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.625 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.2 Prayer: This appeal has been preferred under Section 378 of Crl.P.C.against Judgment of acquittal dated 17.05.2000, in STC.Nos.3496 of1996 respectively, on the file of the Judicial Magistrate No.V,Coimbatore. For Appellant : Mr.V.Sairam For Respondent : Mr.S.SilambananJUDGMENTThe complainant in STC.No.3496 of 1996 on the file of thelearned Judicial Magistrate No.V, Coimbatore, is the appellantherein. This appeal has been preferred only against A2-PushpaGovindan. A2 is a partner of Sree Mookambikai Fabrics, (A1),having office at 75, Lingappa Chettiar Lane No.2, Combatore.Another partner of Sree Mookambikai Fabrics is A3-C.Karthikeyan, whohas been discharged by an order in C.M.P.No.1919/1997 by the trialCourt. The complainant is Roy Tex represented by its soleproprietor V.C.Ramasamy.2. The facts in the private complainant are as follows:-The complainant supplied cotton yarn to the accused oncredit basis. Initially a sum of Rs.17,18,416/- was due to the https://hcservices.ecourts.gov.in/hcservices/ complainant. Out of the said amount the accused have discharged asum of Rs.10,17,000/- leaving a balance of Rs.6,87,418/-. For thedischarge of the above said balance amount the accused had drawn twocheques one for Rs.2,14,584/- and another for Rs.1,00,000/-. Whenboth the cheques were presented in State Bank of India, City Branch,on 12.09.1996 both were dishonoured on the ground that there is nosufficient funds in the account of the drawer of the cheques. Whenthe cheques were presented once again on 18.09.1996 they met withthe same fate. 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 section207 of Cr.P.C., werefurnished to the accused and when the offence was explained to theaccused, he pleaded not guilty. On the side of the complainant,the complainant was examined as P.W.1 and an officer of the StateBank of India was examined as P.W.2. Ex.P.1 to Ex.P.13 were markedon the side of the complainant.4. P.W.1 in his evidence would depose that he is a dealer inyarn and the first accused is a partnership firm and A2 and A3 areits partners and they are incharge of the administration of thebusiness and that they have purchased yarn from the complainant tothe value of Rs.17,87,416/- under invoice Ex.P.1(series six innumber) and toward partial discharge of the amount due to thecomplainant the accused had issued a cheque for Rs.11,34,618/- andwhen the cheque was bounced on presentation and the said fact wasinformed to the accused, the accused inturn issued another cheque ofRs.10,17,000/- and the said cheque was encashed by the complainant.The accused owe a sum of Rs.6,87,418/- to the complainant inconnection with the purchase of yarn from the complainant. Theaccused gave three cheques dated 15.3.1996 drawn on the State Bankof India for Rs.2,16,584/-. Ex.P.2 is the said cheque, which onpresentation in Indian Bank, R.S.Puram Branch, was returned for wantof funds. Ex.P.3 is the memo issued by the Bank relating to Ex.P.2-cheque. Another cheque for Rs1,00,000/- dated 15.9.1996, presentedon 17.9.1996 in Indian Bank, R.S.Puram branch, but the said chequealso met with the same fate. Ex.P.4 is the cheque forRs.1,00,000/-. Ex.P.5 is the memo issued by the bank in respect ofEx.P.4-cheque. The cheques were given with the knowledge of A2. Alawyer's notice was given to the accused on 18.9.1996 and the officecopy of the notice is Ex.P.6. But A2 did not receive the notice,whereas A1 had received the notice. The acknowledgment card isEx.P.7. Ex.P.9 is the letter sent to the accused and unservedpostal envelop is Ex.P.8. The reply sent by A1 is Ex.P.10. Afterfiling of the private complaint A1 had sent Ex.P.11-letter admittinghis liability and also paid Rs.50,000/- in two instalments. Ex.P.12is the statement of accounts. Ex.P.12 is the statement of accounts. https://hcservices.ecourts.gov.in/hcservices/ Ex.P.13 is the letter of delivery in respect of A3.5. P.W.2, an officer of the State Bank of India, would deposeto the fact that the accused are having an account with the StateBank of India, and the cheque filed in this case was presented tothe bank on 12.09.1996 and it bounced. 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.3 were marked.7. After going through the available evidence before the trialCourt, the learned trial Judge has held that the offence underSection 138 of the Negotiable Instrument Act, has been provedagainst A1 and accordingly convicted and sentenced A1 to pay a findof 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.8. Now the point for determination in this appeal is whetherthe findings of the learned trial judge against A2 is perverse towarrant any interference from this Court?9.The Point:- The learned counsel for the appellant basing hisargument on the fact that A1 and A2 are the partners of SriMookambikai 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.4cheques, since as one of the partners of Sri Mookambikai Fabrics, A2is also responsible to the 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 or Secretary or other officers of the compamy are alsoliable for the offence under Section 138 of the provided that theoffence is proved to be committed with the consent or connivance ofthem. So burden is heavily on the complainant to prove that onlywith the consent or connivance or knowledge of A2 the abovementioned cheques viz. Ex.P.2 and Ex.P.4 were drawn by A1 in favourof the complainant. Admittedly in Ex.P.2 and P.4, A1 alone hassigned. When incriminating circumstances were put to A2 she haddenied all the incriminating circumstances put to her. It ispertinent to note in this case that the notice for A2 has beenissued not to No75, Lingappa Chettiar lane No.2, Coimbatore, whereSri Mookambikai Fabrics is situated whereas the notice for A2 wassent to No.103, Raja Annamalai Puram Road, Saibaba colony, as seenfrom Ex.P.8. When this was put to P.W.1 in cross-examination, P.W.1 https://hcservices.ecourts.gov.in/hcservices/ would say that since A2 is not well and taking treatment at herhouse at No.103, Raja Annamalai Puram Road, Saibaba colony, thenotice was sent to her house address. But this explanation cannotbe accepted because it is the case of the complainant that as one ofthe partners of Sri Mookambikai Fabrics, she(A2) is responsible forthe bouncing of Ex.P.2 and Ex.P.4-cheques. Under suchcircumstances, it is the duty of the complainant to issue the legalnotice only to the companies address viz. 75, Lingappa Chettiar LaneNo.2, Coimbatore, where A1 was present and it was delivered to A1under Ex.P.7-acknowledgement. So there was no opportunity given toA2 to explain in what way she(A2) is connected or unconnected withcheques Ex.P.2 and P.4, which were bounced on presentation. It ispertinent to note in this case under Ex.P.11 that A1 has admittedhis liability and it is also in evidence that after filing of thisprivate complaint a sum of Rs.50,000/- has been paid to thecomplainant in two instalments. Under such circumstances, I do notfind any reason to interfere with the findings of the learned trialjudge that A2-Pusha Govindan is not responsible for the bouncing ofEx.P.2 and Ex.P.4 cheques to warrant conviction under Section 138 ofthe Negotiable Instrument Act. Point is answered accordingly.10.In the result, this appeal is dismissed confirming thejudgment in STC.Nos.3496 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.625 of 2000GM (CO)kk 28/3