IMPORTANT POINT
Civil remedy and complaint under Section 138, N.I. Act can proceed together.

R. Mala, J.—The Crl. R.C. is filed against the judgment, dated 16.9.2005 in Crl. A.No.192 of 2005 on the file of the Additional District Court (Fast Track Court No.1), Coimbatore, confirming the conviction of Al and A2 and setting aside the conviction and sentence of A3 and reducing the sentence of A2 from six months simple imprisonment to two months’ simple imprisonment, and confirming the fine amounts, imposed by the Judicial Magistrate’s Court No.5, Coimbatore in C.C.No.150 of 2004, dated 28.4.2005.

2. The case of the respondent/complainant/Bank is as follows:

A1 is a Company. A2 is the Managing Partner of A1 Company. A3 is another Partner of A1 Company. They have availed loan from the respondent/complainant/Bank and agreed to repay the same with 16.5% interest and since they are due of Rs.36,33,244.45, as on 1.11.2003, the complainant made a demand of repayment of money; on behalf of A1 Company, A2 has given a cheque for Rs.12,00,000, which was presented before the Bank, and returned as “Account Closed” and hence, statutory notice has been issued and after receipt of the statutory notice, the accused neither repaid the amount nor given reply and hence, the private complaint under Section 138 of the Negotiable Instruments Act, was filed.

3. The trial Court, after following the procedures, furnished a copy of the complaint to the accused, and since they pleaded not guilty, the trial Court examined PW1 and marked Exs.P1 to P8 and found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced them. A1 was directed to pay a fine of Rs.1,000. A2 was convicted and sentenced to undergo six months simple imprisonment and to pay a fine of Rs.4,000, in default, to undergo one month simple imprisonment and A3 was convicted and sentenced to undergo three months’ simple imprisonment and to pay a fine of Rs.3,000, in default, to undergo one month simple imprisonment.

4. Challenging the judgment of conviction and sentence passed by the trial Court, the accused preferred appeal and the first appellate Court, after hearing the arguments of both sides, acquitted A3 of the charge and reduced the sentence imposed on A2 from six months to two months’ simple imprisonment and confirmed the fine amounts imposed on A1 and A2. Challenging the same, the present Crl.R.C. is filed by A1 and A2.

5. Learned counsel appearing for the revision petitioners/A1 and A2 submitted that there is no proof for subsisting ‘liability on the date of issuance of Ex.P1 cheque and hence, Section 138 of the Negotiable Instruments Act will not get attracted. Even though PW1 has admitted that there is notice of demand issued, which was not marked, the statement of accounts has also not been marked and the Chief Manager of the Bank from whom the cheque was issued, was not examined. Learned counsel further submitted that the cheque was issued only as a security and not for discharging the loan of subsisting liability and hence, he prayed for setting aside the conviction and sentence passed by the appellate Court.

6. Repudiating the said contentions, learned counsel for the respondent/ complainant/Bank submitted that A1 is a Company and A2 and A3 are the partners of A1 Company. A2 is the Authorised Signatory of A1 Company and the accused have availed the facilities from the Bank and the amount due is Rs.36,33,244.45 as on 1.11.2003 and when they demanded, the cheque for Rs.12,00,000 was issued, which was returned by the Bank. He further submitted that the statutory notice Ex.P3 has been issued and the accused have received ‘he same under Exs.P5 and P6 acknowledgement cards. The notice was also issued under Certificate of Posting as evidenced by Ex.P7 and even then, the accused neither replied, nor paid the amount and hence, the ingredients of Section 138 of the Negotiable Instruments Act, have been made out. Both the Courts below considered these aspects in proper perspective and convicted A1 and A2 for the offence und