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2018 Supreme(Mad) 2595
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.PONGIAPPAN, J.
J.Vijayabaskar - Appellant
Versus
M.Dhasskand - Respondent
Crl.A.No.536 of 2009
Decided on : 25-06-2018
Advocate Appeared:
For the Appellant : Mr.V.V.Sairam
For the Respondent: Mr.K.Ramamoorthy
Headnote:
Negotiable Instruments Act, 1881 - Sections 138 and 139 – Banking - Admittedly respondent/accused is brother-in-law of appellant/complainant - Respondent had borrowed a sum from complainant - In order to discharge said loan he issued a cheque drawn on federal bank limited in favour of appellant - On same day appellant presented cheque for collection through bank but same was returned unpaid as account closed - Thereafter appellant issued a statutory notice in which he demanded respondent to pay cheque amount - Despite of receiving said notice accused neither paid cheque amount nor sent any reply - Thus appellant made a complaint before learned judicial magistrate by saying that respondent committed offence – Held, In this case also said defense taken by respondent is not substantiated as discussed above - Last contention raised by respondent is that appellant is not having any capacity to lend as loan for which appellant at time of giving evidence as PW1 clearly narrated as from income derived from cable TV business and due to pledge of sovereigns of gold ornaments and from amount lying in his savings account loan amount was paid to respondent - In this regard evidence given by PW1 is not denied by respondent - Moreover after receiving statutory notice in this case respondent had not issued any reply notice by stating entire defense taken in Trial Court - It is his duty to deny entire allegation at earliest point of time - But in this case nothing was disputed at earliest point only during time of trial defense raised as above and thereafter trial court has also misconstrued and acquitted accused which is nothing but erroneous - So order of acquittal passed by trial Judge is set aside and this Court came to conclusion that respondent is found guilty for offence - Appeal is allowed
This Criminal Appeal is directed against the judgment rendered by the learned Judicial Magistrate No.V, Salem in C.C.No.13 of 2008 dated 10.07.2009, wherein, the learned Magistrate acquitted the respondent for the offence under Section 138 of the Negotiable Instruments Act, against which, the appellant being the complainant in the said case has preferred this appeal to set aside the same as erroneous one.
2. The case of the appellant/complainant in nutshell, is as follows:
2.1. Admittedly, the respondent/accused is the brother-in-law of the appellant/complainant. On 03.09.2007, the respondent had borrowed a sum of Rs.5 lakhs from the complainant. In order to discharge the said loan, he issued a cheque dated 03.10.2007 drawn on Federal Bank Limited, Thiruppur, in favour of the appellant. On the same day, the appellant presented the cheque for collection through Canara Bank, Ammapettai, but the same was returned unpaid as account closed . Thereafter, on 31.10.2007, the appellant issued a statutory notice, in which, he demanded the respondent to pay the cheque amount within 15 days. Despite of receiving the said notice, the accused neither paid the cheque amount nor sent any reply. Thus, the appellant made a complaint before the learned Judicial Magistrate No.V, Salem by saying that the respondent committed the offence under Section 138 of the Negotiable Instruments Act.
2.2. In the Trial Court, the appellant had himself examined as P.W.1, the Bank Manager from Thiruppur Federal Bank Limited and the Manager of C.R.R. Auto situated in Thiruppur were examined as P.W.2 and P.W.3 respectively. Besides 10 documents were exhibited as Ex.P.1 to Ex.P.10. On the side of the defence, one Suresh, who was the Manager in Radhika C.M.R. Textiles and the respondent were examined as D.W.1 and D.W.2 respectively. Besides 14 documents were marked as Ex.D.1 to Ex.D.14. After considering the evidence let in by either side and after analysing the documents, which were exhibited by both sides, the learned Judicial Magistrate No.V, Salem came to the conclusion that the respondent had not found guilty for the offence under Section 138 of the Negotiable Instruments Act, thereby, being the complainant, the appellant preferred this appeal.
3. Today, when the appeal is taken up for hearing, Mr.V.V.Sriram, learned counsel appearing for the appellant and Mr.K.Ramamoorthy, learned counsel appearing for the respondent advanced their arguments in their favour.
4. Before discussing the merits and demerits of the case, the significant factor found in the evidence given by D.W.2 is he admitted in his cross-examination as the cheque pertaining to this case relates to his account. Further, he admits that the signature found in the cheque belongs to him. Since, the signature found in the cheque has admitted by the respondent naturally Section 139 of the Negotiable Instruments Act comes into play.
5. The first defence which was raised by the respondent is that the notice sent by the appellant is defective one, since at the time of issuing the statutory notice, he has not resided in Thiruppur. In this aspect, on going through the evidence given by the appellant in the Trial Court as P.W.1, he stated that as notice was issued to the official address as well as the residential address. Further, he stated that both the addresses are situated only in Thiruppur.
6. In this regard, the learned counsel appearing for the respondent would submit that at the time of issuing the notice, the respondent has not resided in Thiruppur, due to the business loss, he shifted his family to Salem. It is true on going through the acknowledgment signed by the respondent dated 01.11.2007, the address of the respondent was mentioned as Radhika G.M.R. Tex, 42/C Industrial Estate, Thiruppur 2. So, it is necessary to find out whether the respondent was working in the said address at the time of receiving the notice. In this regard, D.W.1 [Viswanathan] stated in his evidence that he was worki
