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2017 Supreme(Mad) 4099
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, J.
A.N. Chandru - Appellant
Versus
K. Jayasankar - Respondent
Criminal Appeal No.550 of 2013
Decided on : 30-11-2017
Advocate Appeared:
For the Appellant : Ms. Usha Ramman
For the Respondent: Mr. T.K. Kulasekaran
Headnote:
Negotiable Instruments Act, 1881 - Section 138 and 147 – Criminal Porcedure Code, 1973 - Section 313 , 311 and 357(3) - Evidence Act - Section 114 - Promissory note - Cheque dishonoured - Seeking to set aside the judgment - Accused borrowed a sum and executed a promissory note (Ex.P.1) agreeing to repay amount on demand with interest at 24% per annum - Towards discharge of the said liability, accused issued the impugned cheque (Ex.P.2) bearing no. dated drawn on Indian Bank, Branch, for a sum - On complainant presented cheque in his account held with Canara Bank, Branch and same was dishonoured for insufficiency of funds vide cheque return memo dated - On side of accused, he was questioned about substance of accusation which he denied - In order to prove his case, complainant examined himself as P.W.1 and filed proof affidavit dated before Judicial Magistrate No.II- accused did not choose to cross-examine complainant - Thereafter, accused filed an application for cross-examining complainant, which was allowed by Trial Court, pursuant to which, complainant was cross-examined – Held, order of acquittal passed by First Appellate Court on ground that statutory notice (Ex.P.5) was not properly served on accused, is unsustainable - From accused, an advocate by profession, has been protracting this prosecution, as could be seen from dates and events catalogued in paragraph no.4 above - Whenever news of an Advocate getting involved in an offence appears in public domain, Court squirm and shudder inside and slip into bouts of depression and despondency at sorry state of affairs, because, it was this noble profession that has catapulted me to this exalted position under Constitution of India - Every such episode would bring down esteem of Bar in eyes of public and that would also have a cascading effect on Bench - Before trial Court, learned Magistrate may compound offence in terms of Section 147 of NI Act and disburse sum to complainant, if he is alive, or otherwise, to his legal heirs - Court has devised this mechanism only to give an opportunity to accused to avoid ignominy of serving the sentence of imprisonment - It is made clear that there shall not be any further extension of time - In event of accused not depositing amount of Rs.1.75 lakhs on or before trial Court shall take steps to secure him and commit him to prison - appeal preferred by the complainant is allowed
1. This Criminal Appeal has been filed seeking to set aside the judgment dated 20.02.2013 passed by the II Additional District and Sessions Court, Ranipet in Crl.A. No.45 of 2011 against the judgment dated 10.02.2011 passed in C.C.No.108 of 2010 on the file of the Additional District Munsif-cum-Judicial Magistrate Court No.I, Walajahpet.
2 For the sake of convenience, the appellant and the respondent will be referred to as the complainant and the accused respectively.
3 A vignette of the case of the complainant is as under:
3.1 The accused borrowed a sum of Rs.50,000/- on 15.06.2005 and executed a promissory note (Ex.P.1) agreeing to repay the amount on demand with interest at 24% per annum. Towards the discharge of the said liability, the accused issued the impugned cheque (Ex.P.2) bearing no. 097337 dated 15.04.2006 drawn on Indian Bank, Ammoor Branch, for a sum of Rs.60,000/-. On 17.04.2006, the complainant presented the cheque in his account held with Canara Bank, Ranipet Branch and the same was dishonoured for insufficiency of funds vide cheque return memo dated 21.04.2006 (Ex.P.3).
3.2 The complainant issued a statutory notice (Ex.P.5) dated 05.05.2006 under Section 138 of the Negotiable Instruments Act, 1881 (for brevity the NI Act ) to the accused. Since the accused was a junior lawyer in the local Bar and was a junior under one Senthamarai, Advocate, the statutory notice was sent by Registered Post with Acknowledgment Due as well under Certificate of Posting.
3.3 The notice under Certificate of Posting was sent to the residential address of the accused, viz., 60/53, Sitarama Iyer Street, Arcot and the notice under Registered Post with Acknowledgment Due was sent to K.Jayasankar, S/o late Krishnamoorthy Rao, Advocate, C/o R. Senthamarai, Advocate, 13/4, Jayarama Chetty Street, Vellore.
3.4 The notice that was sent by Registered Post with Acknowledgment Due was received by R. Senthamarai, Advocate on 22.05.2006, as could be seen from the acknowledgment (Ex.P.6). The Certificate of Posting was marked as Ex.P.7.
3.5 The accused neither replied to any of the notices nor repaid the amount towards the impugned cheque and therefore, the complainant initiated a prosecution under Section 138 of the NI Act against the accused in C.C.No.161 of 2006 before the Judicial Magistrate No.II, Wallajapet.
4 On the side of the accused, he was questioned about the substance of accusation which he denied. In order to prove his case, the complainant examined himself as P.W.1 and filed proof affidavit dated 23.08.2006 before the Judicial Magistrate No.II, Wallajapet. The accused did not choose to cross-examine the complainant. Therefore, the complainant's side evidence was closed and the accused was questioned under Section 313 Cr.P.C. on 31.08.2006 about the incriminating circumstances appearing against him in the evidence adduced by the complainant. In his examination under Section 313 Cr.P.C., the accused completely denied the allegations of the complainant and further stated that he had not issued the impugned cheque at all. Thereafter, the accused filed an application under Section 311 Cr.P.C. for cross-examining the complainant, which was allowed by the Trial Court, pursuant to which, the complainant was cross-examined on 05.02.2007. Then, the case did not have any progress and it was transferred to the file of the District Munsif-cum-Judicial Magistrate No.I, Wallajapet and was re-numbered as C.C. No.108 of 2010. Once again, the accused filed an application under Section 311 Cr.P.C. to recall P.W.1, which was allowed by the Magistrate, pursuant to which, on 06.12.2010, the complainant was once again cross-examined by the accused. Then, the accused examined himself as D.W.1 on 06.12.2010, in which, he admitted that he had issued the impugned cheque, but, had stated that he had given it only as a security, to the complainant and
