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Judgment
M. Chockalingam, J.—This appeal has arisen from the judgment of the learned Additional District Judge (Fast Track Court No. V),
Coimbatore at Tirupur, reversing the judgment of the trial Court namely the Court of the Judicial Magistrate No. I, Tirupur, made in C.C.No.112
of 2002.
Heard the learned Counsel for the appellant. This Court is of the considered opinion that the materials available are suffice to pass an order of
dismissal in this appeal, and no notice is even necessary to the respondents, since it does not require an admission.
It was a private complaint filed by the appellant herein under Sections 138 and 142 of the Negotiable Instruments Act, alleging that the first
respondent/accused issued a cheque to him to the tune of Rs.2,32,099/-. When the same was placed for encashment, it was returned dishonoured.
A statutory notice was issued. The cause of action has arisen, since the demand made thereat was not met by the first respondent/accused, and
thus, he lodged the private complaint before the lower Court. The trial Court took cognizance of the same and issued summons, pursuant to which
she appeared. On trial, the trial Court has found her guilty and awarded two years Rigorous Imprisonment along with a compensation of
Rs.2,32,099/-. Aggrieved, the accused took it on appeal, which was taken up by the lower appellate forum in C.A. No.390 of 2004. On enquiry,
the lower appellate Court reversed the judgment of the trial Court and acquitted the accused. Hence, this appeal before this Court.
The learned Counsel for the appellant, while addressing this Court, would submit that the trial Court on consideration of the factual and legal
positions, has found her guilty; but, it has been erroneously reversed by the lower appellate forum; that apart from that, the trial Court has found
that the statutory notice is valid; but, the lower appellate Court has erroneously found it defective; that the trial Court has applied the judicial
decisions of the Apex Court properly; but, the same has not been properly looked into by the lower appellate Court; that on the contrary, the
lower appellate Court has applied the decisions which were not applicable to the present facts of the case, and under the circumstances, the
judgment of the lower appellate Court has got to be set aside.
All the materials available are carefully perused, and the contentions put forth by the learned Counsel for the appellant and recorded above are
also considered by this Court. After the same, this Court is of the considered opinion that this appeal carries no merits.
The case of the appellant before the trial Court was that there was a cheque issued by the first respondent/accused on 22.11.2000, for a sum of
Rs.2,32,099/-, and when the same was placed for encashment, it was returned dishonoured, and hence, following a statutory notice, he lodged the
private complaint. The only ground on which the judgment of the trial Court, finding her guilty, was set aside by the lower appellate Court, was that
the pre-proceedings notice was found to be a defective one. A copy of the notice is also placed in the hands of the Court, wherein the amount is
found as Rs.2,39,099/-; but, it was not so. When P.W.1 was cross examined, he has categorically admitted as follows:
(VERNACULAR DELETED)
It is pertinent to point out that when the complaint was filed before the lower Court, the defect that was found in the notice, was rectified, and it
was placed before that Court, but without rectifying the defect what was found in the notice issued to the opposite party. But, this would not satisfy
the legal requirements. The legislative intent of a notice in a proceeding under Sec.138 of the Negotiable Instruments Act is, making the opposite
party put on notice as to the demand found therein; and that he should meet the demand within the stipulated time, and if not, the prosecution has
got to be launched. But, in the instant case, the notice what was issued prior to the proceedings, has got to be termed as only defective.
Now, at this stage, it would be worthwhile to make mention of the decision of the Supreme Court reported in K.R. Indira Vs. Dr. G.
Adinarayana, , wherein it has been held thus:
Demand for amount covered by bounced cheque is conspicuously absent in notice issued. Notice is imperfect, since it does not contain any
demand for payment of cheque amount. Complaint filed by the complainant and based on imperfect notice issued to drawer of cheques is not
maintainable.
This Court is of the considered opinion that once the private complaint was filed by the complainant on the basis of the notice, which was not clear
as to the cheque amount, the notice was imperfect and defective in law. Needless to say that on the basis of the defective notice, neither the
proceedings under Sec.138 of the Act can be launched or maintained, nor the accused can be found guilty. Under the circumstances, the first
appellate Court was perfectly correct in dismissing the complaint and reversing the judgment of the trial Court. Hence, the judgment of the first
appellate Court does not require any interference, and accordingly, it is sustained.
In the result, this criminal appeal fails, and the same is dismissed. Consequently, connected Crl.M.P. is also dismissed.