S. BALAMANI Vs. VIJAYASHANTHI

JUDGEMENT

(1.) The Petitioner is the accused in C.C. No. 720 of 2004 on the file of the learned Judicial Magistrate No. 3, Salem. The petitioner stood trial for the offence punishable under Section 138 of The Negotiable Instruments Act. Upon trial, the petitioner was convicted for the offence under Section 138 of Negotiable Instruments Act and sentenced to undergo six months simple imprisonment with fine of Rs. 3,000/- failing which to undergo another six months simple imprisonment. On appeal, the Appellate Court, while affirming the conviction imposed on the petitioner under Section 138 of the Negotiable Instruments Act, modified the sentence alone into one of payment of the cheque amount of Rs. 1,00,000/- within two months, failing which to undergo simple imprisonment for two months. As against the order passed by the Appellate Court, the petitioner has come forward with this Criminal Revision Case. The case of the respondent is that the petitioner has borrowed a sum of Rs. 1,00,000/- from her and for repayment of the borrowed amount, the petitioner has issued a cheque dated 10.07.2004 drawn on Salem Urban Cooperative Bank. When the cheque was presented for collection on 13.07.2004 by the respondent with her bankers, it was dishonoured for the reason "insufficient funds". On 24.07.2004, the respondent issued a statutory notice. Inspite of receipt of the notice, the petitioner has neither issued any reply nor paid the cheque amount, hence, the respondent has filed the complaint.

(2.) The learned counsel for the petitioner mainly contended that the statutory notice dated 24.07.2004 was not issued by the respondent to the correct address and it was wantonly sent to a wrong address. The respondent has not filed any proof for having served the statutory notice on the petitioner and she filed only the returned postal cover, Ex. P5. However, the petitioner, in her complaint, has stated that she was intimated by the postal authorities that the notice was delivered to the petitioner. In this context, the learned counsel for the petitioner relied on the decision of the Hon'ble Supreme Court D. Vinod Shivappa v. Nanda Belliappa, 2006 AIR(SC) 2179 and also V. Raja Kumari v. P. Subbarama Naidu and Another, 2005 AIR(SC) 109 to contend that the service of notice is not sufficient and consequently the complaint itself is not maintainable.

(3.) The learned counsel for the petitioner would further contend that the cheque in question was not given by the petitioner for repayment of the loan and it was given as security for due repayment of loan on behalf of her relative. In fact, her relative on whose behalf the petitioner has given the cheque he has settled the amount payable to the respondent. Even in the complaint, the respondent has not stated as to when the amount was paid by her, but she only stated that the amount was given to the petitioner on different dates. The above aspects have not been properly considered by the courts below. Therefore, the learned counsel for the petitioner prayed for setting aside the orders passed by the courts below.