M MURUGAN Vs. QUEEN JHANSI VETRIKODI

JUDGEMENT

(1.) This revision has been filed against the order passed by Judicial Magitrate V, Madural in Crl. M. P. No. 2453 of 2002 in C.C. No. 766 of 2001, discharging the respondent of offence under Section 138 of the Negotiable Instruments Act.

(2.) The circumstances under which the said order came to be passed is as follows : (a) A complaint has been given against the accused/respondent for an offence under Section 138 of the Negotiable Instruments Act on the averment that the cheque Issued by the accused/respondent for, the discharge of a liability, on presentation the cheque was dishonoured with an endorsement "Payment stopped". Thereafter a telegram was sent by the complainant/petitioner to the accused/respondent intimating her about the cheque being dishonoured on the above said ground. The accused/respondent did not reply within the stipulated time. It has also been stated in the complaint that a statutory notice was issued on 26-10-2001 and the same has been received by the accused/respondent on 27-10-2001 and the prosecution was launched, since the accused/respondent neither paid the money nor replied to the said notice. (b) The Magistrate, who took cognizance of the offence had issued process. The accused/respondent on appearance before the Court took a preliminary objection stating that no statutory notice was given by the complainant/petitioner, as contemplated under the Negotiable Instruments Act. Hence prayed that the complaint be dismissed in-limine. It is her further case that the cheque in question bearing No. 016290 had been stolen from her possession by some miscreants and a complaint in respect of the same had also been given to the concerned police station and that consequently, she does not own any liability to the com? plainant/petitioner. . (c) a counter was filed by the complainant/petitioner stating that the accused-respondent herself has by way of her letter dated 4-12-2001 accepted the receipts of the notice contemplated under Section 138 of the Negotiable Instruments Act and consequently, the said ground has no merits. As far as the two grounds namely that the cheque has been stolen from her possession and that she is not liable to pay anything to him, are matters to be decided only by the trial Court. (d) However, the trial Court accepted the contention of the accused/respondent and discharged her of the offence under Section 138 of the Negotiable Instruments Act. It is against the said order, the present revision has been filed.

(3.) The learned counsel for the petitioner would now argue that the stand taken by the accused in the petition filed before the lower Court is contrary to facts. It has been mentioned in the complaint that a statutory notice has been issued and it has been received by the accused on 26-10-2001 and acknowledged by her on 27-10-2001. However, it has to be noted that it is a telegram with all details and consequently, to say that she did not receive any statutory notice is contrary to the facts and cannot be a ground to dismiss the complaint. But according to the accused, she admits having received a telegram from the complainant on 27-10-2001 which had been sent to her on 26-10-2001 by the complainant and this, In the eye of law, cannot be construed as a statutory notice contemplated under the Negotiable Instruments Act. As far as the notice is concerned, it is the admitted case of the prosecution that the complainant sent a notice only on 9-12-2001 though he fairly concedes it is not a notice for the initiation of prosecution.