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2007 Supreme(Mad) 1006
Before the Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE P. MURGESEN
Sayadu Beedi Company
Versus
Thirumalai Subbu @ Thirumalai
Criminal Appeal No.417 of 2002
Decided On : 21-03-2007
For the Appellant :Ajmal Khan, Advocate.
For the Respondent:K. Jegannathan, Advocate.
Cheque can be issued for discharge of another mans debt or liability.
Headnote:NEGOTIABLE INSTRUMENTS ACT, 1882 - SECTION 138 - Father of accused issuing cheque in favour of company, towards adjustment of misappropriated amount by his son, an employee of the company - Complaint filed against accused after notice and consequent dishonour of cheque - Accused held guilty by Magistrate and acquitted on appeal - On appeal by complainant to High Court, contending that respondent raised plea as to date of cheque and the opportunity was not given to raise plea of liability - Plea rejected - HELD, Cheque was issued only after undertaking of liability to pay debt. - Expiry of cheque date how ascertained - Contention that 6 months’ period was to be calculated from date on the face of the cheque and not from earlier date or actually giving the cheque by drawer - Post-dated cheque drawn on 22-04-1993, was payable as on 22-10-1994 - Period of 6 months to be reckoned from date mentioned on the face of cheque -- Ratio in 2001 (3) SCC 726 followed - Appeal by complainant allowed.
FACTS : P, an accountant of complainant’s company misappropriated the Company’s funds to the tune of Rs. 3,12,072/- for which enquiry was conducted by the company. ’P’ admitted the misappropriation. He along with his father(respondent) gave undertaking (Ex.P9) to repay the said amount and respondent p had categorically admitted therein, the offence committed by his son and issued a cheque for Rs.40,000/- dated 22-10-1994 on presentation of the same to his bank the complainant receive intimation (ExP3) that cheque was returned for "insufficient funds". Notice of demand was sent which was received by respondent 9 Ex.P6).No reply was sent by respondent. But in the letter (Ex.p8) he made a request not present the cheque for collection, the Complaint was lodged by the company (appellant) authority one ’S’ his accountant, within one month from date of expiry of 15 days grace time given under notice. (Paras 1, 3 & 10).
The learned Magistrate sentenced the accuse for 3 months R.I. and fine of Rs. 5,000/-. The Appeal preferred before the additional sessions Judge was allowed and accused was acquitted. The Complainant filed Civil appeal in High Court. ( Para 5 & 6 )
HELD : A perusal of the Judgement would show that before the first appellate court, the respondent accused raised the plea only regarding the date of cheque and the same was allowed. The Respondent has not raised any other plea. Hence the respondent cannot say that he was not given any opportunity to raise the plea of liability in the first appellate Court. (Para 13)
If the case on hand is analysed in the light of several decisions, it is clear that the father of Palani Andavar undertook to pay the liability to pay the debt and issued a cheque. But the cheque was returned by the Banker. So there is liability as per Section 138 N.I. Act. Hence, the contention of the learned counsel for the respondent that there is no liability is not acceptable. (Para 18)
Learned Counsel argued that Six Months period has to be calculated from the date mentioned on the face of cheque and not from any earlier date when drawer actually gave cheque to drawee. (Para 20).
In the present case, post-date cheque dated 22-10-1994 was drawn on 22-04-1993 and the cheque becomes payable only on 22-10-1994. The period of six months has to be reckoned form the date mentioned on the face of the cheque. So, as per the decision of the Hon’ble Supreme Court in 2001 (3) SCC 726 the cheque was presented in time. Hence, the finding of the lower appellate court is not correct and the same is liable to be set aside. (Para 20 & 21)
This Appeal has been filed by the complainant against the Judgment dated 23.07.1997 made in C.A.No.29 of 1996 of the learned I Additional Sessions Judge, Tirunelveli reversing the judgment dated 19.03.1996 made in C.C.No.35 of 1995 by the learned Judicial Magistrate No.V, Tirunelveli.
2. Thecomplainants case is briefly as follows:
i)The complainant is doing Beedi Wholesale business and having its registered office at No.4G, /salai Street, Sindupoondurai, Tirunelveli. the son of the accused Palani Andavar was working as an accountant in the complainants sales Depot at Madras. During his tenure, he misappropriated the companys money to the tune of Rs.3,12,072/- Palani Andavar admitted his criminal act during the enquiry conducted by the company and the said Palani Andavar and the accused gave an undertaking in writing to repay the amount to the company.
ii) As a part settlement, the accused issued a cheque bearing No.SCBL 0199200 dated 22.10.1994 for a sum of Rs.40,000/- drawn at Canara Bank in favour of the complainant for the criminal acts committed by his son Palani Andavar. When the complainant presented the said cheque on 18.11.1994 it was returned as unpaid on 28.11.1004 due to insufficiency of funds. Hence, the complainant, within 15 days from the date of receipt of information from the bank regarding the return of the cheque, sent notices to both the accused and his son through his lawyer by RPAD and also under Certificate of posting, calling upon them to pay the amount within 15 days from the date of receipt of notice. There was no response for the said notice. Since the accused had issued the cheque knowing well of the consequences thereof, he has committed an offence under Section 138 of Negotiable Instruments Act and 420 I.P.C. and he has filed a complaint within one month from the date of expiry of 15 days grace time given under the notice. The accused must be punished with maximum sentence.
3. When the respondent was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the complainant, the accused has come forward with the version of total denial and he has stated that he has been falsely implicated in this case.
4. Before the trial Court, P.Ws 1 and 2 were examined. Exs.P.1 to P.10 were marked.
5. On consideration of evidence on record, learned Judicial Magistrate found the accused guilty for the offence under Section 138 N.I Act and sentenced him to undergo R.I. for three months and to pay a fine of Rs.5,000/- in default to undergo S.I. for a period of one months.
6. Aggrieved by the said judgment, the accused preferred an appeal in C.A.No.29 of 1996 before the I Additional Sessions Judge, Tirunelveli, who reversed the judgment of the trial Judge and allowed the appeal acquitting the accused.
7. Challenging the said appellate Court judgment, the complainant has filed the present appeal.
8. The point for determination is Whether the appeal is maintainable?
9. The Point: The appellant is the complainant. The respondent/accused is the father of Palani Andavar who had misappropriated the amount while he was working as Accountant in the complainants Beedi company.
10. Palani Andavar, the Accountant of the complainants Beedi company has misappropriated the money of the company to the tune of Rs.3, 12, 072/-for which an enquiry was conducted by the company and Palani Andavar has admitted that he had misappropriated the above said amount. He and his father, the respondent herein gave an undertaking Ex.P.9, on 22.4.1993 to repay the amount due tot he company. In that undertaking, the respondent has categorically admitted the offence committed by his son and agreed to repay the amount and also issued a cheque Ex.P.1 for a sum of Rs.40,000/- dated 22.10.1994 drawn at Canara Bank, Kombai, Madurai District. When the cheque was presented through Indian Bank on 18.11.1994 for collection under Ex.P.2, the complainant had received in
