Marimuthu vs Arumugam

Rengasamy, J.—These criminal Appeals have been filed against the orders of acquittal passed by the learned Judicial Magistrate-III.

Srivilliputhur. in C.C. Nos. 14 of 1990 and 241 of 1990. dated 1.3.1993. for the offence u/s 138: Negotiable Instruments Act.

The appellant/complainant filed two separate complaints for identical facts before the learned Judicial Magistrate stating that he placed the

orders for supply of powerlooms by the respondent/accused and even though some powerlooms were supplied, the orders placed on two occasions each time for two powerlooms were not supplied by the respondent/accused. It is also the allegation in the complaint that when he insisted for the supply of the powerlooms, the respondent/accused issued two cheques, each for Rs. 50,400/- towards the value of the powerlooms and when he presented the cheques they were bounced, and therefore, after issue of the notices to the accused, who did not make any efforts to make payment even after the notices he filed the two separate complaints against the respondent/accused u/s 138 Negotiable

Instruments Act.

The complainant examined himself and another witness, the bank official and necessary documents were also produced to prove the bouncing of

the cheques.

The learned Judicial Magistrate, after considering the entire evidence, has found that after the presentation of the complaints there was an

agreement between the complainant and the accused to pay certain amount to the complainant towards the cheques amount together with interest at 25% if the amount is not paid within the time specified and in view of this agreement between the parties. Section 138 of the said Act is not attracted to punish the accused, and therefore, he has acquitted the respondent/ accused. Aggrieved of this order of the learned Judicial

Magistrate, the appellant has come forward with these appeals.

The learned Counsel appearing for the appellant Mr. Packiaraj contended that there is no dispute with regard to the issue of the two cheques

dated 30.4.1990. but these two cheques have been bounced by the bank and the appellant issued the notices as contemplated under the said Act.

and thereafter filed these complaints, that however, for the reason that the respondent/accused had agreed to make payment within a prescribed

time, the lower Court has taken the view that Section 138 of the said Act cannot be invoked to punish the accused and this view of the learned

Judicial Magistrate is incorrect, because, on the date of the complaint, offence has been made out and once the offence is completed, then the accused is bound to be found guilty, but contrary to this legal principle, the lower Court has found that offence u/s 138. of the said Act is not made out and this order of the lower Court is per se illegal.

The cheques have been marked as Exs. P-1 and P-2 in these cases and the Bank's memo has been marked as Exs. P-3 and P-4 and Debit

Advice has been marked as Exs. P-4 and P-5, to prove that these cheques have been bounced for want of funds in the account of the

respondent/accused. Exs. P-6 is the notice issued by the appellant/ complainant to the accused informing about the bouncing of the cheques in both the cases and Ex. P-7 is marked to prove the postal acknowledgment for the service of these notices in both the cases, within time provided under the said Act. Even after these notices, there was no reply payment by the respondent/accused. It is only thereafter, these complaints were presented by the complainant on 27.9.1990.

The respondent/accused had taken certain other pleas as found in the order of the Court below and they are the want of jurisdiction of the

Judicial Magistrate, Srivilliputhur, to try this case, that the cheques were issued as a security for the supply of the powerlooms and the

respondent/accused was not personally liable as the firm alone was liable to pay the amount to the complainant, that the firm was not impleaded as a party to the complaint, and therefore, the complaints against the respondent/accused alone was not maintainable. However: the learned Judicial

Magistrate, has found all these points in favour of the complainant. He has found that the cheques were presented with Canara Bank at

Rajapalayam for encashment and for the reason that the Canara Bank, Rajapalayam sent these cheques to Sankarankoil State Bank, it docs not mean that the offence has been committed within the jurisdiction of Sankarankoil Magistrate, as the cheques Were presented for encashment at

Rajapalayam and the cheques were returned only to Canara Bank. Rajapalayam with endorsement dishonouring the cheques, offence has, been committed at Rajapalayam which is within the jurisdiction of Srivilliputhur and therefore, the learned Judicial Magistrate Srivilliputhur, has jurisdiction to try this case.

Even though it was contended for the accused that the cheques were issued on behalf of the company, as a security, and the company is also a

necessary party to the proceedings the learned Magistrate has rightly found that the cheques have been signed by the accused/Arumugam, in his individual capacity and as there was no agreement to the effect that the cheques should not be uncashed within a specified time, the complainant was entitled to present the cheques for encashment. Therefore, the learned Judicial Magistrate has found that the accused, who was bound to provide funds for encashment of the cheques had failed to do the same and the complainant was entitled to encash the cheques, but the cheques have been bounced for want of funds in the account of the accused person.

The learned Counsel Mr. Packiaraj contended that when the accused has issued two cheques, and the learned Judicial Magistrate also has

found that the complainant, who was entitled to encash cheques, could not encash the same and they were bounced and after that the statutory notices were also issued by the complainant to the accused within the time and the accused has not arranged for the payment of funds, the offence is complete u/s 138 of the said Act and once the offence is established, then the subsequent events, even if the accused had offered to pay more amount to the complainant, it cannot be stated that the offence u/s 138 of the said Act is not attracted, for the acquittal of the accused, and

therefore, for the reason of subsequent agreement spoken to by the complainant in his evidence, it will not absolve the liability of the accused u/s

138 of the said Act, and, the finding of the lower Court is erroneous.

The learned Judicial Magistrate refers to the evidence of P.W. 1 in the cross-examination, wherein, he has admitted that on 27.9.1990, the

accused had executed an agreement to pay a sum of Rs. 91,700/- for each of these cheques and on paying the said amount, he would get return of the cheques, otherwise, to pay interest at 25%. According to the learned Magistrate when such an agreement was entered into between the

parties, the accused cannot be punished u/s 138 of the said Act. As rightly argued by the learned Counsel for the appellant Mr. Packiaraj, this

agreement, though admitted by the complainant himself on his evidence, is subsequent to the filing of the complaint on 27.9.1990. The complaints in C.C. Nos. 14 of 1990 and 241 of 1990 were presented on 27-9-1990 and on the same day, it is seen from the evidence of P.W. 1 in the cross-examination that the respondent/accused had executed the agreement to pay a sum of Rs. 91,700/- for each of the cheques.

The question is whether the accused had committed the offence u/s 138 of the said Act. When the cheques were bounced, and notices were

issued by the complainant to the accused within fifteen days, as required under law. and no payment was made thereafter, the ingredients of

Section 138 of the said Act are satisfied, then the offence is complete. It is because of this, the complaints were presented on 27-9-1990. When once the offences is completed, the subsequent negotiation of the accused with the complainant to settle the claim, will not in any way frustrate the operation of law. At the most, the complainant way withdraw the complaints in view of the compromise between them, or the Court may take into consideration of the subsequent conduct between the parties, may show leniency in the punishment, but it cannot be stated that the offence was not made out. Therefore, the lower Court was totally wrong in holding that the offence has not been made out in these two complaints, in spite of the fact that the findings have been given by the learned Judicial Magistrate that the accused has not provided funds even after the issue of the notices under Ex. P-6. The learned Judicial Magistrate has failed to note that the offence was complete even before the presentation of the complaints on

27-9-1990. When the offence was complete even before the presentation of the complaints on 27-9-1990. When the offence was completed the

Court has to deal with the offender to award the punishment for the commission of the offence. But the learned judicial Magistrate has acquitted the accused on a wrong finding that Section 138 of the said Act cannot be invoked after the agreement between the parties.

The learned Counsel for the appellant Mr. Packiaraj would represent that though the accused had offered to pay Rs. 91,700/- within a

particular time and to pay interest at 25% if he was not able to pay the amount within time, till now, the accused has not paid any amount, and

therefore, no leniency can be shown to the respondent/ accused. At this stage, I must also mention that the learned Counsel Mr. Singaravelan, who is representing Mr. Ramaswamy, the learned Counsel for the accused/respondent, has not cited any decision before me to the effect that even after the completion of the offence u/s 138 of the said Act, by virtue of any agreement subsequently between the parties, Section 138 of the said Act will not operate and the said section becomes ineffective. Therefore, in this case, the offence is made out and the respondent/ accused is liable to be punished. Therefore the finding of the learned Judicial Magistrate has to be set aside and the appeal is to be allowed.

Coming to the sentence. I feel that instead of convicting the respondent/ accused to undergo imprisonment, the imposition of fine will be

adequate punishment in these cases to meet the ends of justice. Therefore, the respondent/accused is found guilty in both the appeals and he is convicted to pay a fine of Rs. 52,000/- in each of these appeals and in default, to undergo six months rigorous imprisonment consecutively in each

appeal. On payment of the fine amount in these appeals, the appellant is entitled to receive Rs. 50,400/- as compensation in each of the appeals.

Time for payment of the fine amount is two weeks.

The appeals are allowed accordingly.