Kerala High Court: R. Narayana Pisharadi, J. rejected this petition in which the petitioner prayed to file an appeal against the judgment passed by the trial court, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
This petition was filed by the petitioner to seek relief against the order of the trial court where the trial court acquitted the accused under Section 255(1) of the Code of Criminal Procedure, 1973. Section 255(1) of CrPC states that if the Magistrate, after recording the evidence, finds that the accused is not guilty, he shall record an order of acquittal.
This petition was filed by the complainant in the trial court by the case S.T. No. 114 of 2017 on the file of the Court of the Chief Judicial Magistrate, Thodupuzha. The case was filed under the offence punishable under Section 138 of the NI Act. It consists of dishonour of cheque for insufficiency, etc., of funds in the account, punishable with imprisonment for a term which may extend to 2 years or with fine which may extend to twice the amount of the cheque.
During the trial, the prosecution as well as the accused, both were examined and documents were also marked, complying with the needs of Section 255 CrPC.
The facts of the present petition is that the petitioner wants to file an appeal because the trial court acquitted the accused under Section 255(1) CrPC on the ground that the cheque drawn by him was not on an account maintained by the accused himself, in the bank. Rather it was drawn on an account maintained by one Kavitha Chandrasekharan. The Manager of the Bank of the said account gave evidence that the said account did belonged to Kavitha Chandrasekharan. The counsel for the petitioner contended that the trial court should have charged the accused for an offence punishable under Section 420 of the Penal Code.
It was upheld in a Supreme Court judgment, Jugesh Sehgal v. Shamsher Singh, (2009) 14 SCC 683, that one of the basic ingredients of offence punishable under Section 138 of the Act is that the cheque shall be drawn on an account maintained in the bank in the name of the drawer himself. Hence, the Court here upheld the decision of the trial court.
After noting the contentions of the counsel for the petitioner, Latheesh Sebastian, and the counsel for the respondent, C.N. Prabhakaran, Senior Public Prosecutor, High Court held that the decision given by the Chief Judicial Magistrate was correct as the case did not satisfy all the ingredients that are needed to punish someone under Section 138 of the NI Act. Secondly, this Court also said that it was not necessary for the trial court to convert this case into a warrant case and start a de novo trial. Hence, the prayer for granting leave to file an appeal was rejected and the petition was dismissed. [Areeplavan Finance v. Chandrasekharan, 2019 SCC OnLine Ker 5330, decided on 11-12-2019]
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