Judgment:
ORDER
S.S. Satheesachandran, J.
1. Challenge in the revision to against the concurrent verdict of guilt rendered against the petitioner/accused for the offence under Section 417 of the I.P.C. He was prosecuted on a complaint filed by the first respondent (hereinafter referred to as the complainant'). The accused had pleaded not guilty to the offence. Negativing his plea of not guilty, after trial, the learned Magistrate found him guilty of the offence under Section 417 I.P.C., and convicting him thereunder he was sentenced to undergo simple imprisonment for six months. In appeal preferred by the accused, the teamed Additional Sessions Judge confirmed the conviction and upheld the sentence without any modification. Against the concurrent finding of guilt and conviction and sentence imposed, the accused has preferred this revision impeaching its legality, propriety and correctness.
2. Short facts involved in the revision can be summed up thus: The case of the complainant is that towards discharge of a loan availed, the accused Issued Ext.PI cheque for a sum of Rs. 60,000/- promising Its encashment on presentation in due course. The cheque presented was, however, dishonoured with endorsement 'account closed'. Alter issuing a statutory notice intimating dishonour and demanding the sum covered by the instrument which was responded to with a reply denying the liability, the complainant launched prosecution against the accused filing a complaint imputing the offences punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act') and 420 of the I.P.C.
3. The learned Magistrate, after an enquiry under Section 200 of the Cr.P.C., took cognizance of the offence under Section 138 of the N.I. Act and ordered summons, to the accused Accused, on appearance, pleaded not guilty. On behalf of the complainant including himself two witnesses were examined as P. Ws.1 and 2, and Exts.P1 to P7 were exhibited. The accused questioned under Section 313 Cr.P.C. denying the prosecution evidence reiterated his plea of innocence. He had no defence evidence. The case was adjourned for arguments. The learned Magistrate, thereafter, altered the charge to Section 417 I.P.C. which was readover and explained to the accused, to which also he pleaded not guilty. Other than recalling of P.W.1, the complainant, and his further examination, no further evidence was adduced. Accused was again questioned under Section 313 Cr.P.C. He maintained his innocence and adduced no defence evidence. Learned Magistrate, after examining the materials and hearing the counsel on both sides, found the accused guilty of the offence under Section 417 I.P.C. and he was thereupon convicted and sentenced as indicated, which was confirmed in appeal without modification by the learned Additional Sessions Judge.
4. I heard the learned Counsel for the accused and also the complainant. The allegations set out in the complaint and the materials tendered in the case do not constitute an offence under Section 417 of the I.P.C. and as such the conviction founded and sentence imposed against the accused are unsustainable under law and facts, is the submission of the learned Counsel for the accused. A dishonour of cheque by itself cannot attract a charge under Section 420 I.P.C. nor even under Section 417 I.P.C. in the absence of material to show that a false representation was made and the complainant was persuaded to do or omit to do something on the basis of such false representation, according to the learned Counsel for the accused. There is total paucity of evidence in the case as to any false representation made by the accused and, further, Issue of Ext.PI cheque was alleged as in discharge of a loan availed much earlier and so much so, no offence under Section 417 I.P.C. was attracted to the case and, thus, the conviction for that offence against him cannot be sustained is the submission of the counsel. The learned Counsel relied on H.S. Muraleedharan v. P.S. Vijayakumar ILR 2006 Ker 636 to contend that In order to constitute an offence under Section 420 I.P.C. there must be some inducement by the accused to the complainant at the initial stage.
5. The learned Counsel for the accused was called upon to enlighten this Court whether in the given facts of the case, even if conviction is found not sustainable under Section 417 I.P.C, if the materials produced establish an offence under Section 138 of the N.I. Act why the conviction and sentence against the accused should not be modified for such offence in exercise of the revisional jurisdiction vested with this Court to correct the infirmity, if it is so found, in the impugned judgments passed by the two inferior courts. The learned Counsel for the accused relying on Sohan Lal v. State off Rajasthan : AIR 1990 SC 2158 and Edward v. Victor Immanuel 2002 (1) Kar LJ 101 rendered with respect to ambit and scope of Section 216 of the Cr.P.C. contended that this Court in exercise of the revisional jurisdiction cannot alter the charge and convict the accused for a different offence and sentence hint thereunder. Learned Counsel or the accused vehemently urged that once the conviction of the accused founded on Section 417 I.P.C. is found unsustainable, he is entitled to an order of acquittal and he cannot be convicted for a different offence. It was also contended by the learned Counsel placing reliance on Nagaraja Upadhya v. M. Sanjeevan 2008 (1) KLD 543 (kar.) that no offence under Section 138 would lie on dishonour of a cheque returned unpaid with endorsement 'account closed'. Even if the materials produced in the case disclose commission of an offence under Section 138 of the N.I. Act by the accused in view of his conviction and sentence under Section 417 IPC concurrently by the two inferior courts which cannot be sustained under law this Court cannot in exercise of revisional jurisdiction modify/alter the conviction to Section 138 of the N.I. Act and convict him thereunder, according to the learned Counsel for the accused. Reliance is placed on Bhaskaran Nair v. Abdul Kareem 2006(4) KLT 48 and Salafan v. Krishnankutty 2007 (1) KLT 6 (Case No. 9) by the learned Counsel to contend in exercise of revisional jurisdiction such alteration or modification of the conviction for a different offence is not permissible. According to the learned Counsel, as the two inferior courts have not convicted him under Section 138 of the N.I. Act, it has the effect of an acquittal and it cannot be reversed, and so much there cannot be any conviction for such offence by the revisional court Reliance is placed on State of Andhra Pradesh v. Thadi Narayana : AIR 1962 SC 240 to contend that where several offences are charged against an accused person and he Is acquitted of some offences and convicted of others in further proceedings against the conviction, the court cannot order his retrial for the offences in respect of which he was acquitted earlier.
6. Before examining the merit of the submissions made by the learned Counsel for the accused that no alteration of the offence and conviction thereunder is permissible, It is appropriate to refer to a few aspects involved in the case. The accused prosecuted solely for the offence under Section 138 of the N.I. Act on a complaint imputing such offence, from the complainant, was given sufficient opportunity to meet the accusation made, After the entire prosecution evidence was over and also questioning of the accused under Section 313 Cr.P.C, with the accused further stating he has no defence evidence, the case was adjourned for arguments. The order sheet of the case would show that the counsel for the accused reported that there was no defence evidence on 31.12.1998. After eleven adjournments for arguments, on 20.5.1999, the learned Magistrate passed an order, after perusing the records, that the charge has to be altered to Section 417 I.P.C. Accordingly, the charge against the accused was altered on 20.5.1999, which was readover and explained to him to which he pleaded not guilty. The complainant examined as P.W.1 was then recalled and further examined. The accused was again questioned under Section 313 of the Cr.P.C. He reiterated his innocence and submitted that he has no defence evidence. The learned Magistrate, thereafter, heating the counsel on both sides, arriving at the conclusion that he was guilty of the offence under Section 417 I.P.C. convicted him of that offence and imposed the sentence as indicated earlier.
7. The learned Magistrate had formed a condition on the materials tendered that as the account was dosed before the cheque was handed over to the accused, and presented for encashment later with the result of its dishonour for the reason of the account dosed, offence under Section 138 of the N.I. Act would not lie, but, only the offence under Section 417 of the I.P.C. Inevitably the view so formed by the learned Magistrate led to alteration of the charge and proceeding against the accused under Section 417 of the I.P.C. leading to his conviction and sentence thereunder. Learned Counsel for the accused is justified and fully correct in contending that the allegations made out in the complaint and as wed as the material produced do not constitute an offence under Section 417 I.P.C and his conviction and sentence thereunder by the learned Magistrate which was confirmed by the Additional Sessions Judge in appeal cannot be legally sustained. The larger question, however, remains whether the accused proceeded under Section 138 of the N.I. Act on a complaint filed by the first respondent for such offence can get himself absolved of such offence if the materials tendered in the case have established his guilt for such offence for the sole reason the trial court had proceeded against him after recording of the entire evidence in the case for a different offence and convicted and sentenced him for that offence and it was so confirmed by the appellate court In examining that question, first of all, it has to be noted that the learned Magistrate was not at all justified in altering the charge from Section 138 of the N.I. Act to Section 417 of the I.P.C. after the entire evidence was recorded and questioning of the accused under Section 313 Cr.P.C, with the accused further submitting that he has no further evidence, for the reason that the cheque involved in the case was issued to the complainant by the accused in an account already closed Whatever doubts persisting on the question whether a cheque issued in an account closed would come within the sweep of Section 138 of the N.I. Act had been settled by the Supreme Court in NEPC Micon Ltd. v. Maqna Leasing Ltd. : 1999 (2) KLT(SC)(SN) 39 : AIR 1999 SC 1952 much earlier to the order passed by the learned Magistrate for altering the charge against the accused in the present case from Section 138 of the N.I. Act to Section 417 of the I.P.C. which, in fact, was ordered by him only on 12.1.2000. In the decision referred to above, the apex court has held thus:
Reading Sections 138 and 140 together, it would be clear that dishonour of the cheque by a bank on the ground that account is closed would be covered by the phrase 'the amount of money standing to the credit of that account is insufficient to honour the cheque'. Where cheque is returned by the bank unpaid on the ground that the 'account is closed', It would mean that cheque is returned as unpaid on the ground that 'the amount of money standing to the credit of that account is insufficient to honour the cheque'. Because cheque is dishonoured as the amount of money standing to the credit of 'that account' was 'nil' at the relevant time apart from it being closed. Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of 'that account' on the relevant date when the cheque was presented for honouring the same. The expression the amount of money standing to the credit of that account is insufficient to honour the cheque' is a genus of which the expression 'that account being closed' in spede. After issuing the cheque drawn on an account maintained, a person if he doses 'that account' apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138 as there was insufficient or no fund to honour the cheque in 'that account'. Further, cheque is to be drawn by a person for payment of any amount of money due to him 'on an account maintained by him' with a banker and only on 'that account' cheque should be drawn. This would be dear by reading the Section along with proviso, (b) and (c).
Whatever controversy which persisted whether the dishonour of the cheque on the ground that the account is dosed can be a factor to resist the prosecution under Section 138 of the N.I Act had been laid to rest by the decision in NEPC Micon Ltd. v. Maqna Leasing Ltd. referred to above. The Division Bench of this Court in Vathsan v. Japahari : 2003 (3) KLT 972 after considering the impact of the decision referred to above rendered by the apex court as to the sustainability of a prosecution on a complaint under Section 138 of the N.I. Act on a dishonoured cheque which was issued on an account closed by the maker has held that such situations come within the sweep of Section 138 of the N.I. Act. In the above decision, this Court has held thus:
When a person draws a cheque, he will believe that the cheque will, in no case, be dishonoured. Therefore, such a defence is not allowed as per Section 140 of the Act. Therefore, we are of the view that once a person had issued a cheque drawn on an account, which he was holding in the bank, necessarily, he cannot take up a defence that he did not have a subsisting account on the date of drawl of the cheque. It will, if permitted, undoubtedly, defeat the intent behind Section 140 of the Act. Situations where cheques have been issued against an account, which has been closed prior to the date of drawal of the cheque, shall also come within the fold of Section 138 of the Act to attract criminal liability.
A Single Bench of this Court in Salim v. Thomas : 2004 (1) KLT 816 following the decision of the Division Bench has held that the expression 'on account maintained by him' in Section 138 of the N.I. Act takes in account, that was maintained by him as also in account that is maintained by him.' It may be profitable to take note that the apex court in Goaplast Pvt. Ltd. v. Chico Ursula D' Souza : AIR 2003 SC 2035 a case in which the question involved related to the commission of an offence under Section 138 of the N.I. Act on the instruction of the maker to the bank for stop payment, adverting to the decision in NEPC Micon Ltd. case, referred to above, has again reiterated that when a cheque is returned by a bank with an endorsement 'account closed', it would amount returning the cheque unpaid because 'the amount of money standing to the credit of that account is insufficient to honour the cheque' as envisaged in Section 138 of the N.I. Act. Such being the settled position of law, even on the date when the learned Magistrate altered the charge against the accused from Section 138 of the N.I. Act to Section 417 of the I.P.C., I find an examination of the question whether he has committed the offence under Section 138 of the N.I. Act has to be considered by this Court in exercise of its revisional jurisdiction where it is noticed that the judgments rendered by two inferior courts suffer serious infirmity on account of the jurisdictional error in applying the correct principles of law to the facts of the case.
8. I do not find any merit in the submissions made by the learned Counsel for the accused that this Court cannot consider the question whether the accused has committed an offence under Section 138 of the N.I. Act as it would amount to altering of the charge against him violating the procedural requirements covered by Section 216 of the Cr.P.C. A number of authorities had been relied on by the counsel which have been referred to earlier to impress me that in exercise of revisional jurisdiction conviction and sentence of the accused cannot be modified and altered for a different offence. All the decisions referred to by the counsel related to the cases where warrant trial is envisaged which cannot have applicability to cases where the Code contemplates only of summons trial. The offence under Section 138 of the N.I. Act and also 417 of the I.P.C., both of them come within the sweep of summons trial. Trial of a summons case is governed by Chapter XX of the Cr.P.C. Section 255(3) coming under that Chapter of the Code empowers a Magistrate to convict the accused of any offence triable under that Chapter, 'which from the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby. 'Summons cases contemplate only of posting the accused with the particulars of the offence imputed and asking him whether he pleads: guilty or has any defence to make and there is no need or necessity of framing of charge. That being so, the decisions canvassed by the counsel as to the principles governing the alteration of charges covered by Section 216 of the Cr.P.C. cannot have any application to the facts of the present case. The decisions relied by the counsel Bhaskaran Nair v. Abdul Kareem 2006(4) KLT 48 and Salaian v. Krishnankutty 2007 (1) KLT 6 (Case No. 9) have no application to the facts of the present case. The two decisions were relied only by the learned Counsel to impress me of the limited scope of revisional jurisdiction. Needless to point out when miscarriage of justice is demonstrated, this Court in exercise of revisional jurisdiction is duty bound to correct the infirmities in the orders/judgments of the inferior court to render justice. The above decisions deal with other aspects like procedural irregularities and interfence with the findings of fact in exercise of revisional jurisdiction and the facts involved there in have no similar or parallel with the present case, The decision relied by the learned Counsel in State of Andhra Pradesh v. Thadi Narayana : AIR 1962 SC 240 has no connection or parallel with the present case. In that case the question was whether the accused-proceeded on different charges on acquittal in some of the charges and conviction in others, in the appeal preferred against the convicted charges can there be a retrial on the charges in which they were acquitted was considered and in that context it was held that retrial on the acquitted charges is not possible. That is not the situation covered in the present case and as such the decision has no applicability to this case. I need not say anything about the decision relied by the counsel, namely, Nagaraja Upadhya v. M. Sanjeevan 2008 (1) KLD 543 (kar.) which runs counter to and, in fact, without taking notice of the binding decisions of the apex court referred to earlier.
9. In the given facts of the case white exercising the revisional jurisdiction, this Court has to examine whether the materials produced unerringly prove the guilt of the accused for the offence under Section 138 of the N.I. Act, the prosecution for which emanated from a private complaint filed by the first respondent and if so, in founding a conviction thereunder and passing appropriate sentence whether the accused would be prejudiced by such modification of the conviction and sentence altering from that imposed by two inferior courts. P.W.I is the complainant. His evidence that Ext.PI cheque was issued by the accused towards discharge of a loan has been' found credible and convincing to both the courts below. The cheque presented was dishonoured with endorsement 'account closed' is also proved by the evidence of P.W.2, the Branch Manager of the bank in which the accused maintained the account and Ext.P2 dishonour memo and Ext.P7 certified extract of the ledger of that account. The accused, in fact, set up a plea of discharge disputing the transaction. He has contended that the cheque was issued in a blank form with signature alone as a security for availing a loan for a lesser amount of Rs. 10,000/-. Defence so canvassed remain unsubstantiated by any material. The proved facts arid circumstances clearly demonstrate that the accused has committed an offence under Section 138 of the N.I. Act. Now, the question is whether any prejudice would be caused to the accused in entering a finding of guilt against him in the proved facts of the case as aforementioned for the reason that he had been convicted for a difference offence under Section 417 of the I.P.C. by the two inferior courts. I have already pointed out that the trial against the accused on the complaint of the first respondent proceeded for the offence under Section 138 of the N.I. Act and after recording the entire evidence, the accused was questioned under Section 313 Cr.P.C. to elicit his explanation, if any on the incriminating circumstances appearing in the evidence against him for such offence. Denying the prosecution evidence he has reiterated the defence canvassed that the cheque was issued in blank form with signature alone as security for availing a loan of Rs. 10,000/-. Opportunity given to lead defence evidence was declined by the accused. So, evidently, he was given adequate opportunity to meet the charge under Section 138 of the N.I. Act for which the complainant prosecuted him on the dishonour of Ext.PI cheque issued by him. Merely because the trial court without taking note of the settled position of law proceeded to continue the proceedings altering the charge for a different offence, recorded further evidence and convicted him for such offence, the accused cannot suffer any prejudice in altering his conviction and sentence to Section 138 of the N.I. Act. Had he not been provided an opportunity to meet the charge under Section 138 of the N.I. Act, it could be stated that it is a case where he would suffer prejudice in altering the conviction and sentence. I am satisfied from the facts and circumstances involved that no prejudice is suffered by the accused by altering his conviction to Section 138 of the N.I. Act and sentencing him thereunder which is imperative to do justice, to the complainant and further to advance., the ends of justice as well. So much so, the conviction and sentence imposed against the accused by the trial court, and confirmed by the appellate court, for the offence under Section 417 I.P.C. is altered, and the accused is found guilty of the offence under Section 138 of the N.I. Act and convicted for such offence. Now on the question of sentence to be imposed, having regard to the nature of the offence involved and the long continuation of the proceedings, I find a deterrent punishment of imprisonment for a term against the accused is not essential to meet the ends of justice.
10. The accused is sentenced to undergo imprisonment till the rising of the court and to pay compensation of Rs. 60,000/- under Section 357(3) of the Cr.P.C. to the complainant within two months, failing which he shall undergo simple imprisonment for a period of four months. The accused shall appear and his sureties shall produce him before the Judicial Magistrate of First Class, Afathur on 28.8.2009, and the learned Magistrate shall execute the sentence as directed.
The revision is disposed as above.