R GLORY KAMALAM Vs. L.T. RAJASEKARAN

JUDGEMENT

(1.) THE revision arises out of the judgment of conviction and sentence dated 14.06.2007 made in C.A.No.334/2006 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore, where by the accused is found guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for 3 months and imposed a fine of Rs.3,000/- in default, to undergo one month simple imprisonment, confirmed the judgment of conviction and sentence dated 11.07.2006 made in C.C.No.701/2004 on the file of the learned Judicial Magistrate No.II, Coimbatore.

(2.) THE case of the respondent/complainant is that the accused borrowed Rs.3,00,000/- from him on 23.09.2003 for her urgent and for educational expenses of her children and also promised to repay the above said amount within six months. When the complainant requested her to discharge the above said legally enforceable debt, the accused issued a cheque bearing No.000636641008002 for a sum of Rs.3,00,000/- under Ex.Pl on 29.03.2004. When the cheque under Ex.Pl was presented in the Bank, it was dishonoured with an endorsement 'Insufficient funds' and the return memo was marked as Ex.P2 and the debit advice was marked as Ex.P3. So the complainant issued a statutory notice on 22.04.2004 under Ex.P4 calling upon the accused to pay the amount that she borrowed, within 15 days and an acknowledgement card was marked as Ex.P5. Neither the accused repaid the amount nor given any reply to the statutory notice. Hence, the respondent/complainant constrained to file a complaint against her.

(3.) CHALLENGING the said conviction and sentence passed by both the Courts below, the learned counsel for the petitioner submitted that the complaint itself is not maintainable, since no statutory notice has been served to the petitioner. The second limb of the argument advanced by him that the petitioner/accused has not borrowed any amount from the respondent/complainant. She issued a blank cheque in favour of one Leelamani for discharging of two months interest and the same was utilised by the respondent/complainant herein, who is close associate of said Leelamani. So there is no legally enforceable debt. He further submitted that both the Courts below have not considered this aspect in proper perspective. Hence, he prayed for allowing of this revision. To substantiate his argument, he relied upon the decisions of the Apex Court.