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2022 DIGILAW 2569 (MAD)

P. K. Ganesan v. N. Jalendran @ Dinesh

2022-08-08

D.BHARATHA CHAKRAVARTHY

body2022
JUDGMENT (Prayer: This Criminal Appeal is filed under Section 378 of Code of Criminal Procedure, 1973, to set aside the order dated 19.12.2018 made in Crl.A.No.236 of 2013 passed by the V Additional Sessions Judge, Chennai, reversing the order dated 11.10.2013 made in C.C.No.1398 of 2012 passed by the Metropolitan Magistrate, FTC II, Egmore, Chennai – 600 008.) 1. The Criminal Appeal has been filed by the complainant in a private complaint alleging the offences punishable under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that by way of a hand loan, the accused borrowed a sum of Rs.52,500/- and in discharge of the said liability, issued the subject matter cheque and since the same was returned dishonoured, a statutory notice was issued and since, the amount was not paid, the complaint was filed. 3. After the sworn statement of the complainant, the trial Court took cognizance of the offence and issued summons to the accused. The accused upon questioning, denied the charge and stood trial. Thereafter, the complainant examined himself as P.W.1 and Ex.P1 to Ex.P4 were marked. There was no evidence let in on behalf of the defence and therefore, the trial Court proceeded to consider the evidence on record and by a Judgment dated 11.10.2013 convicted the accused and imposed Simple Imprisonment for a period of six months and directed the accused to pay a sum of Rs.52,500/- as compensation and in default of payment of the said sum, to undergo one month Simple Imprisonment. 4. Aggrieved by the same, the respondent/accused has filed Criminal Appeal in Crl.A.No.236 of 2013 and during the pendency of the appeal, also filed C.M.P.Nos.12795 of 2015 and 5051 of 2016 for receipt of additional evidence and the lower Appellate Court considered the additional evidence and the other circumstances, acquitted the accused. Aggrieved by the same, the present appeal is filed by the complainant. 5. The lower Appellate Court has acquitted the respondent/complainant on three grounds. Firstly, it has acquitted the accused on the ground of the territorial Jurisdiction. The said finding of the lower Appellate Court that the complaint cannot be countenanced as by taking into account the jurisdiction of the both Banks also the complaint can be sustained. However, the lower Appellate Court found that the complainant claims to have sent a notice through his counsel in Chennai, upon dishonour of the cheque. The said finding of the lower Appellate Court that the complaint cannot be countenanced as by taking into account the jurisdiction of the both Banks also the complaint can be sustained. However, the lower Appellate Court found that the complainant claims to have sent a notice through his counsel in Chennai, upon dishonour of the cheque. But, however, no postal receipt for posting such notice have been produced. The acknowledgement card, which is produced as Ex.P4 did not contain the said counsel's address as the sender's address. But, however, the said acknowledgement card contains the address of the complainant that too showing his address as Ooty. The complainant has also admitted in his cross examination that he is all along living only in Chennai. Therefore, the lower Appellate Court finding that the there was no nexus between the notice in Ex.P3 and the acknowledgement card in Ex.P4 held that the complainant failed to prove the service of the statutory notice on the accused and acquitted the accused. 6. The Learned Counsel however would submit that the counsel who prepared the notice had handed over the same to the complainant and it was posted from his address. The complainant was living in Chennai and his father was living in Ooty, therefore, he used to visit Ooty now and then. It must therefore be seen that whether it was received from the counsel address or from the complainant address, the purpose of issuing statutory notice is to put the accused on notice that the cheque has been returned as dishonored and that he has to pay the sum within the statutory period. 7. Therefore, the view taken by the Lower Appellate Court with regard to the service of statutory notice is also not a possible view and it is wholly untenable. Similarly, regarding the defence of the accused as to when the accused has filed an application for receipt of the additional evidence, the Lower Appellate Court had concluded that the additional evidence cannot be received at the appellate stage, however, accepted the said defence as contained in the additional evidence, which is perverse and it is not a possible view. Similarly, regarding the defence of the accused as to when the accused has filed an application for receipt of the additional evidence, the Lower Appellate Court had concluded that the additional evidence cannot be received at the appellate stage, however, accepted the said defence as contained in the additional evidence, which is perverse and it is not a possible view. Therefore, all the three reasonings given by the Lower Appellate Court are untenable and therefore, this Court has no other option but to interfere with the acquittal and I find that the respondent/accused is guilty of the offence under Section 138 of the Negotiable Instruments Act. 8. Now coming to the sentence, in view of the facts and circumstances of the case, I am of the view that the respondent/accused can first be directed to pay the fine amount including the cheque amount and in default he can be directed to undergo the sentence. 10. In view thereof, this Criminal Appeal is allowed on the following terms:- (i) The Judgment of the V-Additional Sessions Judge, Chennai in C.A.No.236 of 2013, dated 19.12.2018 is set aside and the finding of guilt for the offence under Section 138 of the Negotiable Instruments Act, 1881, as per the Judgment of the Learned Metropolitan Magistrate, FTC No.II, Egmore, Chennai, dated 11.10.2013 in C.C.No.1398 of 2012 is restored; (ii) The Appellant is directed to pay the total fine amount of Rs.52,500/- within a period of twelve weeks from the date of receipt of the copy of this order. (iii) On such payment, out of the fine amount paid by him, the sum of Rs.52,500/- is ordered to be paid as compensation to the appellant/complainant, without insisting any formal application, but, upon verification of the identity and identification of the counsel for the complainant; (iv) It is made clear that there shall be no further extension of time for payment of the above said fine amount and in default of the payment of the fine amount, the respondent/accused shall undergo Simple Imprisonment for a period of six months.