.D.F.C Bank, Pulpally Branch for an amount of Rs.1,50,000/- to the complainant towards the discharge of the said liability. When the complainant had presented said cheque for collection to South Indian Bank, Pulpally branch, the same was returned on 09.11.2017 for the reason 'Account Blocked'. Thereafter, on 08.12.2017, the complainant caused to send a lawyer notice through his lawyer to the accused informing the matter of dishonour of the cheque and demanding the payment of amount covered by the cheque. Even after the receipt of notice, accused neither replied nor repay the amount. Thus, the accused have committed offence punishable under section 138 of the NI Act.
3. To substantiate the case, the complainant himself was examined as PW1 and Exts.P1 to P6 were marked. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 138 of the NI Act and the 1st accused was sentenced to undergo simple imprisonment for three months and both accused were directed to pay a fine of Rs.2,17,000/- (Two Lakh Seventeen Thousand Only). In default of payment of fine, the 1st accused was directed to undergo simple imprisonment for three months.
4. Aggrieved by the conviction and sentence, the accused filed an appeal before the Sessions Court. The Sessions Judge, after going through the evidence and documents, confirmed the conviction and sentence imposed on the accused. Aggrieved by the same, this revision is filed.
5. Heard the learned counsel appearing for the revision petitioners.
6. The short point raised by the counsel for the petitioners is that the cheque is dishonored for the reason that ‘account blocked’. The counsel submitted that the trial court and the appellate court proceeded on the basis that it is ‘account closed’ and convicted the accused. The counsel submitted that if the account is blocked, the complainant has to adduce further evidence to show that there was insufficient fund in the account of the accused. The counsel relied on the judgment of the Calcutta High Court inDisplay Service Prop. Co-op. Pvt. Ltd and Others v. State of West Bengal [2014 KHC 2419] .
7. This Court considered the contentions of the petitioners. Admittedly the cheque is dishonored with an endorsement “account blocked”. Except the evidence of the complainant, there is no other evidence adduced by the complainant to show that there was insufficient fund in the account of the accused to honour the cheque. The Calcutta High Court in Display Service Prop. Co-op. Pvt. Ltd’s case (supra) observed like this:
