THE HONOURABLE MR v. Pushpa Govindan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 23.03.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.Nos.626 of 2000Roytex rep by itsSole Proprietor,V.C.RamasamyS/o.Shri.Chidambaram,Aged about 45 years,61/2, Selvam Nagar,Coimbatore 41. .. Appellant/ ComplainantVs.Pushpa Govindan .. Respondent/Accused No.2Prayer: This appeal has been preferred under Section 378 of Cr.P.Cagainst Judgment of Acquittal of the second Accused dated17.05.2000, in STC.No.3969 of 1996, on the file of the JudicialMagistrate No.V, Coimbatore. For Appellant : Mr.V.Sairam For Respondent : Mr.S.Silambanan JUDGMENTThe complainant in STC.No.3969 of 1996 on the file of thelearned Judicial Magistrate No.V, Coimbatore, is the appellantherein. This appeal have been preferred only against only A2-PushpaGovindan. A2 is partner of Sree Mookambikai Fabrics, (A1), havingoffice at 75, Lingappa Chettiar Lane No.2, Combatore. Anotherpartner of Sree Mookambikai Fabrics is A3-C.Karthikeyan, who hasbeen discharged by an order in C.M.P.No.3069/1997 by the trialCourt. The complainant is Roy Tex represented by its soleproprietor V.C.Ramasamy.2. The facts in the private complaint are that the complainantsupplied cotton yarn to the accused on credit basis and a sum ofRs.1,12,600/- was due to be paid by the accused to the complainant.The accused gave a chque for Rs.1,00,000/- dated 01.10.1996 andanother cheque for Rs.12,600/- dated 15.10.1996. Both the chequeswere drawn on the State Bank of India, Coimbatore. On presentationof the cheques both the cheques were returned on 23.10.1996 with anendorsement that there is no sufficient funds available in the https://hcservices.ecourts.gov.in/hcservices/ accounts of the accused. The complainant sent lawyer's notice on24.10.1996. A2 received the notice. A1 & A3 evaded the service ofthe said notices and notices were returned with an endorsement that'party not available'. Hence, the complaint.3. The private complaint was taken on file by the learnedJudicial magistrate No.V, Coimbatore, for an offence under Section138 of the Negotiable Instrument Act, and on appearance of theaccused on summon, copies under section 207 of Cr.P.C., werefurnished to the accused and when the offence was explained to theaccused, the accused pleaded not guilty. On the side of thecomplainant, the complainant was examined as P.W.1 and an officerof the State Bank of India was examined as P.W.2. Ex.P.1 toEx.P.18 were marked on the side of the complainant.4 P.W.1 is the complainant. The photocopies of the invoicesare Ex.P.1(series). P.W.1 would depose that for the discharge ofthe amount to the complainant, the accused gave one cheque forRs.1,00,000/- dated 01.10.1996 and another cheque for Rs.12,600/-on 15.10.1996 and both cheques were drawn on the State Bank ofIndia and when the cheques were presented for encashment throughIndian Brank, R.S. Puram Branch, both cheques were returned with anendorsement that there is no sufficient funds in the accounts ofthe drawer. Ex.P.2 and Ex.P.3 are the cheques. Ex.P.4 is thebank's memo. Ex.P.5 is the debit advice. On 24.10.1996 lawyer'snotice was sent to the accused by courier service. The copy of thenotice is Ex.P.6. Ex.P.7 is the acknowledgement for the noticebeing served on A2. For A1 & A3 evaded the service of notice andundelivered notice are Ex.P.8 (series). The letter sent by thecomplainant to the accused demanding payment is Ex.P.9. Ex.P.10 isthe reply sent by A2. Ex.P.12 is purchase bills. Ex.P.13 isthe sale tax assessment order. Another purchase bill is Ex.P.14and delivery note is Ex.P.15. The statement of account of theaccused is Ex.P.16. The cheque for Rs.4,00,000/- given by theaccused was encashed by P.W.1. Ex.P.17 is the personal accountcopy of the accused. Ex.P.18 is the letter issued by A1 admittinghis liability. A1 has also paid Rs.25,000/- towards this debt.5. P.W.2, an officer of the State Bank of India, would deposeto the fact that A1 is having an account with the State Bank ofIndia and Ex.P.2 and Ex.P.3 were presented in the State Bank ofIndia, but were dishonoured on the ground that there is nosufficient funds in the drawer's account.6. When incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C, the accused denied their complicitywith the crime. On behalf of the accused D.W.1 was examined andEx.D.1 to D.6 were marked. https://hcservices.ecourts.gov.in/hcservices/

7. D.W.1 is the Assistant Manager in the State Bank of India,who would depose that a cheque for Rs.4,00,000/- in favour of thecomplainant, Roytex, drawn by A1 was encahsed and that the saidcheque is Ex.D.5. Ex.D.6 is the intimation given by A1 to the bankadvising the bank to stop the payment.8. After going through the available evidence the before thetrial Court, the learned trial Judge has held that the offenceunder Section 138 of the Negotiable Instrument Act, has been provedagainst A1 and accordingly convicted and sentenced A1 to pay a fineof Rs.5,000/- and A2 was found not guilty under Section 138 and A2was acquitted under section 255(1) of Cr.P.C. Aggrieved by thefindings against A2 of the trial judge, the complainant has filedthis appeal.9. Now the point for determination in this appeal iswhether the findings of the learned trial judge against A2 isperverse to warrant any interference from this Court?10.The Point:- The learned counsel for the appellantbasing his argument on the fact that A1 and A2 are the partners ofSri Mookambikai Fabrics, Coimbatore, and as per section 141 of theNegotiable Instrument Act, A2 is also liable under Section 138 ofthe Negotiable instrument Act for bouncing of Ex.P.2 and Ex.P.3cheques, since as one of the partners of Sri Mookambikai Fabrics,A2 is also responsible for conduct of the business of the companyand shall be deemed to be guilty of the offence, but the learnedtrial judge without considering this, has acquitted A2. As perSection 141(2) of Negotiable Instrument Act, even any director,Manager, Secretary or other officers of the company are also liablefor the offence under Section 138 of the Negotiable Instrument Act,provided that the offence is proved to be committed with theconsent or connivance of them. So burden is heavily on thecomplainant to prove that only with the consent or connivance orknowledge of A2 the above mentioned cheques viz. Ex.P.2 and Ex.P.3were drawn by A1 in favour of the complainant. Admittedly inEx.P.2 and Ex.P.3, A1 alone has signed. When incriminatingcircumstances were put to A2 she had denied all the incriminatingcircumstances put to her. It is pertinent to note in this casethat the notice for A2 has been issued not to No.75, LingappaChettiar lane No.2, Coimbatore, where Sri Mookambikai Fabrics issituated whereas the notice for A2 was sent to No.103, RajaAnnamalai Puram Road, Saibaba colony, as seen from Ex.P.8. Whenthis was put to P.W.1 in cross-examination, P.W.1 would say thatsince A2 is not well and taking treatment at her house at No.103,Raja Annamalai Puram Road, Saibaba colony, the notice was sent toher house address. But this explanation cannot be accepted becauseit is the case of the complainant that as one of the partners of https://hcservices.ecourts.gov.in/hcservices/ Sri Mookambikai Fabrics, she(A2) is responsible for the bouncing ofEx.P.2 and Ex.P.4-cheques. Under such circumstances, it is theduty of the complainant to issue the legal notice only to thecompanies address viz. 75, Lingappa Chettiar Lane No.2, Coimbatore.So there was no opportunity given to A2 to explain in what way she(A2) is connected or unconnected with cheques Ex.P.2 and Ex.P.3,which were bounced on presentation. It is pertinent to note inthis case under Ex.P.11 A1 has admitted his liability and it isalso in evidence that after filing of these private complaints asum of Rs.50,000/- has been paid to the complainant in twoinstalments. Under such circumstances, I do not find any reason tointerfere with the findings of the learned trial judge that A2-Pusha Govindan is not responsible for the bouncing of Ex.P.2 andEx.P.3 cheques to warrant conviction under Section 138 of theNegotiable Instrument Act. Point is answered accordingly.11. In the result, this appeal is dismissed confirmingthe judgment in STC.Nos.3969 of 1996, on the file of the JudicialMagistrate No.V, Coimbatore.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo,1.The Judicial Magistrate No.V, Coimbatore.2.The Chief Judicial Magistrate, Coimbatore.1 cc to Mr.S. silambanan, Advocate, sr. 18854Crl.A.No.626 of 2000GM (CO)kk 28/3