THE HONOURABLE MR v. S.P.Sundarakesari

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 25.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.145 of 2001Thiru Myilvangam.. Appellant/Complainantvs.S.P.Sundarakesari .. Respondent/Accused Prayer: This appeal has been preferred against the order dated31.07.2000 made in C.C.No.106 of 1999 on the file of the JudicialMagistrate No.II, Hosur.For Petitioner : Mr.N.S.SivakumarFor Respondent : Mr.J.R.K.Bhavananthan JUDGMENTThis appeal has been preferred against the judgment inC.C.No.106 of 1999 on the file of the Judicial Magistrate No.II,Hosur.2. The short facts of the case relevant for the purpose ofdeciding this revision are as follows:-A private complaint was preferred by the complainant underSection 200 of Cr.P.C., for an offence under Section 138 of theNegotiable Instruments Act against the accused alleging that afterreceiving a loan of Rs.9,51,322/- on 7.6.1997, the accused haddrawn two cheques one for Rs.4,54,357/- and another forRs.4,96,785/- on 30.1.1999 in favour of the complainant in orderto discharge the above said debt. When those cheques werepresented for encashment in Syndicate Bank, Hosur Branch, by thecomplainant on 4.2.1999, the cheques were returned by the bank onthe ground 'payment stopped by the drawer' on 11.2.1999. When theabove said fact of dishonour of the cheques was informed to thecomplainant, he had issued a notice as required under law to theaccused informing about the return of those two cheques drawn bythe accused on 30.1.1999. Even after the receipt of the saidnotice, the accused not cared to discharge the said debt. https://hcservices.ecourts.gov.in/hcservices/

3. The complaint was taken on file by the learned JudicialMagistrate after recording the sworn statement of the complainant.On appearance of the accused on summons copies under Section 207of Cr.P.C., were furnished to the accused and when the offence wasexplained to the accused and questioned, the accused pleaded notguilty.4. On the side of the prosecution P.W.1 to P.W.3 wereexamined and Ex.P.1 to Ex.P.8 were marked. 5. P.W.1 is the complainant. Before the trial Court, thecomplainant would depose what he has narrated in the complaint.Through the complainant-P.W.1 the dishonouring of the chequesdated 30.1.1999 were exhibited as Ex.P.1 and Ex.P.2 respectively.Ex.P.3 & Ex.P.4 are the memos of the bank informing that the abovesaid two cheques were returned on the ground 'payment stopped bythe drawer'. Ex.P.5 is the copy of the suit notice dated18.2.1999 issued by the complainant to the accused on 20.2.1999.P.W.1 would say that the accused had received the original ofEx.P.5 notice. According to P.W.1, inspite of the receipt ofnotice the accused had not chosen to discharge the loan.6. P.W.2 is the bank Manager of Syndicate Bank, Hosur Branch.According to P.W.2, the complainant is having an account in thesaid branch of the bank and Account No. is 1726 and thecomplainant had presented Ex.P.1 & Ex.P.2 cheques for encashmentand when those two cheques were forwarded to the State Bank ofTiruvangore, Madikaranai Branch, they were returned by the saidbranch of the bank stating that payment stopped by the drawer andthat the said fact was informed by the bank on 9.2.1999 to thecomplainant.7. P.W.3 is the Manager of the State Bank of Thiruvangore,Madikaranai branch. He would depose that Ex.P.1 & Ex.P.2 chequeswere forwarded to Syndicate Bank, Hosur Branch for collection andthat the accused Sundarakesari is having an account in theirbranch, but as on 5.2.1999 a sum of Rs.34/40 alone was in thecredit of the accused's account. Ex.P.6 & Ex.P.7 are theintimation extracts informing the Syndicate Bank, Hosur Branch,about the dishonour of the cheques. Ex.P.8 is the copy of theletter dated 28.1.1999 to which the accused had intimated the bankto stop the payment. https://hcservices.ecourts.gov.in/hcservices/

8. When incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C., the accused had denied hiscomplicity with the crime. The accused has not let in either oralor documentary evidence by way of defence. 9. After going through the oral and documentary evidence letin before the trial Court, the learned trial judge has come to theconclusion that there was no proper service of notice to theaccused as contemplated under Section 138(b) of the NegotiableInstruments Act and has further observed that there is aviolation of the provision under section 142(b) of the NegotiableInstruments Act and accordingly held that guilt against theaccused under Section 138 of the Negotiable Instruments Act wasnot proved and acquitted the accused under Section 255(1) ofCr.P.C., which necessitated the complainant to prefer this appeal.10. Now the point for determination in this appeal is whetherthe order of the trial judge is perverse in nature to warrant anyinterference from this Court?11. The Point:- 11(a) Heard the submissions made by the learned counselMr.N.S.Sivakumar appearing for the appellant and the learnedcounsel Mr.J.R.K.Bhavananthan appearing for the respondent andconsidered their rival submissions. The learned counselMr.N.S.Sivakumar appearing for the appellant would attract theattention of this Court to a wrong observation made by the learnedtrial Judge in her judgment. The learned counsel for theappellant would point out that at para 6 (inner page 7 to page 11of the typed set) the learned trial Judge has observed thataccording to P.W.1, Ex.P.5 is the office copy of the notice, butat inner page No.9 at page 13 of the typed set, the learned trialjudge has observed that no acknowledgment for Ex.P.5 was producedby the complainant, which had prevented the Court from coming tothe conclusion that when the accused had received the notice toenable the Court to fix the date of cause of action. So accordingto the learned trial Judge, there is a violation of the mandatoryprovision contemplated under Section 138 of the NegotiableInstruments Act and also the provision under Section 142(b) of theNegotiable Instruments Act. It is pertinent to note from theanexure to the Judgment that Ex.P.6 is shown as ledger extractwhereas from the records produced by the trial Court Ex.P.6 seemsto be an acknowledgment dated 17.2.1999 (containing the postalseal dated 20.2.1999). 11(b)At this juncture the learned counselMr.J.R.K.Bahvananthan appearing for the respondent would bring tothe notice of this Court that Ex.P.6-acknowledgment is not forEx.P.5-notice by pointing out the address furnished in Ex.P.5 for https://hcservices.ecourts.gov.in/hcservices/ the accused and the address given in Ex.P.6-acknowledgment forthe accused. In Ex.P.5, copy of the notice, the address givenfor the accused is as follow:- To, Mr.SP.SUNDARAKESARI, No.3, 4th Street, North Extension, Subramaniyapuram, Karaikudi – 623 003.But in Ex.P.6 the address given for the accused is as follows:-Sri.SP.SUNDARAKESARI, Managing Partner, TEXCONES TUBES COMPANY, No.1/6, Mathur Road, Alagappapuram Post, Karaikudi – 623 003.So the address furnished to the accused in Ex.P.5 differs from theaddress furnished to the accused under Ex.P.6. Further thelearned counsel for the respondent would point out that in Ex.P.6there is no seal of the company of the accused finds a place andone S.Ganesan has signed in the acknowledgment-Ex.P.6. Under suchcircumstances, the learned counsel for the respondent wouldcontend that Ex.P.6 is not the acknowledgment for the original ofEx.P.5-notice. But the learned trial Judge has not at alldiscussed about Ex.P.6-acknowledgment and absolutely there is nodiscussion by the trial Court with regard to the above mentionedfacts. If Ex.P.6 is the acknowledgment for the original of Ex.P.5then there is a cause of action for the petitioner. But thedefinite observation of the learned trial judge is that there isno acknowledgment produced by the complainant for Ex.P.5-notice.Under such circumstances, this court feels that a definite findingis absolutely necessary in respect of Ex.P.6, which was not at allbeen considered by the trial Court. Under such circumstances, Iam of the view that it is a fit case for remand to the trial Courtfor reappreciation of evidence by way of retrial. Point isanswered accordingly.12. In the result, the appeal is allowed and the judgment ofthe trial Court in C.C.No.106 of 1999 on the file of the JudicialMagistrate No.II, Hosur is set aside and the matter is remanded tothe trial Court for reappreciation of the evidence. The trialCourt shall give an opportunity to both sides to let in furtherevidence. It is made clear that the trial Court shall not becarried away by any of the observation made by this Court in this https://hcservices.ecourts.gov.in/hcservices/ Judgment. The trial Court is directed to dispose of the casewithin two months from the date of receipt of copy of this order.SsvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Judicial Magistrate NO.II, Hosur.2. The Chief Judicial Magistrate, Dharmapuri.3. The Section Officer, Criminal Section, High CourtMadras+ one cc to Mr. J.R.K. Bhavananthan, Advocate sr no. 27953+ one cc to Mr. M. Sathyanarayanan, Advocate sr no. 28597ssv(co)nm(03.05.07)Crl.A.No.145 of 2001