Issuing a cheque creates a presumption of liability under Section 138 of the Negotiable Instruments Act, unless the accused provides satisfactory evidence to counter such presumption.

COMMON ORDER

Challenging the conviction and sentence passed by the learned II Additional District and Sessions Judge, Salem, in C.A.Nos.92, 93 and 94 of 2016, dated 18.09.2017 confirming the conviction and sentence passed by the Judicial Magistrate No.5, Salem, in C.C.Nos.287, 288 and 289 of 2013, dated 14.09.2016, the present Criminal Revision cases are filed by the accused 1 and 2.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present criminal revisions would also be indicated.

3. The case of the respondent/complainant in a nutshell is as follows:

The complainant is a Partnership Firm. The complainant supplied electrical equipments to the tune of Rs.67,21,122.72/- to the accused/company on credit basis. According to the complainant, the accused paid only a sum of Rs.24,06,760/- and for the balance amount of Rs.43,14,362.72/- issued the following three cheques drawn on Bank of Maharastra, T.Nagar, Chennai:-

When the cheque dated 19.01.2013 was presented for collection by the complainant on 28.03.2013 through his banker viz., Indian Overseas Bank, Fairlands Branch, Salem, the same was returned for the reason 'exceeds arrangement', as is seen from the cheque return memo (Ex.P2). At the request of the revision petitioner, the complainant presented the cheques dated 21.02.2013 and 22.03.2013 and the same were returned for the reason 'Payment stopped by the drawer', as is seen from the cheque return memo (Ex.P2). Thereafter, the complainant issued a statutory notice on 29.03.2013 (Ex.P6 in C.C.No.288/2013, Ex.P5 in C.C.Nos.287 and 289/2013 respectively) through his lawyer to the accused demanding the latter to pay the amount due under the cheques within a period of 15 days from the date of receipt of the notice. According to the complainant, though the accused received the said notice on 02.04.2013, as is evidenced by the postal acknowledgement cards (Ex.P7 in C.C.No.288/2013, Ex.P6 in C.C.Nos.287 and 289/2013 respectively), he did not come forward to make good the payment and did not also send any reply.

4. Therefore, the complainant filed private complaints under Section 200 of Criminal Procedure Code before the Judicial Magistrate No.5, Salem, in C.C.Nos.288, 287 and 289 of 2013 against the revision petitioners/accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The learned Judicial Magistrate took cognizance of the offence under of the Negotiable Instruments Act and issued summons to the accused/revision petitioners under Section 204 Cr.P.C. On appearance of the accused, the Judicial Magistrate furnished copies of records to them under Section 207 . When the revision petitioners/accused were questioned with regard to the substance of accusation made against them, they pleaded not guilty. Therefore, the case was posted for trial. 5. On the side of the complainant, the complainant examined himself as PW.1 and one another witness viz., Subba Raju (PW.2)-Senior Manager, Bank of Maharashtra and marked Ex.P1 to Ex.P18.

6. When the revision petitioners/accused were questioned under Section 313(1)(b) of Cr.P.C., with regard to the incriminating circumstances appearing in evidence against them, they denied of having committed any offence. However, they did not examine any witnesses on their side.

7. The 1st accused is the company and the 2nd accused is the Managing Director of A1-Company. The learned Judicial Magistrate, after analysing the oral and documentary evidence on record, acquitted the 3rd accused (wife of 2nd accused) and convicted the 1st and 2nd accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced them as follow