IMPORTANT POINT
Legally enforceable liability in terms of Section 138 of Act 1881, need not necessarily be legally enforceable liability of drawer of cheque.

S. Nagamuthu, J.—This is an appeal against acquittal. The appellant is the complainant in C.C.No. 125 of 2001 and the respondents are the accused. It was a case instituted on a private complaint alleging that the respondents had committed offence under Section 138 of the Negotiable Instruments Act. The learned Judicial Magistrate No.1, Udumalpet by judgment dated 19.11.2003, acquitted all the respondents. Challenging the said acquittal, the appellant is before this Court with this appeal.

2. The facts of the case in brief would be as follows:

The first respondent is a company of which, the respondents 2 and 3 are the partners. The respondents 2 and 3 were earlier known to the appellant. On 24.7.2000, according to the complainant, the respondents 2 and 3 on behalf of the first respondent approached him and requested for a loan of Rs.3,00,000. They assured that they will return the amount within 10 days. The appellant accordingly, paid a sum of Rs.3,00,000 on 1.8.2000 as loan to the respondents. While receiving the amount, in order to ensure repayment, a cheque for a sum of Rs.3,00,000 dated 11.8.2000 drawn on Karur Vysya Bank Ltd., Tiruppur Branch bearing No.298853 was issued to the appellant. The said cheque was signed by the third respondent Mr. R. Balaji, as the partner of the first respondent company namely M/s Delta Knit Wearables and as assured by the respondents, the said amount was not repaid within 10 days. Thereafter, the cheque was presented for collection in the account of the appellant and on the same being forwarded to the Karur Vysys Bank Ltd., the cheque was dishonoured by the said Bank on 14.8.2000 on the ground that there was “insufficient fund” in the account of the first respondent company.

3. Thereafter, the appellant issued a statutory notice as required under Section 138 of the Negotiable Instruments Act, to all the three respondents. The respondents 1 and 3 received the notice and acknowledged the same. But the second respondent did not receive the notice and the said notice sent by registered post was returned to the complainant with the endorsement by the postal authorities as “not claimed.” Since the said notice was not complied with, the abovesaid private complaint was preferred by the complainant. It is significant to note that the respondents 1 and 3 did not even sent any reply to the said notice.

4. Before the trial Court, all the three respondents took a defence that there was no legally enforceable liability on their part to issue the cheque. They also took a defence that the third respondent had money transaction with one Mr. Chellappan who is the brother of the complainant. Such money transaction between Chellappan and the third respondent commenced in the year 1995. In respect of one such transaction, the third respondent gave certain pro notes and cheques to Mr. Chellappan in the year 1995. One of the such cheque is pressed into service in this case. According to the specific case, it is not a filled up cheque and it was only a blank cheque but signed by the third respondent.

5. Lastly, in the year 1998, the third respondent had borrowed loan from Mr. Chellappan and the same was also settled in the year 2000. On 18.5.2000, Mr. Chellappan approached the third respondent and told that as against the loan transactions, interest for three months was still pending from the third respondent. But the cheque in question was not returned by Chellappan to the accused. In this regard a complaint was preferred by the third respondent to Anuparpalayam Police Station on 19.5.2000. It is their further contention that after the issuance of the statutory notice, when he approached the Chellappan he in turn assured that he would return the cheque. On such assurance, there was no reply sent for the statutory notice. However, the said case ended in acquittal.

6. But, in view of the above vengeance, the said Chellappan has instituted the present complaint through his brother namely, the appellant herein