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2007 DIGILAW 1090 (MAD)

M. Nithyanandam v. V. P. Senthilkumaran

2007-03-27

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- This Revision has been preferred against the judgment in C.A.No.83 of 2003 on the file of the I Additional Sessions Judge, Salem. The accused in C.C.No.509 of 2001 on the file of the Judicial Magistrate No.III, Salem, is the revision petitioner herein. The accused has been convicted and sentenced to undergo 6 months RI and was directed to pay a compensation of Rs.2,50,000/-with default sentence under Section 138 of the Negotiable Instrument Act. The appeal preferred by the accused in C.A.No.83 of 2003 also ended against him. Hence, this revision. 2. The short facts in the complaint relevant for the purpose of deciding this appeal are that on 1. 2001 the accused had borrowed Rs.2,50,000/-from the complainant and had drawn a cheque for Rs.2,50,000/-on 7. 2001 in favour of the complainant and when the cheque was presented in Canara Bank for encashment, the same was returned with an endorsement that there is no sufficient funds in the account of the drawer on 7. 2001. Hence, the complaint. 3. After recording the sworn statement of the complainant, the complaint was taken on file by the learned Judicial Magistrate No.III, Salem, as C.C.No.509 of 2001. On appearance of the accused on summons copies under Section 207 of Cr.P.C., were furnished to the accused and when the offence was explained to the accused he pleaded not guilty. On the side of the complainant P.W.1 and P.W.2 were examined and Ex.P.1 to P.5 were marked. 4. P.W.1 in his evidence would depose that on 1. 2001 the accused had borrowed Rs.2,50,000/- and to discharge the said loan he had drawn a cheque for Rs.2,50,000/-on 7. 2001 in District Central Co-operative Bank Ltd., and when the said cheque was presented in Canara Bank, Suramangalam Branch, the same was dishonourned on the ground that there was no sufficient funds in the account of the drawer on 7. 2001. The complainant had issued a notice on 17. 2001 to the accused. Even after the receipt of the said notice on 17. 2001, the accused has not chosen to send any reply. Ex.P.1 is the dishonoured cheque. Ex.P.2 is the memo of the bank sent to the complainant along with the dishonourned cheque. Ex.P.3 is the copy of the notice. Ex.P.4 is the acknowledgment for the complainant having received the original of Ex.P.3-notice. Ex.P.5 is the statement of accounts pertaining to the accuseds account. 5. Ex.P.1 is the dishonoured cheque. Ex.P.2 is the memo of the bank sent to the complainant along with the dishonourned cheque. Ex.P.3 is the copy of the notice. Ex.P.4 is the acknowledgment for the complainant having received the original of Ex.P.3-notice. Ex.P.5 is the statement of accounts pertaining to the accuseds account. 5. P.W.2 is the Deputy Manager of the District Central Co-operative Bank Ltd., Vazhapadi. He would depose that Ex.P.1-cheque was forwarded by Canara Bank, Salem on 7. 2001 for realization and since there was only a meagre balance of Rs.2,062/- in the account of the drawer the said cheque was returned to the payee of the cheque with an endorsement that there is no sufficient funds in the drawers account. 6. When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused would deny his complicity with the crime. After going through the oral and documentary evidence available before the trial court, the learned trial judge has held that the offence under Section 138 of the Negotiable Instrument Act, has been attracted against the accused and accordingly convicted and sentenced the accused to undergo six months RI and also directed to pay a sum of Rs.2,50,000/- towards compensation with default sentence. Aggrieved by the findings of the learned trial judge, the accused has preferred an appeal before the I Additional Secessions Judge, Salem, who after scanning the evidence both oral and documentary has ultimately concurred with the findings of the learned trial judge, thereby dismissing the appeal. Hence, this revision petition. 7. Now the point for determination in thisrevision is whether the judgment of the I Additional Sessions Judge, Salem, in C.A.No.83 of 2003 is to be set aside for the reasons stated in the memorandum of the appeal? .8. The Point:- The only defence raised by the accused before the Courts below is that the accused had not drawn the cheque as one of the partners of the complainant company viz. Sri Ragavendra Steels, Cuddalore. Relying on a decision in 1998(2) CTC 372 , the learned trial judge has held that the prosecution against the partner alone without impleading the firm is maintainable. Sri Ragavendra Steels, Cuddalore. Relying on a decision in 1998(2) CTC 372 , the learned trial judge has held that the prosecution against the partner alone without impleading the firm is maintainable. The learned trial judge has observed that even without impleading the firm the complainant is competent to file the complaint against the partner alone and consequently rejected the said defence of the accused that the complaint filed against the accused without impleading the partnership firm is not maintainable and held that under Section 138 of the Negotiable Instrument Act, the complainant has proved that Ex.P.1-cheque was drawn for a subsisting debt on the date of drawal of Ex.P.1-cheque and convicted and sentenced the accused as indicated above. Since there is no valid ground to set aside the judgment of the trial Court, the first appellate Court also concurred with the findings of the learned trial Judge. I do not find any illegality or infirmity in the findings of the learned trial judge to set aside the same. The learned counsel for the revision petitioner would contend that even the whereabouts of the accused is not known now and after the suspension of the sentence by the first appellate Court the accused has not surrendered before the trial Court, nor filed any application for extension of the suspension of sentence. Under such circumstances, I do not find any merit to entertain this revision petition. Point is answered accordingly. 9. In the result, the revision petition is dismissed confirming the judgment in C.A.No.83 of 2003 on the file of the I Additional Sessions Judge, Salem. The trial Court is directed to secure the accused to undergo the sentence.