K RAJAMANICKAM Vs. P ARUMUGAM

JUDGEMENT

(1.) THE accused, who was punished by the trial Court for an offence under Section 138 of the Negotiable Instruments Act, 1881, after unsuccessfully prosecuting an appeal against the conviction and sentence, has come forward with the present criminal revision case.

(2.) THE petitioner herein came to be convicted of the said offence in C.C. No. 408 of 2004 on the file of the Judicial Magistrate No. IV, Salem, a case instituted by the respondent on a private complaint based on the dishonour of a cheque issued by the petitioner in favour of the respondent, marked as Exhibit P-1. THE said complaint was preferred after the statutory notice sent to the petitioner informing him of the dishonour and calling upon him to make payment of the cheque amount returned un-served. THE respondent/complainant figured as the sole witness (P.W. 1) and Exhibits P-1 to P-6 were marked on the side of the respondent herein/complainant. THE petitioner herein/accused figured as the sole witness (D. W. 1) and he produced Exhibits D-1 to D-3 on his side. THE learned Judicial Magistrate No. IV, Salem, after trial, held the petitioner herein/accused guilty of the offence with which he stood charged, convicted him and punished him with simple imprisonment for one year. It also passed an order directing payment of the cheque amount as compensation to the respondent/complainant.

(3.) THOUGH a number of grounds have been raised in the Memorandum of Criminal Revision Case, the learned counsel for the petitioner mainly relies on the contention that the condition precedent for launching prosecution for an offence under Section 13 8 of the Negotiable Instruments Act, 1881, has not been fulfilled and that the failure to comply with the said essential condition is fatal to the complainant's case, which should inevitably lead to the acquittal of the petitioner/accused. The learned counsel for the petitioner has drawn the attention of the Court to the observation made by the learned trial judge to the effect that the statutory notice issued to the petitioner citing an address in Yercaud, was redirected to his official address at Pallipatti, Salem but the same was returned with endorsements made in red ink without signature and date to the effect that the said tapal was not "claimed", whereas the trial Court misconstrued it and made an observation to the effect that the petitioner refused to receive the said tapal when it was tendered to him by the postman. According to the submission made by the learned counsel for the petitioner, the said mistake shall go to the root of the case, as it can be even termed a perverse finding.