R.S.B. Venmani vs S. Balasubramanian

M. Sathyanarayanan, J.—The revision petitioner is the accused in STC No. 41 of 2011 on the file of the Court of Judicial Magistrate, Srivilliputhur and he was convicted and sentenced to undergo simple imprisonment for one month with compensation of twice the amount of cheque amount of Rs.2,50,000/-, with default sentence of three months simple imprisonment vide judgment dated 22.08.2011. The accused aggrieved by the conviction and sentence recorded by the lower Court filed an appeal in CA No. 136 of 2011 on the file of the Court of Principal Sessions Judge, Virudhunagar District at Srivilliputhur and the lower appellate Court, while confirming the conviction, has modified the sentence of compensation to that of cheque amount and maintain the default sentence vide impugned judgment dated 06.10.2012. The appellant/accused aggrieved by the confirmation of conviction and sentence passed by the lower appellate Court in the impugned judgment, has filed this revision.

The respondent/private complainant has filed STC No. 41 of 2011 on the file of the Court of Judicial Magistrate, Srivilliputhur alleging that the revision petitioner/accused has borrowed a sum of Rs.2,50,000/- on 08.05.2009 on executing a demand promissory note and also agreed to pay interest at the rate of 12% per annum. When the respondent/private complainant made demand to settle the amount, she, as a proprietrix of M/s. Hrshini Jaanu Enterprises, has issued a cheque No. 102862 dated 22.04.2010 drawn on ICICI Bank, Rajapalayam Branch for a sum of Rs. 2,50,000/- (Ex.P2). The said cheque was presented for clearance to the Complainant bank, namely, State Bank of India, Srivilliputhur on 28.04.2010 and it was returned with an endorsement "not arranged for" vide return memo dated 03.05.2010(Ex.P4). Thereafter the complainant issued a statutory notice under Ex.P6 to the address of the revision petitioner/accused given in the pronote with a copy marked to the office address and the copy was served under Ex.P.7 acknowledgment. As the revision petitioner/accused has failed to make payment within 15 days from the date of receipt of statutory notice, the respondent/private complainant filed the above said complaint.

The revision petitioner/accused on receipt of summons, appeared before the trial Court and pleaded not guilty to the charges framed against her. During the course of trial, respondent/complainant examined himself as P.W.1 and marked Exs.P1 to P7.

The revision petitioner/accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances made out against her and the evidence rendered by the respondent/private complainant and she denied it as false.

On behalf of the revision petitioner/accused, an official attached to the Deputy Commissioner of Commercial Taxes was examined as D.W.1 and attendance registers for a period between April 2010 and June 2010 was marked as Ex.D1.

The trial Court, on consideration of oral and documentary evidence, has convicted and sentenced the revision petitioner/accused as stated above and on appeal also, the conviction was confirmed. However, the sentence of compensation was modified to that of the cheque amount with default sentence and hence, this revision.

The learned counsel for the revision petitioner/accused made the following submissions:

(i) In Ex.P.6, statutory notice has been addressed to 15-F/31 VOC Nagar, Srivilliputhur 626125, with a copy marked to the following address "R.S.B. Venmani (revision petitioner herein), Assistant, Commercial Tax Office, TP Mills Road, Rajapalayam 626117 and it was served under Ex.P7 acknowledgment on 02.06.2010 and even as per the evidence of P.W. 1/private complainant, he did not send notice to the address given in the promissory note marked as Ex.P1 and further that the signature found in the acknowledgment itself varies with that of the signature of the revision petitioner/accused found in Ex.P1 Promissory note and Ex.P2 cheque and therefore, it cannot be construed as proper service of notice.

(ii) The revision petitioner/accused never worked as an Assistant in the Commercial Tax Office, as evidenced by the testimony of D.W.1 and the attendance register marked as Ex.D1.

(iii) In sum and substance, it is the submission of the learned counsel for the revision petitioner/accused that since the statutory notice has not been served in the manner known to law, no cause of action arose in favour of the respondent/private complainant to launch the prosecution under Section 138 of the Negotiable Instruments Act, 1881 and hence, on the sole ground, the impugned judgment of the lower appellate Court in confirming the conviction and sentence awarded by the trial Court is to be set aside and prays for allowing the revision.

Per contra, the learned counsel for the respondent/complainant would contend that the revision petitioner/accused has employed as an Assistant in a temporary capacity in the office of the Commercial Tax Office at the relevant point of time. Therefore, a copy was marked to that office, which was also served and therefore, it could be construed as a proper service of statutory notice. It is the further submission of the learned counsel for the respondent/private complainant that the revision petitioner has failed to dislodge the presumption cast upon her by not entering into the witness box and the Courts below on proper appreciation of oral and documentary evidence, has rightly convicted the revision petitioner as guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 and accordingly, convicted her and sentenced as above and prays for dismissal of this revision.

This Court, after considering the rival submissions and upon perusal of the typed set of documents as well as the original record, is of the view that the impugned judgment passed by the lower appellate Court is to be set aside for the following reasons:

(i) In Ex.P1 Promissory Note, address of the revision petitioner/accused is given as "15-F/31 VOC Nagar, Srivilliputhur. According to the respondent/private complainant, when he demanded the amount from the revision petitioner/accused, which was due and payable under Ex.P1 Promissory Note, she issued the impugned cheque under Ex.P2 on 22.04.2010. This Court has verified the signature found in Ex.P1 and Ex.P2 and it tally with each other.

(ii) A perusal of the statutory notice under Ex.P6 would disclose that the notice was addressed to the revision petitioner/accused as per the address given in Ex.P1 promissory note. But no acknowledgment was produced.

(iii) P.W.1/private complainant in his cross examination made a crucial admission that the statutory notice was not sent to the address given in Ex.P1 promissory note, but it was addressed only to her office address, which was acknowledged under Ex.P7.

(iv) This Court has also compared the signature found in Ex.P7 acknowledgment with that of Ex.P1 promissory note, Ex.P2 Cheque and the signature found did not tally with each other.

(v) D.W.1, the official employed in the Commercial Tax Office would submit that the revision petitioner/accused was not employed as Assistant in their office and the attendance registers marked as Ex.D1 would also disclose that her name is nowhere found in the attendance register.

(vi) The object of issuing notice under Section 138 of the Negotiable Instruments Act, 1881, is to put on notice the accused the factum of dishonour and to give him or her a chance to make payment due and payable under the said cheque and it is a pre-requisite for filing private complaint under Section 138 of the Negotiable Instruments Act, 1881. Unfortunately, in this case, the respondent/private complainant has failed to comply with the said mandatory provision and materials available on record will also indicate that he has not sent a notice to the revision petitioner/accused to the address given in Ex.P1 promissory note.

(vii) As already pointed out though Ex.P7 acknowledgment was produced to that effect that the revision petitioner/accused has been served in her office address, the signature found in Ex.P7 acknowledgment does not tally with the signature found in Ex.P2 cheque and P.W.1 in his cross examination has also admitted that he has not issued a statutory notice to the address given in the promissory note. As the respondent/private complainant has failed to comply with the mandate under Section 138 of the Negotiable Instruments Act, the conviction and sentence confirmed by the lower appellate Court with the modification of compensation amount, in the considered opinion of the Court, is to be set aside.

In the result, the criminal revision petition is allowed and the impugned judgment dated 06.10.2012 made in C.A. No.136 of 2011 is set aside and the revision petitioner/accused is acquitted.

At this juncture, the learned counsel for the petitioner has brought to the notice of this Court that this Court, while ordering suspension of sentence of imprisonment, has directed the revision petitioner to deposit 50% of the cheque amount to the credit of STC No. 41 of 2011 before the trial Court and it has also been complied with. Since the revision petition has been allowed, she is permitted to withdraw the amount deposited by her as per the above said interim order.