Subburam @ Subramanian v. Muthudaiyar

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED 18.04.2012CORAMTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYCRL.A(MD)No.186 of 2011Subburam @ Subramanian .. Appellant/Complainant VsMuthudaiyar .. Respondent/AccusedPrayer: Criminal Appeal filed under Section 378 of Cr.P.C. praying thisCourt to set aside the order, dated 01.03.2011 passed in C.A.No.191/2010on the file of the Additional Sessions Court/Fast Track Court No.II,Tirunelveli reversing the order, dated 16.11.2010 in S.T.C.No.1450 of2006 on the file of the Judicial Magistrate Court No.I, Tirunelveli. For Appellant :Mr.S.Rajeshkanna for Mr.M.Vallinayagam For Respondent :Mr.K.Prabhakaran for Mr.S.Palanivelayutham J U D G M E N TThis Criminal Appeal is filed by the appellant/ complainant, againstthe order, dated 01.03.2011 passed in C.A.No.191/2010, on the file of theAdditional Sessions Court/Fast Track Court No.II, Tirunelveli inreversing the order, dated 16.11.2010 in S.T.C.No.1450 of 2006, on thefile of the Judicial Magistrate Court No.I, Tirunelveli. 2. The brief facts of the case leading to the file of the appeal arethat the respondent/accused has received a sum of Rs.3,00,000/- for hisdomestic purpose and he issued a cheque for a sum of Rs.3,00,000/-, dated10.08.2005, which is marked as Ex.P.1 and when it was presented forcollection,it was informed by the Bank that the said account has beenclosed. Thereafter statutory notice has been given and Ex.P.4 reply wasalso issued, thereafter, the appellant has presented a complaint beforethe Magistrate Court on 24.03.2006, thereafter he issued an amendednotice on 08.04.2006 which was also returned as Ex.P.8. 3. Thereafter, the learned Judicial Magistrate, taking cognizance ofthe offence, has taken the complaint on his file in S.T.C.No.1450 of2006 and summons have been issued to the accused.4. On the side of the appellant/complainant, P.Ws.1 and 2 wereexamined and Exs.P1 to P.10 have been marked.5. After appreciation of the oral and documentary evidence, thetrial Court has convicted the appellant herein and sentenced him for theoffence punishable under Section 138 of Negotiable Instruments Act toundergo for six months simple imprisonment and to pay fine of Rs.3,000/-,in default to undergo three months simple imprisonment and also to pay acompensation of Rs.3,00,000/- towards the cheque amount. https://hcservices.ecourts.gov.in/hcservices/

26. Against which, the appeal has been filed in C.A.No.191 of 2010,before the Additional Sessions Court, Fast Track Court No.2, Tirunelveliand the lower appellate Court has set aside the order of conviction andsentence passed by the trial Court and reversing the case to the trialCourt.7. Against which, the present Criminal Appeal has been filed by theappellant/complainant. 8. The vehement contention of the learned counsel for theappellant/complainant is that the first appellate court has set aside theconviction only on the two grounds namely, he changed the name and alsoon the basis of the plea of the limitation. Hence, he prayed that theappeal has to be allowed.9.The learned counsel for the respondent/accused submitted thatnotice has been issued under Ex.P.3 on behalf of one Subramanian, whereasthe cheque is in favour of one Subburam. Therefore, both persons aredifferent persons and on that basis the first appellate court hasappreciated the facts and allowed the appeal. Hence, he prayed that theappeal has to be dismissed. 10. Heard the learned Counsel for both sides and perused thematerials available on record.11. From the perusal of the records, it is seen that the cheque hasbeen issued in the name of one Subburam. P.W.2 is the Manager of theComplainant's Bank. In his evidence, he would state that the name of theaccount holder as per the bank records is Subburam. But the notice hasbeen issued only in the name of Subramanian and after the presentation ofthe complaint, the subsequent notice is also sent by the complainantunder Ex.P.7. The complaint has been filed before the trial Court on24.03.2006 and it was returned on 05.04.2006 and the trial Court haspointed out the mistake as the notice has been issued in the name ofSubburam and the complainant is the Subburam, whereas notice has beenissued only by Subramanian. Thereafter, it has been corrected. Evenprior to that, the account of the accused has been closed. From theperusal of the records, it is very clear that the cheque has been issuedby the accused in favour of Subburam, who is the account-holder, as perthe evidence of P.W.2, and the cheque has been presented for collectiononly in the name of Subburam and notice alone has been issued in the nameof Subramanian and that has been clarified by Ex.A.7. Even though afterreceipt of Ex.A.1 notice, the respondent has sent a reply notice which ismarked as Ex.A.4. Even a reading of Ex.P.11, it is also clear thatSubburam's father is Iyappa Reddiar and there is surname for his name.Because of the technical error defected in surname, notice given in thename of Subbramani which was initially not adjudicated by the respondentwill not be a ground for dismissal of the complaint and the saidcontention made in this regard also is not correct.12. The learned Counsel for the respondent/accused contended that thepetition is barred by limitation. The learned Counsel for the revisionpetitioner/complainant contended that it is well within time. The firstAppellate Court has appreciated the limitation aspect only on the reasonthat the complaint has been presented on 12.05.2006, whereas from the https://hcservices.ecourts.gov.in/hcservices/ 3entire perusal of the records, it is seen that 24.03.2006 the date sealof the Court as well as the initial of the learned Judicial Magistratehas also find place. Therefore, under this juncture, I am of the viewthat the complaint is also not barred by limitation.13. Under such circumstances, the first Appellate court has passedan erroneous order. Hence, it has been set aside and judgment of theJudicial Magistrate No.I, Tirunelveli has to be confirmed and theCriminal Appeal deserves to be allowed.14. In the result, the Criminal Appeal is allowed and the order ofconviction and sentence made against the accused for the offencepunishable under Section 138 of Negotiable Instruments Act to undergo forsix months simple imprisonment and to pay fine of Rs.3,000/-, in defaultto undergo three months simple imprisonment and also to pay acompensation of Rs.3,00,000/- towards the cheque amount, on the file ofthe Judicial Magistrate Court No.I, Tirunelveli is confirmed. The learnedJudicial Magistrate is directed to secure the accused to undergo thesentence.Sd/-Assistant Registrar (AE)/ True Copy / Sub Assistant Registrar To1. The Additional Sessions Judge, Fast Track Court No.II, Tirunelveli 2. The Judicial Magistrate No.I, Tirunelveli.3. The Principal Sessions Judge, Tirunelveli.4. The Chief Judicial Magistrate, Tirunelveli.5. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy to The Section Officer, Criminal Section,Madurai Bench of Madras High Court, Madurai. Am/sslSR : 04.05.2012 : 3p/7cCRL.A(MD)No.186 of 201118.04.2012