Madras High Court
G.Thiagarajan vs A.Annadurai on 1 August, 2012
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.08.2012 CORAM THE HON'BLE MS.JUSTICE R. MALA Crl.A.No.806 of 2009 G.Thiagarajan .. Appellant Vs. A.Annadurai .. Respondent Prayer.:- Appeal is filed under Section 378 of Cr.P.C. against the Judgment of acquittal dated 18.12.2007 made in C.C.No.178 of 2007 on the file of learned Judicial Magistrate No.1, Erode. For Appellant : Mr.R.Marudhachalamurthy Mr.M.Guru Prasad For Respondent : Mr.P.Tamilavel - - - - - J U D G M E N T
This appeal arises out of the Judgment of acquittal dated 18.12.2007 made in C.C.No.178 of 2007 on the file of learned Judicial Magistrate No.1, Erode.
2. The appellant as a complainant preferred a private complaint under Section 138 of the Negotiable Instruments Act stating that he is doing Grocery business under the name and style of Angalamman Maligai Stores at Dharmapuri Main road, New bus stand, Mecheri Post in Salem District. The accused is employed at Coimbatore and the complainant is known to him for the past several years. On 14.01.2006, the accused borrowed a sum of Rs.1,25,000/- for his urgent expenses from the complainant promising to pay the same within 6 months. To discharge the same, he issued two post dated cheques bearing No.253575 for a sum of Rs.25,000/- drawn on Central Bank of India, Peelamedu, Coimbatore Branch dated 14.02.2006 in favour of the complainant and another cheque bearing No.253576 for a sum of Rs.1,00,000/- drawn on Central Bank of India, Peelamedu, Coimbatore Branch dated 14.07.2006 in favour of the complainant. When the complainant presented the cheque dated 14.02.2006 before the Indian Bank, Mecheri Branch, on 20.02.2006, the same was dishonoured. Therefore, the complainant filed a complaint before the Judicial Magistrate No.1, Erode, which was taken on file in C.C.No.579 of 2006 and the same is pending. On 03.08.2006, the complainant presented Ex.P1-cheque dated 14.07.2006, bearing No.253576, for encashment before the Indian Bank, Mecheri and the same was dishonoured and returned under Ex.P2-return memo with an endorsement insufficient funds on 07.08.2006. Therefore, the complainant issued Ex.P3-registered notice dated 28.08.2006 to the accused and the same was returned on 06.09.2006 as unserved and not claimed and the returned cover was marked as Ex.P4 and the postal receipt was marked as Ex.P5. The accused issued the cheque after knowing fully well that there is no sufficient funds in his account to honour the cheque, thereby, committed offence under Section 138 of the Negotiable Instruments Act.
3. The learned Judicial Magistrate, after following the procedure, questioned the accused. But, the accused pleaded not guilty. Therefore, the learned Judicial Magistrate, examined the complainant as P.W.1 and marked the documents as Exs.P1 to P5. On the side of the accused, Exs.D1 to D5 were marked. After considering the oral and documentary evidence, the learned Magistrate, dismissed the complaint holding that the complainant has not proved that the disputed cheque was issued for discharging the legally enforceable debt. Further, it was held that the notice was not issued under Section 138 Proviso (b) of the Negotiable Instruments Act. Aggrieved the same, the present appeal has been filed.
4. Challenging the Judgment of acquittal, the learned counsel for the appellant submitted that the respondent had admitted that the cheque had been issued at Police Station on the basis of the complaint given by P.W.1. So, the appellant is entitled for invoking the presumption under Section 139 of the Negotiable Instruments Act that Ex.P1-Cheque was issued for discharging the legally enforceable debt. The appellant had also issued registered notice, but the same was returned indicating as Not claimed. Therefore, the notice was sent under Section 138 of the Negotiable Instruments Act and the returned cover and postal cover were marked as Exs.P4 and P5 before the Court. But, the trial Court committed an error in dismissing the complainant and acquitting the accused. Hence, he prayed for setting aside the Judgment of acquittal.
5. Resisting the same, the learned counsel for the respondent submitted that there was no cause of action and no notice under Section 138 of the Negotiable Instruments Act. He further submitted that in the notice, the address of the respondent had wrongly been mentioned and the same had been admitted by P.W.1 in his cross examination. Since notice had not been sent to the respondent in the correct address, no cause of action arose. He further submitted that the cheque was issued only at the Police Station after giving complaint on 13.09.2005. Hence, the trial Court has considered all the aspects in a proper perspective and came to the correct conclusion that Ex.P1 was not issued for discharging the legally enforceable debt. So, the Judgment of trial Court does not warrant any interference. Hence, he prayed for dismissal of this order.
6. Considered the rival submissions made on either side and perused the records.
7. The date of disputed cheque is 14.07.2006, i.e. Ex.P1, which was presented for encashment on 03.08.2006 and the same was returned as insufficient funds under Ex.P2 on 07.08.2006. Therefore, Ex.P3-notice was issued on 28.08.2006 to the accused and the same was returned on 06.09.2006 indicating as not claimed. The returned cover and postal receipt were marked as Exs.P4 and P5.
8. Now, this Court has to decide whether the notice was issued under Section 138 Proviso (b) of the Negotiable Instruments Act and whether cause of action arose?. Admittedly, notice was issued within the stipulated time from the date of returning the cheque under Ex.P2-return memo. But, in the notice, the respondent's address had wrongly been mentioned. The appellant, in his cross examination, himself admitted that the accused was working in P.S.G.College of Technology. While perusing Ex.P3-notice, it was mentioned as Thiru.A.Annadurai, Son of Arumugham, Door No.22/7, Housing Unit, Near P.S.G. Hospital, Peelamedu, Coimbatore. In the returned cover also, the above said address was mentioned, which was returned as not claimed. The appellant himself admitted that the notice was sent to the wrong address of the respondent. While perusing the complaint, it was specifically mentioned as C.Annadurai, Son of Arumugam, previously working as a Lecturer in Physics in P.S.G. College of Arts and Science and now residing at Door No.22/7, Housing Unit, Near P.S.G.Hospital, Peelamedu, Coimbatore. While the appellant herein had admitted that the accused was working in the PSG College of Technology, the notice was sent to the wrong address. Hence, the notice was not issued under Section 138 Proviso (b) of the Negotiable Instruments Act. In such circumstances, I am of the view that the trial Court is correct in holding that the notice was not sent to the correct address. Hence, no cause of action arose for preferring the complaint under Section 138 of the Negotiable Instruments Act.
9. Now, this Court has to decide whether Ex.P1-Cheque for Rs.1,00,000/- was issued for discharging the legally existing liability?. In the complaint itself, the appellant/P.W.1 stated that the respondent herein borrowed a sum of Rs.1,25,000/- on 14.01.2006 for his urgent expenses promising to repay the same within six months. To discharge the same, two post dated cheques were issued by the respondent, i.e. one for Rs.25,000/- and another for Rs.1,00,000/-.
10. As per the evidence of P.W.1, he knows the respondent's father. He entered into a Memorandum of Undertaking, which was marked as Ex.D1, on 05.10.1999 along with Mr.Arumugam, father of the respondent, wherein, it was stated that M/s. Angalamman Agency is a sub dealer for Ramar Tamil Devi Herbal Fuel. On 27.01.2003, there was a publication, wherein, the appellant's name had been mentioned as Sub-agent for Omalur Taluk to sell Tamil Devi Herbal Fuel. Thereafter, an agreement was entered into between the respondent on behalf of his father and Venu Devi, who is the Managing Director of Ramar Bio Fuel (P) Ltd., wherein, it was stated that the respondent agreed to repay a sum of Rs.2,00,000/- to Venu Devi and further it was stated that there is no business dealing with regard to Tamil Devi Herbal Fuel between M/s. Anna Enterprises and other 7 companies. Thereafter, the appellant/P.W.1 gave a complaint before B-6, Crime Branch, Peelamedu, which was taken on file in C.No.448/DC/Crime/05. On the basis of the complaint only, Ex.P1-Cheque and another cheque in Crl.A.No.807 of 2009 had been obtained by the appellant in the Police station. The above said factum had been conceded by the appellant/P.W.1 in his cross examination.
11. Further, P.W.1, in his examination, fairly conceded that on 13.09.2005, he gave a complaint before B-6, Crime Branch, Peelamedu. On the basis of the complaint given by him, the respondent / accused was taken to the Police Station from the College. Thereafter, the respondent was examined, at that time only, he handed over two cheques to the appellant, i.e. the present disputed cheques. All the particulars of the cheques were given. He also gave a written statement before the Inspector of Police, i.e. Ex.D5. Therefore, it is appropriate to incorporate the same, which reads as follows:
"g[fhhpd; mog;gilapy; vjphpia fy;Y}hpapypUe;J Tl;o te;jhh;fs; vd;why; rhpjhd;/ mJ rk;ke;jkhf vjphpia tprhhpj;jhh;fs;/ me;j rkak; 2 fhnrhiyfs; xg;gilj;jdh;/ me;j fhnrhiyfs; ,e;j tHf;fpy; bfhLj;j fhnrhiyfs; vd;why; rhpjhd;/ me;j fhnrhiyfs; tpgu';fs; midj;Jk; ,jpy; Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;/ ehd; vGj;JK:ykhd fhty; Ma;thsh; mth;fSf;F bfhLj;j thf;FK:yk; v/j/rh/M/5 Mfk;/"
He fairly conceded that the respondent had not borrowed any amount and since he had not received any written document in respect of the debt amount from the respondent, he utilized the cheque for preferring the complaint. The said factum has been considered by the trial Court.
12. The issuance of cheque is entirely different from execution of cheque. The appellant / P.W.1 himself admitted that he obtained two cheques from the respondent in the Police Station on the basis of the complaint given by him and he had not lend money to the accused. Thereafter, he filled up the cheque and presented the same before the Bank for encashment. Since the cheque was dishonoured, he preferred the complaint against the accused. Considering the same, the appellant has miserably failed to prove that Ex.P1-cheque was issued for discharging the legally enforceable debt.
13. In such circumstances, I am of the view that the trial Court is correct in holding that the appellant has failed to prove that Ex.P1 was issued for discharging the legally enforceable debt and no notice was issued to the correct address of the respondent under Section 138 of the Negotiable Instruments Act and no cause of action arose for preferring the complaint. Hence, the Judgment of the trial Court does not warrant any interference and the same is hereby confirmed.
14. In fine:
a) the appeal is dismissed;
b) the Judgment of trial Court passed under Section 138 of the Negotiable Instruments Act is hereby confirmed.
ogy To
1. The Learned Judicial Magistrate No.1, Erode