THE HONOURABLE MR v. Sri Venkatachalapathi Tex

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 15.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.465 of 2001M.N.Thangaraj ..Appellant/Complainantvs.1. Sri Venkatachalapathi Tex rep. By its Partner V.S.Gopal2. V.S.Gopal3. S.Kandasamy4. T.Easwaran5. V.Devaraj ..Respondents/Accused This appeal has been preferred against the Judgment dated5.12.2000, in C.C.No.41 of 1998 on the file of JudicialMagistrate No.1, Erode.For Appellant : Mr.N.ManonkaranFor Respondents : Mr.B.Kumarasamy-R3 R1,R2,R4,R5 notice served No appearance. JUDGMENTThis appeal has been preferred against the judgment inC.C.No.41 of 1998 on the file of the Judicial MagistrateNo.1, Erode. On a private complaint under Section 200 ofCr.P.C., the accused was charged under Section 138 r/w 142 ofthe Negotiable Instruments Act, 1881.(herein after referredto as "the Act").2. After taking cognizance, the learned JudicialMagistrate has issued summons to the accused, on theirappearance copies under Section 207 of Cr.P.C. were furnishedto the accused and when offence was explained to them, theypleaded not guilty.3. On the side of the complainant, P.Ws 1 to 3 were https://hcservices.ecourts.gov.in/hcservices/ examined and Exs P1 to P10 were marked.4. The complainant has examined himself as P.W.1.According to him, on 20.5.1997, the accused had borrowedRs.1,00,000/- and had drawn a cheque dated 28.5.1997 infavour of him and that A4 had discounted the cheque Ex P1 infavour of him. According to him , all the accused haveapproached him with a request to present the cheque on27.10.1997, after making corrections in the date in Ex P1and when the cheque was presented on 29.10.97 for encashment,the same was dishonoured with an endorsement that the"account of drawer" was closed. Ex P2 is the cheque returnedmemo . Under the original of Ex P3, the complainant hadissued notice dated 12.11.1997 to all the accused. Ex P4 isthe returned cover from A2. The other accused have receivedthe notice. Ex P5 to Ex P7 are the acknowledgments. A3 alonehad replied under Ex P8,but he has not repaid the loan.4a. P.W.2 is the Senior Manager in Dhanalakshmi Bank.According to him, Ex P1 cheque was presented in his bank on29.10.1998 and that the same was forwarded to the Bank ofBaroda, wherein the drawer of the cheque was having accountbut the said cheque was returned with an endorsement thatthe account has been closed. Ex P9 is the statement ofaccount relating to the complainant's account.4b. P.W.3 is the Manager of the Bank of Baroda, ErodeBranch. According to him, Easwaran(A4) is having a currentaccount No.3714 with his bank. Ex P1 cheque was forwarded tothe Bank of Baroda, Erode Branch for collection throughDhanalakshmi Bank on 29.10.1998 but the said cheque wasreturned with an endorsement that the drawer of the chequewas not having sufficient fund in his account and as29.10.1998, the drawer of the cheque was having only a sum ofRs.2899/90ps in the credit of his account. Ex P2 is thereturned memo sent along with Ex P1 cheque. Ex P10 is thestatement of account for the accused.5. When the incriminating circumstances were put to theaccused, they deny their complicity with the crime. D.Ws.1 to5 were examined and Exs D1 to D4 were exhibited. 6. After scanning the evidence both oral and documentary,the learned Judicial Magistrate, Erode has come to aconclusion that the complainant has miserably failed to provethe guilt against the accused under Section 138 of the Actto warrant conviction and accordingly acquitted the accusedfrom the charges levelled against them, which necessitatedthe complainant to prefer this appeal. https://hcservices.ecourts.gov.in/hcservices/

7. Now the point for determination in this appeal iswhether the appellant is entitled to any relief under Section138 of the Act?8. Heard Mr.N.Manonkaran,learned counsel for theappellant and Mr.B.Kumarasamy, learned counsel for thirdrespondent and considered their rival submissions.9.The Point:It is the case of the complainant that Ex P1 impugned chequewas drawn by A2 Gopal as one of the Partners of the A1Company in favour of Easwaran(A4). According to thecomplainant, A4 viz., Easwaran had discounted Ex P1 cheque infavour of A5 on 10.5.1997 who in turn had discounted Ex P1cheque in favour of the complainant on 20.5.1997. But whiledeposing before the trial Court as P.W.1, the date ofdiscount of Ex P1 by A4 and A5 was not spoken to by P.W.1. Aperusal of Ex P1 cheque shows that A4 and A5 have onlysigned on the back of Ex P1 cheque and not even the date ofdiscount was mentioned below their respective signatures.There is no documents produced on the side of the complainantto show that A5 Devaraj is also having account in his name ina bank . 10. To warrant conviction under Section 138 of the Act, acheque is to be drawn by a person, who is having accountmaintained by him with a bank, should have drawn a cheque,which on presentation in the bank, should have beendishonoured on account of insufficient fund in the accountof the drawer. From the facts narrated by P.W.1 in thecomplaint, we could infer that cheque ExP1 was drawn by A2Gopal in favour of A4 Easwaran. So I am of the view that ifat all, any one is having cause of action to resort to aremedy under Section 138 of the Act that is Easwaran (A5)alone in whose favour the impugned cheque Ex P1 was drawn byGopal(A2).11. The learned counsel appearing for the appellantrelying on Sections 15 and 16 of the Act would contend thatboth Easwaran(A4) and Devaraj(A5) have made an endorsement onthe back of EX P1 cheque which gives cause of action to thecomplainant to file this complaint against all the accused.At this juncture, the learned counsel appearing for therespondent would contend that in the cross examination ofP.W.1, he has admitted that A3 is in no way connected with ExP1 cheque. Under such circumstances, I am of the view thatthe appellant is not empowered under law to proceed against https://hcservices.ecourts.gov.in/hcservices/ the accused under Section 138 of the Act.12.The learned counsel appearing for the appellantrelying on Sections 52 and 53 of the Act would contend thatas per the endorsement in the back of Ex P1 cheque, thecomplainant can proceed against all the accused. Thissubmission cannot be upheld because under Section 138 of theAct, only Easwaran (A4) alone can proceed against Gopal(A2)the drawer of the cheque in the absence of valid endorsementon the back of Ex P1 cheque. Even the date of endorsement ismissing below the signatures of the endorsees. 13. Under such circumstances, I do not find any reasonto interfere with the findings of the learned trial Judge inC.C.No.41 of 1998 on the file of the Judicial MagistrateNo.1, Erode. The point is answered accordingly.14. In the result, the appeal is dismissed confirming theJudgment in C.C.No.41 of 1998 on the file of JudicialMagistrate No.1, Erode.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsgTo1.The Judicial Magistrate-No1,Erode2. -do- the Chief Judicial Magistrate, Erode.+1cc to Mr.N.Manokaran, Advocate Sr 35242NTK (CO)km/22.6.Crl.A.No.465 of 2001