R SRIDHER Vs. T K RAJENDRA SHA

JUDGEMENT

(1.) THE complainant, who is the appellant in this case, has come forward with this appeal challenging the order of acquittal passed by the learned V Additional Sessions Judge, Chennai, in C. A. No. 91 of 2004 dated 22. 09. 2004 reversing the order of conviction passed by the learned IX Metropolitan Magistrate, Saidapet, Chennai, in C. C. No. 3716 of 2003 dated 17. 02. 2004 convicting the accused under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") and sentencing him to undergo two years Rigorous Imprisonment and to pay a compensation of Rs. 42,00,000/-, which is twice to the cheque amount of Rs. 21,00,000/-, in default, to undergo three months Simple Imprisonment. There are totally two accused and the learned trial Magistrate acquitted A-2 from the charges levelled against him.

(2.) (A) The case of the complainant is that the first accused and the second accused in this case are the father and son and both of them jointly approached the complainant in the year 2002 and borrowed total sum of Rs. 21,00,000/- on various dates till July 2002 for their business purpose. It is the further case of the complainant that there was also an agreement, Ex. P. 1, entered into between the complainant and A-1 admitting the liability and also in addition to that A-2 executed a promissory note, Ex. P. 2, in favour of the complainant. It is the further case of the complainant that in order to settle the above said amount pending to him, A-1 issued a cheque, Ex. P. 3, dated 11. 11. 2002 for an amount of Rs. 21,00,000/- drawn on Lakshmi Vilas Bank Limited, Triplicane Branch, in favour of the complainant, who has been examined himself as P. W. 1. (b) It is further stated by the complainant that at the time of issuing the cheque, Ex. P. 1, the accused requested the complainant to present the same after getting instructions from him as he has to make the sufficient funds to honour the cheque. It is further stated by the complainant that as per the instruction of the accused, he has deposited the cheque in his Bankers viz. , Tamil Nadu State Apex Co-operative Bank Limited, Triplicane on 21. 03. 2003 and the same was dishonoured with an endorsement "funds Insufficient", as per the Intimation of the Bank, Ex. P. 4. Ex. P. 5 is the debit advice. Thereafter, the complainant sent a registered legal notice, Ex. P. 6, through Courier Post to both the accused calling upon them to make the payment towards the dishonoured cheque, Ex. P. 3, within 15 days from the date of receipt of the notice. (c) It is the further case of the complainant that A-1 and A-2 deliberately evaded to receive the notice and hence, the notice sent by the complainant returned with a courier endorsement "refused" on 27. 03. 2003. The complainant has also marked Exs. P. 7 and 8, the returned Courier post covers with the receipts. The complainant, in order to prove his case, has also filed Ex. P. 9, his Bank Statement, and Ex. P. 10, copy of the bank account of the accused. The complainant has also stated that in spite of knowing fully well about the dishonour of the cheque and after deliberately refusing to receive the notice, Ex. P. 6, till date A-1 and A-2 have not settled the amount towards the dishonoured cheque, Ex. P. 3, even after the expiry of the stipulated time contemplated under Section 138 of the Act and as such A-1 and A-2 have committed the offence under Section 138 of the Act.

(3.) THE complainant in order to prove his case examined himself as P. W. 1 and examined P. W. 2, who is the Cashier of the Lakshmi Vilas Bank Limited, Triplicane, to speak about the return of cheque on the ground of "insufficient Funds". The complainant also marked Exsp. 1 to P. 10.