M BALASUBRAMANI Vs. SHINE LEATHER EXPORTS

JUDGEMENT

(1.) THIS Criminal Revision Petition is filed on behalf of the petitioner/complainant against the judgment, dated 18. 02. 2002, made in c. C. No. 262 of 1998 on the file of the Judicial Magistrate, Gudiyattam, convicting the respondents for the offence under Section 138 of Negotiable instruments Act and sentencing them to pay a fine of Rs. 2 ,50 0 /-each and in default to undergo one month SI, seeking proportionate punishment and compensation.

(2.) THE brief facts of the case are as follows: THE respondents / A2 and A3 as partners of A1 firm had obtained a loan of Rs. 1,44,087/- from the petitioner / complainant and out of which they returned only Rs. 64,087/- and for the balance of Rs. 80,000/- with interest, two cheques drawn on Canara Bank, Pernampet Branch, bearing Cheque nos. 995357 and 995358, each for a sum of Rs. 40,000/- were given to the petitioners on 25. 05. 1998 by the respondents, when the same were sent by the petitioner / complainant for collection through State Bank of India, Pernampet branch, they were dishonoured and returned with the note "insufficient funds". When the matter was immediately intimated to the respondents / accused by the petitioner / complainant, they requested the petitioner / complainant to present the same during the first week of September 1998. As per the request of the respondents / accused, the petitioner sent the cheques again for collection through the State Bank of India , Prenampet Branch on 14. 09. 1998, but again the cheques were returned due to insufficient funds. Hence, the petitioner / complainant issued statutory notice through his counsel. Though the legal notice was received by the respondents / accused, they fail to comply with the demand made in the notice. Hence, the petitioner gave a complaint under Section 138 r/w 142 of Negotiable Instruments Act before the Judicial Magistrate, Gudiyattam. After the case was posted for trial, in support of the petitioner's case, apart from examining the petitioner/ complainant, Manager of the Canara Bank, Pernampet Branch and Manager of State bank of India, Pernampet Branch were examined as P. W. 2 and P. W. 3. respectivel y and Exs. P. 1 to P. 10 were marked. THE second respondent / A2 examined himself as D. W. 1 and Exs. D. 1 and D. 2 were marked on the side of the respondents.

(3.) PER contra, learned counsel for the respondents / accused would contend that the charges levelled against the respondents have not been proved. According to them, the cause of action would commence for filing the complaint on the payee making demand on the drawer by giving notice in writing demanding payment on account of the dishonour of the cheque, within 15 days from the date of demand.