Er. S.Karuppusamy v. C.Sugumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12-07-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No. 149 of 2001andCrl.M.P.Nos. 5614 of 2002 & 356 of 2007Er. S.Karuppusamy ..Appellant/complainant-vs-C.Sugumar.. Respondent/accusedThis appeal is filed under section 138 of NegotiableInstrument Act against the Judgment passed in C.A.No.238 of1999 dated 12.1.2001 on the file of IV Additional SessionsJudge, City Civil Court, Chennai against the Judgment inC.C.No.7494 of 1997 dated 30.09.1999 on the file of XVMetropolitan Magistrate, George Town, Chennai.For appellant : : Mr. T.P.KathiravanFor respondent: : Mr.K.KannanJUDGMENTThis appeal has been preferred against the Judgment inC.A.No.238 of 1999 on the file of IV Additional SessionsJudge, City Civil Court, Chennai which had arisen out of theJudgment in C.C.No.7494 of 1997 on the file of XV MetropolitanMagistrate, George Town, Chennai-1. The complainant hadpreferred a complaint under Section 200 of Cr.P.C. for anoffence under Section 138 of the Negotiable Instruments Act(herein after referred to as "the Act") against the accused. 2. After taking cognizance of the offence, the learnedtrial Judge has issued summons to the accused, on hisappearance furnished copies under Section 207 of Cr.P.C. andwhen the offence was explained to the accused and questionedthe accused pleaded not guilty.3 Before the trial Court P.Ws 1 to 3 were examined. Exs https://hcservices.ecourts.gov.in/hcservices/ P1 to P13 were exhibited.3a) P.W.1 is the complainant. According to P.W.1, on2.4.1997, the accused had received a sum of Rs.50,000/- fromhim and had drawn a cheque for Rs.50,000/- on the same day andwhen the cheque was presented on 12.8.1997 for collection, thesame was returned with an endorsement "there is no sufficientfunds in the account of the drawer of the cheque". Ex P1 isthe impugned cheque. Exs P2 and P3 are the returned memo andcredit advice of the bank respectively. The complainant hadinformed about the dishonour of the cheque to the accused on28.8.1997 under the original of Ex P4 notice. The said noticewas received by the accused under Ex P5 acknowledgment. Ex P7is the letter written by the father of the accused informingthat the accused is ready to settle the matter outside theCourt. Ex P8 is another notice issued by the complainant tothe accused.3b. P.W.2 is the Manager in State Bank of India,Tondiarpet Branch. He would admit that Ex P1 impugned chequewas presented for collection, but the same was dishonoured on5.4.1997 and also on 17.8.1997. P.W.3 is the AssistantManager of Indian Overseas Bank, K.K.Nagar Branch in which theaccused is having his account. He would admit that Ex P1impugned cheque was dishonoured by the bank on the ground thatthere was no sufficient fund in the account of the accused. ExP3 is the returned memo sent along with Ex P1 impugned cheque.4. . When incriminating circumstances were put to theaccused under Section 313 Cr.P.C., he has denied hiscomplicity with the crime. The accused has examined himselfas D.W1. and exhibited Exs D1 to D6. 5.After going through the evidence both oral anddocumentary let in before her, the learned trial Judge hasheld that an offence under Section 138 of the Act has beenproved beyond any reasonable doubt against the accused andaccordingly convicted the accused under Section 138 of theAct and sentenced him to undergo six months rigorousimprisonment and a fine of Rs.5,000/- with default sentence.Aggrieved by the findings of the learned trial Judge, theaccused has preferred an appeal before IV Additional SessionsJudge, City Civil Court, Chennai in C.A.No.238 of 1999. Thelearned Sessions Judge, after meticulously going through thematerial records available and after hearing the learnedcounsel appearing for the appellant as well as the respondenthas held that the findings of the learned trial Judge is to beinterfered with and accordingly allowed the appeal therebysetting aside the judgment of the learned trial Judge in https://hcservices.ecourts.gov.in/hcservices/ C.A.No.238 of 1999 which necessitated the complainant toprefer this appeal. 6. The point for determination in this appeal is whetherthe findings of the learned Sessions Judge in C.A.No.238 of1999 on the file of the IV Additional Sessions Judge, CityCivil Court, Chennai is perverse in nature to warrant anyinterference from this Court?7. Heard Mr. T.P.Kathiravan, learned Counsel appearingfor the appellant and Mr.K.Kannan, learned counsel appearingfor the respondent and carefully considered their rivalsubmissions.8. The Point:The first appellate Judge has acquitted the accused on twogrounds. Mainly in Ex P1 impugned cheque only the amount andthe signature were endorsed by the accused and admittedly thedate and name of the payee were written by P.W.1 himself.Further in Ex P13 reply notice itself, the accused had statedunder what circumstances,Ex P1` cheque was handed over toP.W.1 He would deny in Ex P13 reply notice for having receivedany consideration under Ex P1 impugned cheque. According tohim, the complainant was appointed by the accused as a Managerof the Mineral water Company in the name and style of M/sMithra Purified Water (P) Limited having its office at doorNo.38,Kumbalamman Koil Street, Tondiarpet, Chennai-81 and atthat time one undated and unnamed cheque and promissory notefor a sum of Rs.50,000/- were signed and handed over by theaccused to P.W.1 with an instruction, when ever necessityarises and also after informing the accused, the complainantcan use the said cheque to borrow a sum of Rs.50,000/- fromthe third person for investing the same in the water treatmentplant for the purchase of 12 litre cane and that the saidcheque was not utilized by the complainant till the end ofDecember 1996. It is the case of the accused that afterDecember 1996, the complainant and the accused were not incordial terms and that a civil case and criminal complaintwere lodged between them. He( accused) has specifically statedin the reply notice Ex P13 that he had informed P.W.1 toreturn the undated and unnamed cheque to him and not to usethe same. He has also made a request to the counsel to whomEx P13 was addressed to instruct his client viz., P.W.1 , thecomplainant to return the unnamed and undated cheque which washanded over by him in December 1996. For the Ex P13 notice,there is no rejoinder notice sent by the complainant. P.W.1,as observed by the learned first appellate Judge , hasadmitted in the cross examination that both the name as wellas the date in Ex P1 impugned cheque were filled up by him . https://hcservices.ecourts.gov.in/hcservices/ Under such circumstances, it cannot be said that theingredients stated under Section 138 of the Act is attractedto warrant conviction against the accused as rightly held bythe learned Sessions Judge in C.A.No.238 of 1999. Hence, I donot find any perverseness in the findings of the learnedfirst appellate Judge to interfere with the same. The point isanswered accordingly. 9. In fine, the appeal is dismissed confirming theJudgment in C.A.No 238 of 1999 on the file of IV AdditionalSessions Judge, City Civil Court, Chennai. Consequently,connected Crl.M.P.Nos.5614 of 2002 and 356 of 2007 are alsodismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsgTo1. The XV Metropolitan Magistrate, George Town, Chennai2. -do- through the Chief Metropolitan Magistrate, Egmore,Chennai3. The IV Additional Sessions Judge, City Civil Court, Chennai4. The Principal Sessions Judge, City Civil Court, Chennai.5.The Public Prosecutor, Madras.+1cc to Mr.T.P.Kathiravan, Advocate Sr 42170+1cc to Mr.K.Kannan, Advocate Sr 42321VC(CO)km/20.7.Crl.A.No. 149/2001