B ADHIKARI Vs. PONRAJ

JUDGEMENT

(1.) Petitioner Adhikari being the accused in C.C. No. 6296 of 1991 on the file of the XV Metropolitan Magistrate, George Town, Madras, for the offences under S. 138 of the Negotiable Instruments Act, found guilty and convicted thereon, however who lost the appeal in Criminal Appeal No. 203 of 1994 on the file of the Additional Sessions Judge, Madras, on 24-4-1995 has come forward with this revision challenging the impugned judgement of the learned Sessions Judge confirming the judgement and sentence recorded by the trial Court as above referred.

(2.) For the purpose of his business the revision petitioner had a loan of Rs. 20,000/- from the respondent herein and for the return of the same he had given a cheque to the respondent on 5-7-1991 which upon accounting was returned as dishonoured. On appraising of the said fact, the amount had not dishonoured was 27-8-1991. However on 2-9-1991 notice on behalf of the respondent was given to the revision petitioner demanding the payment of the said sum as his liability, which liability has been defined under Act, which was returned as unserved with the endorsement 'not found' on 20-9-1991. Hence he respondent filed the complaint. After having taken the complaint on file and completing all the judicial formalities and recorded the adduced legal evidence on behalf of both parties, the learned trial Magistrate found the revision petitioner/accused guilty for the offence under S. 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and also to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for a period of one year further. In the appeal preferred by the accused/revision petitioner before the learned Additional Sessions Judge, Madras, in C.A. No. 203 of 1994, on 24-4-1995 learned Appellate Judge after having re-appraised the whole evidence, dismissed the appeal by confirming the conviction and sentence recorded by the trial court. Aggrieved at this the above revision has been preferred challenging the impugned judgement rendered by the learned appellate Judge challenging its propriety, legality and validity.

(3.) Dr. G. Krishnamurthy, learned counsel appearing on behalf of the petitioner during the course of his argument brought to my notice the finding of the learned Appellate Judge that sub-clauses (b) and (c) of S. 138 of the Negotiable Instruments Act has not been followed in this case and that both courts below have totally overlooked the said aspect and that the non-compliance, of the legal mandate goes to the root of the case. On this ground, the learned counsel challenges the propriety and correctness of the order passed by the courts below.