The High Court allowed the criminal appeal against the acquittal of a cheque bouncer. It held the notice was served despite evasion and the debt was proved, reinstating the trial court's conviction.
Criminal Appeal allowed; Judgment of Additional District and Sessions Judge set aside; Judgment of Judicial Magistrate confirmed; accused to be sent for sentencing.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.06.2018
CORAM:
THE HONOURABLE MR. JUSTICE R.PONGIAPPAN
CRL.A.669 of 2009
Thiraviyam S/o.Kannaiah Nadar ... Appellant/Complainant Vs Siva @ Sivakumar S/o.Shanmugam ... Respondent/Accused Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., against the Judgment dated 10.09.2009 in Criminal Appeal No.82 of 2008 on the file of the learned Additional District and Sessions Judge, (FTC No.I) Salem, wherein the judgment dated 23.04.2008 in S.T.C.No.396 of 2007 on the file of the learned Judicial Magistrate No.I, Sankari, is set aside and acquitted the accused.
For Appellant : Mr.S.Kalyanaraman
For Respondent : Mr.P.Jagadeesan
J U D G M E N T
The appellant is the complainant in S.T.C.No.396 of 2007. Aggrieved over the judgment dated 10.09.2009, rendered by the learned Additional District and Sessions Judge, F.T.C. No.I, Salem in Crl.A.No.82 of 2008 by reversing the judgment and set aside the conviction and sentence awarded in favour of the respondent/accused, by the learned Judicial Magistrate No.I, Sangagiri in S.T.C.No. 396 of 2007 dated 23.04.2008, the appellant/ complainant filed this criminal appeal.
“Insufficient Funds”. Thereby on 28.02.2007, he issued statutory notice demanding to pay the cheque amount within a period of 15 days. The said notice was returned as refused. The return notice was received by the appellant on 06.03.2007. Accordingly, the act committed by the respondent constitute for the offence under Section 138 of Negotiable Instruments Act. Hence, the appellant lodged a complaint before the Judicial Magistrate No.1, Sangagiri for initiating the action against the respondent.
V.T.Shanmugam. The said document was marked as Ex.B.18. Further more, in the sworn affidavit filed by the respondent/accused, in the same application, the name of the respondent mentioned as Sivakumar @ Siva. The copy of the said affidavit was marked as Ex.P.19. Therefore, the respondent purposely evaded the statutory notice in this case. But, the first appellate Court without considering these aspects came to the conclusion that the statutory notice was not properly served with the respondent.
the respondent is Siva @ Sivakumar. Thus it concludes, only in order to avoid the receipt of the statutory notice, the respondent purposely stated as his name is only Siva. In this aspect, the entire circumstances show that the respondent purposely evaded in receiving the notice. The said aspect has been wrongly misconsidered by the first appellate Court and gave opinion that no proper service effected as contemplated by law. So this Court came to the conclusion that the endorsement and other circumstances show that the statutory notice was deemed to be served.
“34. It is to be noted that the legal position is that only when the complainant discharges his burden that the cheque was issued by the respondent/accused towards the discharge of a legally enforceable whole or part of a debt or liability as the case may be, then, only the respondent/accused ordinarily will be called upon to answer his case...... ”
In the above said case, the execution of cheque itself is under dispute. But in the case in hand, the respondent admitted the execution of cheque and mentioned as it was issued as security for the loan availed.
Rts
25/06/2018
Following Paragraphs 13 and 14 substituted as per order Sub Sequently passed on 28/06/2018
"13. In the light of the above discussion, this Court comes to the conclusion that the respondent has found guilty for the offence 138 of Negotiable Instruments Act and sentenced to undergo six months simple imprisonment and to pay a fine of Rs.5,000/- in default to undergo three months simple imprisonment .
Copy TO
The Section Officer, Criminal Section, High Court, Madras-104.
+1cc to Mr.S.Kalyanaraman, Advocate SR.No.40651 +1cc to Mr.P.Jagedeesan, Advocate SR.No.40771
Crl.A.No.669 of 2009
KGK(CO)
GN(31/07/2018)
2 issues framed by the court
Whether the statutory notice was deemed to have been served to the respondent who allegedly evaded it by using a shortened name.
Whether evidence was sufficient to prove that the cheque was issued to discharge a legally enforceable debt.
Colour shows how this judgement treated each authority
C.Kathirvel Vs. K.S.V.Cotton Mills (P) Ltd.Referred¶24
2017(2) MWN (Cr.) DCC 15 (Mad.)
3 provisions across 2 enactments
Thiraviyam
Siva
R. Pongiappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
R. Pongiappan
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