K.Chinnasamy v. C.Duraisamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 26-04-2007CORAMTHE HONOURABLE MR.JUSTICE S.TAMILVANANCrl.R.C.No. 1415 of 2001K.Chinnasamy ... PetitionerAppellant/Accused-vs-C.Duraisamy ... RespondentRespondent/ComplainantCriminal Revision filed under Section 397 r/w 401 Cr.P.C, against thejudgment, dated 06.08.2001, made in C.A.No.86 of 2001 on the file of theII Additional Sessions Judge, Erode, confirming the conviction made in thejudgment, dated 24.04.2001 in C.C.No.254 of 1998 on the file of theJudicial Magistrate No.III, Erode.For petitioner : Mr.V.KrishnamoorthyFor respondent : Mr.N.ManokaranO R D E RThis Criminal Revision Petition is directed against the judgment,rendered in C.A.No.86 of 2001 on the file of the II Additional SessionsJudge, Erode, confirming the conviction and sentence, imposed inC.C.No.254 of 1998 on the file of the Judicial Magistrate No.III, Erode.2. The brief facts of the case are as follows :The case in C.C.No.254 of 1998 on the file of the learnedJudicial Magistrate No.III, Erode was taken on file on the complaint givenby the respondent / complainant, under Section 138 r/w 142 of NegotiableInstruments Act. As per the complaint, the revision petitioner / accused,had received a sum of Rs.1,00,000/- from the respondent / complainant on02.01.1998 and issued a post dated cheque, dated 02.04.1998 of Karur VysyaBank, Erode Branch, the same was sent by the respondent / complainant, forcollection through Indian Overseas Bank, Erode Branch, but was dishonouredand returned with the note "insufficient funds". In support of hiscontention, the respondent / complainant examined himself as P.W.1, apart https://hcservices.ecourts.gov.in/hcservices/ from examining the officer of the Karur Vysya Bank, Erode Branch as P.W.2and marking documents Ex.P.1 to P.8. No witness was examined and nodocuments were marked on the side of the revision petitioner / accused.The dishonoured cheque issued by the respondent / complainant was markedas Ex.P.1, along with the written memo sent by the Karur Vysya Bank,whereby it was intimated that no sufficient funds available in theaccount. Subsequent to the dishonour, the respondent / complainant issuedlegal notice, Ex.P.4 and the postal receipt has been marked as Ex.P.5.Then, the respondent / complainant filed the complaint under Section 138r/w 142 of Negotiable Instruments Act.3. Considering the oral and documentary evidence, the trial court hasheld that the charges levelled against the revision petitioner / accusedhas been proved beyond reasonable doubt and accordingly, convicted himunder Section 138 of Negotiable Instruments Act and imposed six monthssimple imprisonment and a fine of Rs.1,000/- with default sentence.Against which appeal was preferred in C.A.No.86 of 2001 on the file of theII Additional Sessions Judge, Erode, The appellate court, considering theevidence available on records and the arguments advanced by both sides,has confirmed the conviction and sentence and dismissed the appeal.Aggrieved by which, this Criminal Revision has been preferred by therevision petitioner / accused. 4. According to the learned counsel for the revisionpetitioner / accused, notice was not served on him, as contemplated underSection 138 of Negotiable Instruments Act and further contended that thepetitioner herein had filed Insolvency Petition in I.D.No.14/98, that wasnot considered by the court below.5. Learned counsel appearing for the revision petitioner / accusedwould contend that there was no proper service of legal notice, ascontemplated under Section 138 of Negotiable Instruments Act. Before thetrial court, it is seen that no such defence was raised by the revisionpetitioner / accused, even by way of suggestion to the prosecutionwitnesses. It is seen from the findings of the courts below that therespondent / complainant has established that the cheque was issued by therevision petitioner herein, which was dishonoured due to insufficientfunds in the account. 6. According to P.W.2, the dishonoured cheque, Ex.P.1 was drawn onKarur Vysya Bank, Erode Branch. He has clearly stated that the signaturein the cheque is signature of the account holder, who is none other thanthe revision petitioner herein and due to insufficient funds, it wasreturned by the memo, Ex.P.2. The courts below have also held as perSection 72 of Indian Evidence Act, that the cheque has been issued only bythe revision petitioner / accused. Further, the revision petitioner hasnot disputed genuineness of the cheque by adducing any oral evidence. Therespondent / complainant had sent the cheque for collection through IndianOverseas Bank, Erode branch, and due to the dishonour of the cheque, the https://hcservices.ecourts.gov.in/hcservices/ said bank has sent Ex.P.3, debit advice to the respondent / complainant.Subsequently, the respondent / complainant issued legal notice, Ex.P.4.The postal receipt and the returned unserved registered letter sent to thepetitioner were also marked as Ex.P.5 and Ex.P.6 respectively. As per theendorsement available in the postal cover, it is seen that the same wassent to the correct address of the revision petitioner / accused and thesame is not in dispute. As per the findings of the court below, therevision petitioner has evaded the service, hence, it was returned.7. In the decision, D.Vinod Shivappa, vs. Nanda Belliappa, reportedin 2006 (3) CTC 591, the Hon'ble Supreme Court has held that Section 138of Negotiable Instruments Act was enacted to punish unscrupulous persons,who issued cheque in purported discharge of liability without reallyintending to do so. The said section has certain inbuilt safeguards toprotect the honest drawer, who fails to honour the cheque issued by him,by providing opportunity to make payment within the time prescribed fromthe receipt of statutory notice. Such safeguard is made available underProviso to Section 138, but the proviso is meant only for honest drawerand not to protect the unscrupulous drawers.8. In the instant case, it has been established that the cheque wasissued by the revision petitioner / accused, which was dishonoured by thebank, due to insufficient funds. Subsequently, the respondent /complainant issued legal notice, but as found by the courts below, therevision petitioner has evaded service of notice, and without raising anydefence with regard to service of notice before the trial court, he hasraised the defence in the revision that notice was not served, ascontemplated under the proviso of Section 138 of Negotiable InstrumentsAct. As held by the Hon'ble Supreme Court, the said proviso is meant forhonest drawer and not to protect the unscrupulous drawers.9. In the instant case, I could see that there is no manifest errorof law or perverse finding, leading to injustice or miscarriage ofjustice, so as to warrant the interference of this Court. I could find noerror or infirmity in the conviction and sentence imposed by the courtsbelow and hence, this Criminal Revision Petition fails and the same isliable to be dismissed.10. In the result, this Criminal Revision Petition is dismissed. tsvnSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The II Additional Sessions Judge, Erode.2. The Judicial Magistrate No.III, Erode. 3. -do- thro the Chief Judicial Magistrate, Erode.+ One cc to Mr. N. Manokaran, Advocate SR 29105BV (co)sg 7/6/07 Crl.R.C.No.1415 of 2001