Criminal App. No. 405 of 1995

17th June, 1998

Petitioner Counsel: Mr. T.R. RAMACHANDRAN NAIR
Respondent Counsel: Mr. R. MURALEEDHARAN PILLAI

Cases Cited:
1993 (2) KLT 1027 : 1994 Cri. LJ 674 [Para 5]
1997 ALL MR (Cri) 1027 (S.C.)=JT 1996 (1) SC 643 : 1996 Cri. L.J. 1692 [Para 5]
1998(2) ALL MR 667 (S.C.)=1998(1) KLT 582 : 1998 Cri. L.J. 1397 (SC) [Para 5]

JUDGMENT

JUDGMENT :- This appeal is filed by one Francis Savio questioning the judgment of acquittal delivered by the Sessions Judge, Kottayam in Criminal Appeal No. 127 of 1991.

2. The present appellant as complainant filed a case under Section 138 of the Negotiable Instruments Act against the 2nd respondent as accused before the Judicial Magistrate of the First Class, Vaikom in S.T. No. 404 of 1990. The Magistrate on examining the evidence found the 2nd respondent/accused guilty under Section 138 of the Negotiable Instruments Act and thereby sentenced him to undergo rigorous imprisonment for six months.

3. The above judgment of the Magistrate was challenged in the appeal before the Sessions Judge, who allowed the appeal on the following grounds :

"(i) The ingredients of Section 138 of the Negotiable Instruments Act are not specifically averred in the complaint.

(ii) The return of the cheque by the bank on the head 'refer to drawer' does not mean that there is no sufficient fund in the account of the drawer, the 2nd respondent/accused and therefore, that does not attract the offence under Section 138 of the Negotiable Instruments Act."

4. Now let me consider for decision whether the two grounds taken by the Sessions Judge are sufficient to acquit the accused/2nd respondent. Firstly, in drafting a criminal complaint, there is no specific provision either in the Criminal Procedure Code, or in the rules framed thereunder as to how a criminal complaint has to be drafted. Secondly, what we should see in the criminal complaint is whether the entire substance of the complaint prima facie, makes out an offence said to have been committed, or whether there is a ground to presume on the entire reading of the substance of the complaint that the offence is likely to have been committed. For instance, in a criminal case, particularly, in hurt cases, the injured or any eye-witness immediately rushes to the police station and gives the statement in his own fashion in the local language and that must be reduced into writing by the officer incharge of the police station. In such circumstance, we cannot expect from the informant/complainant who hails from a village that his statement should contain the ingredients of the particular offence found in the Section of IPC. The complaint thus need not comply with the letter of law. On that background, now let me consider the complaint as well as the sworn statement of the complainant/appellant.

5. Paras 3, 4 and 5 of the complaint would signify that the cheque, Ext. P.1, drawn by the 2nd respondent/accused was returned dishonoured when presented in the bank. The sworn statement of the appellant also would go to show that when the cheque was presented in the bank, it was returned. The above contents in the complaint and the sworn statement of the complainant/appellant, in my view, do suffice to satisfy the requirements of Section 138 of the Negotiable Instruments Act. Therefore, the Sessions Judge is wrong in holding that the ingredients of the section are not found in the complaint or in the evidence of the appellant as PW1. No doubt, the Sessions Judge has placed reliance on the principle laid down by this Court in Muhammed Rasheed Vs. State of Kerala, 1993 (2) KLT 1027 = 1994 Cri. L.J. 674. In this case, a Bench of this Court has held that 'payment stopped' in the dishonour memo does not attract Section 138 of the Negotiable Instruments Act and therefore, the complaint is lacking of the ingredients of the penal Section 138 wherein the cheque has to be returned as 'unpaid' or the cheque had been returned due to insufficiency of funds in the account of the drawer. That view taken by this Court in the above citation can be rightly said to have been overruled by the Supreme Court in two subsequent decisions reported in Electronics Trade & Technology Development Corporation Ltd., Secunderabad Vs. Indian Technologists & Engineers (Electronics) P. Ltd. JT 1996 (1) SC 643 = 1996 Cri. L.J. 1692 = (1997 ALL MR (Cri) 1027), and Modi Cements Ltd. Vs. K.K. Nandi, 1998 (1) KLT 582 = 1998 Cri. L.J. 1397 (SC) = (1998(2) ALL MR 667). In both the decisions, the Supreme Court has ruled that 'payment stopped' would attract Section 138 of the Negotiable Instruments Act. To make it clear, the view of the Supreme Court would be that when there is an endorsement by the bank in the returned memo as 'payment stopped', that would mean that the cheque had been returned only on account of the insufficiency of funds in the account of the drawer. Therefore, in view of the propositions of law laid down by the Supreme Court, I have to dissent with the proposition laid down in Muhammed Rasheed Vs. State of Kerala, (supra). In the light of the above propositions of law laid down by the Supreme Court, when I examined the complaint as well as the sworn statement of the appellant as PW1, as I have concluded above, the findings of the Sessions Judge that the complaint does not attract Section 138 of the Negotiable Instruments Act is erroneous and that has to be rejected.

6. When Ext. P1 cheque was presented in the bank, it was returned with a memo, Ext. P2, on the head 'refer to the drawer'. Learned Sessions Judge has understood the above words in Ext. P2 that those words are not expressly attracting the ingredients of Section 138 of the Negotiable Instruments Act. A look at Ext. P2 would disclose that there is no specific head 'cheque returned unpaid' or 'the cheque is returned due to insufficiency of funds in the account of the creditor'. Therefore, when the bank returned it on the ground 'refer to drawer', that is an indication to conclude that there is no sufficient funds in the account of the drawer. In the instant case on hand, the evidence of PW2, the bank officer is crystal clear that when Ext. P1 cheque was presented for collection, there were no funds in the credit of the drawer, the 2nd respondent. PW2 would testify in this regard only on the basis of the account of the accused/2nd respondent. I do not find any justification to reject the oral testimony of PW2 who gave evidence on the basis of the documents kept in the bank.

7. No doubt, in the complaint, it has been referred to Ext. P1 cheque as a bearer cheque. The possessor or the bearer of a cheque can be rightly categorised as the holder of the cheque. In the instant case, it was the appellant who presented the cheque in the bank. Therefore, he is the holder of the cheque. No doubt, it has been wrongly stated in the complaint that he is the holder in due course, in one place. That will not affect the case of the complainant because it is not so simple one to understand at once the difference between the holder of the cheque and holder in due course as defined in Sections 8 and 9 of the Negotiable Instruments Act. Therefore, by the mere word found in the complaint, viz., holder in due course, will not render any advantage to the case of the accused/2nd respondent.

8. I also perused the judgments of both the Courts below as well as the evidence of the witnesses examined and on my perusal of the evidence, I do not find any reason to discard them. On the other hand, they are sufficient to sustain a conviction under Section 138 of the Negotiable Instruments Act. Hence the judgment of the Sessions Judge cannot be supported and it has to be set aside.

9. Accordingly, in the result, appeal is allowed by setting aside the judgment of acquittal delivered by the Sessions Judge in criminal Appeal No. 127 of 1991. In this context, learned Counsel for the appellant submitted that the accused/2nd respondent is a man of sufficient means and as per the instructions given to him by the appellant, no civil suit has been filed for the recovery of the amount and therefore, if the Court deems it just and proper, a reasonable fine can be imposed, a portion of which could be ordered as compensation to the appellant because the amount is due to the appellant from the 2nd respondent right from the date of the cheque, i.e., 31-3-1990 and the appellant has also been losing a substantial amount towards interest. I examined the above submission of the learned Counsel for the appellant and in my view, I feel a reasonable amount of fine can be imposed in this case, out of which a portion can be awarded as compensation to the appellant.

10. Therefore, the 2nd respondent/accused on having been found guilty under Section 138 of the Negotiable Instruments Act is sentenced to pay a fine of Rs. 20,000/- and in default of payment of the fine, he is sentenced to undergo rigorous imprisonment for one year. Out of this fine amount of Rs. 20,000/-, a sum of Rs. 15,000/- will be paid as compensation to the appellant as provided in Section 357 of the Code of Criminal Procedure.

11. The accused/2nd respondent is directed to pay the fine amount of Rs.20,000/- in the trial Court within one month from the date of receipt of a copy of this judgment.

Order accordingly.