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Judgment
A. Packiaraj, J.—This is an appeal preferred by the complainant against the acquittal of the Respondent for an offence u/s 138 of the
Negotiable Instruments Act passed by the learned I Additional Sessions Judge, Coimbatore in C.A. No. 150 of 1993.
The brief facts that have led to the acquittal are as follows: The complainant filed a complaint before the VII Judicial Magistrate, Coimbatore in
C.C. No. 171 of 1991 against the Respondent herein for an offence u/s 138 of the Negotiable instruments Act. The averments in the complaint are
that the accused/Respondent borrowed a sum of Rs. 23,000/- and executed a promissory note on 25.01.1998. The loan was borrowed at the
interest rate at 22 per cent. He undertook to repay the said loan within two months. When he received the amount he paid two months interest and
gave Ex.P. 13 wherein the due date has been noted as 25.03.1988. But, however, when the two months time was about to be lapsed, the
complainant demanded the money.
The accused apparently was not prepared to give the money, but instead issued a cheque dated 12.03.1991. The same was presented in the
Karur Vysya Bank, Coimbatore and it was returned as ""insufficient funds"". Hence, notice as contemplated under the Negotiable Instruments. Act
was issued. However, the notice was returned unserved and consequently the complaint was filed before the expiry of the period of limitation.
To substantiate the averments, the prosecution has examined two witnesses. P.W. 1 is none other than the complainant who speaks with
reference to the above said facts. P.W. 2 is the Bank Manager who speak with reference to the dishonouring of cheque.
The accused when questioned u/s 313 of Code of Criminal Procedure denied committing any offence and at the same time examined one
witness on his side who deposed to the effect that the cheque was given subsequently. However, the learned Magistrate who tried the case after
recording the evidence, and hearing the arguments of both sides, found the Respondent guilty of the said offence and convicted and sentenced him
to undergo Rigorous imprisonment for six months in addition to pay a fine of Rs. 2000/-.
Aggrieved by the same, the accused preferred an appeal. On appeal the conviction and sentence were set-aside on two grounds. The first
ground is to the effect that on the date of cheque being presented in the Bank, no legally enforceable debt subsisted and hence there is no liability
cast on the accused to honour the cheque. Secondly, the notice has not been served on the party namely, the accused herein and consequently he
cannot be prosecuted. As far as the first contention is concerned, it is the case of the prosecution that when the loan of Rs. 25,000/- was given, a
promote was executed. Along with that two months interest was calculated and was also paid for which a receipt had been given which has been
marked as Ex.P. 13. In the said receipt, it has been clearly established that the due date was on 25.03.1988 and consequently, according to the
Appellant, the debt was legally enforceable till 25.03.1991 and the cheque in question which had been presented in the bank was on 12.03.1991
and the same was presented on the same day which was returned on the ground that funds were insufficient. It is pertinent to note that there is no
cross examination with reference to the document, Ex.P. 13 which in effect would go to show that the accused admits having given the receipt in
which the due date has been specifically mentioned as 25.03.1988. Hence, according to the counsel the debt was legally enforceable till
25.03.1991. In support of this contention Mr. Nicholas appearing for the Appellant would rely on the judgment of a Division Bench of this Court
as early as 1920 in Poonuswamy v. Vellore Commercial Bank ( AIR 1920 Mad 486) wherein the question that arose for consideration was to
when the cause of action arose to file a suit. In the said case, the Appellant applied to the bank for a loan. The application was in printed form and
the blank space was filled in by the words ""for six months"". In addition to the above said application, there was also a promissory note. The
promissory note which had been executed on demand, but whereas the condition imposed in Ex.B 1 has fixed the time as six months. Therefore,
their Lordships were of the view that when such a document was received in evidence, though the suit was brought on promissory note on
demand, it was held that it was only subject to the receipt, Ex.B 1. Therefore, cause of action arose for calculating the period of limitation starting
from the time of lapse of six months. The same principle has to be applied to the present case wherein the document Ex.P. 13 clearly states that the
period is only from 25.03.1988. Therefore, the debt becomes legally enforceable till 25.03.1991, and when the present cheque was issued on
12.03.1991, it was well within the time. Consequently I hold the learned appellate Judge has erred in holding that no legally enforceable debt
existed on the date of the issuance and presentation of the cheque.
The second point which has weighed with the learned Judge in acquitting the accused has to be found against the accused.
The Supreme Court in Bhaskaran v. Sankaran reported in 1999 S.C.C. (Crl) 1984 at para 21 that once the payee sends the notice and the
same is despatched, his part is over and the next depends on what the sendee does. Therefore, when the complainant clearly stated that he has
sent a notice to the proper address and the same has returned as unclaimed or refused or not known. It is presumed to have been served on the
accused. However, the learned Counsel appearing for the accused would argue that in the present case the notice was sent to a wrong address
and consequently, it could not be served on the accused. In Support of his contention, he drew my attention to the evidence of P.W. 1. According
to the counsel, the said witness has admitted the fact that he knew that the accused has changed the address. But, however, it is seen from the
evidence that P.W. 1 the complainant has come to know about the change of address only after the notice has been returned from him unserved.
The notice has been addressed to the address given to him originally and consequently the complainant has done his part correctly. Therefore, his
coming to know of the address subsequently would not alter the circumstances and hence I hold that the view taken by the appellate Judge is
wrong.
Apart from the above said points which led to the acquittal, the learned Counsel appearing for the Respondents would contend that the
complainant has no locus standi to file the complaint. Without any hesitation, I may state that I do not agree with the contention raised by the
counsel. He has clearly given evidence to the effect that he is the Managing Partner of the firm and he has also marked Ex.P. 9 which indicate that
he is the Managing Partner of the firm. Therefore, in such circumstances, a separate letter of authorisation is not required from the other partners.
Consequently, this point also falls to the ground. In the above stated circumstances, I have to necessarily to set aside the judgment of the appellate
Court. I maintain the conviction passed by the VII Judicial Magistrate, Coimbatore. But, however this being an appeal against the acquittal and the
occurrence had taken place in the year 1993, I do not feel it is necessary to impose a sentence of imprisonment to the accused/Respondent, but
instead I maintain the sentence of fine amount of Rs. 2,000/-. However, in addition to the same, the accused is directed to pay Rs. 45,000/- as
compensation to the complaint. The said amount of Rs. 45,000/- is directed to be deposited before the trial Court within two months from the date
of receipt of the said order by the VII Judicial Magistrate, Coimbatore and on deposit of the amount, that the Court shall send summons to the
complainant. The complainant is at liberty to withdraw the said amount towards compensation u/s 357(1) of the Code of Criminal Procedure.