Failure to give separate statutory notice to all signatories violates Section 138 of the Negotiable Instruments Act.

JUDGMENT

The petitioner as complainant filed a private complaint under Section

138 of the Negotiable Instruments Act against the respondents in S.T.C.No.182 of 2016. The trial Cout,t by judgment dated 10.10.2019 dismissed the complaint and discharged the accused/respondents, against which, the present appeal is filed.

2.For the sake of convenience, the parties are referred to as per their litigative status before the trial Court.

3.The case of the complainant is that both the respondents jointly borrowed a sum of Rs.3,00,000/- from the complainant for their urgent needs on 28.06.2015. To discharge their existing liability, both of them issued a signed cheque bearing No.009848 dated 28.09.2015 for Rs.3,00,000/- drawn on Axis Bank Ltd., Kanhangad, Kerala branch in favour of the complainant. On instructions of the respondents, the appellant presented the said cheque with his bank, namely, ICICI Bank, Tiruchengode on 26.10.2015 and the same returned with an endorsement ‘Account Closed’ on 28.10.2015. Thereafter statutory notice issued on 17.11.2015 demanding the cheque amount. The notice was taken to the address known to the complainant and the same returned with an endorsement ‘Addressee Left’ with seal dated 24.11.2015. Thereafter following statutory conditions complaint filed. During trial complainant examined himself as PW1 and marked 5 documents Exs.P1 to P5. On the side of the defence, DW1/Hand writing expert examined and through him Ex.D1/Hand writing report marked. On conclusion of the trial, the trial Court dismissed the complaint against which, the present appeal.

4.The contention of the complainant is that on 28.06.2015, the respondents approached the complainant and for their urgent needs took a loan of Rs.3,00,000/- from the complainant and promised to repay the same within three months and in discharge of the said liability they issued a cheque dated 28.09.2015 drawn on Axis Bank, Kerala branch for a sum of Rs.3,00,000/-. The cheque was filled up and signed by both the respondents. On the request of the respondents the cheque was presented on 26.10.2015 with the complainant bank, namely, ICICI Bank, Tiruchengode branch and it was returned for the reason 'Account Closed'. Thereafter, on 17.11.2015, statutory notice sent but it was returned on 24.11.2015 with an endorsement ‘Addressee Left’. Hence complaint filed. The complainant also deposed to this effect. The complainant was cross examined in detail and in the cross examination complainant’s real estate business and his income were questioned. The complainant deposed he was owning around 12 acres of land and having agricultural income of Rs.1,00,000/-. Further, he is in the real estate business and he is earning around Rs.10,00,000/- from the business. He is doing finance, lending money on interest. The complainant specifically denied running of any chit, first respondent known to complainant for four years and the second respondent for more than 20 years and due to this relationship, he had given loan amount of Rs.3,00,000/-.

5.The complainant was also questioned with regard to filing of Income Tax returns, which admitted and agreed to produce but thereafter no steps taken by the respondents. The variance in the signature questioned and explained. The specific answer of the complainant is that the details in the cheque was filled up and both respondents 1 and 2, signed the cheque in his presence and the complainant had no objection to submit the cheque/Ex.P1 for examination by hand writing expert and cross examination estopped at that stage. Thereafter, the specimen signatures/S1 to S10, admitted signatures/A1 to A5, photostate copies/A6 to A9 of the respondent and the cheque/Ex.P1 sent to the hand writing expert