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M/s. Ambur Steel Traders v. Engineer C.Noorulla - CRL.APPEAL NO.358 OF 1996  RD-TN 248 (12 April 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE A.PACKIARAJ CRL.APPEAL NO.358 OF 1996
M/s. Ambur Steel Traders
rept. By its Partner
67, Umer Road, Ambur
North Arcot Ambedkar District. .. Appellant. Versus
No.12, C.Nazer Street, Ambur. .. Respondent. For Appellant: Mr.T.R.Ravi
For Respondent: Mr.A.Kumaraguru
PRAYER: Appeal against the order of acquittal passed by the learned Judicial Magistrate, Ambur, North Arcot Ambedkar District in STC.No.38 1 of 1994 dated 28.11.1995.
:J U D G M E N T
This is an appeal against acquittal filed by M/s.Ambur Steel Traders represented by its partner AHM.Abdul Khader against the acquittal of C.Norrulla, Building Contractor at No.12-C, Nazer Street, for an offence under Section 138 of the Negotiable Instruments Act ( hereinafter referred to as the Act) by the Judicial Magistrate, Ambur in STC.No.381 of 1994.
2. As far as the facts are concerned, there is no dispute between the parties and hence I am constrained to briefly narrate the case of the prosecution.
i) The complainant was a Stockist of Rasi Cements and the accused was a Contractor. The accused had purchased cements and other items from the complainant and issued two cheques for Rs.12,000/- and 6,000/- dated 13.11.1993 and 6.12.1993, respectively. The details of which need not be gone into, since the issuance of those cheques had been admitted by the accused. ii) The further case of the prosecution is that on presentation, the cheques were dishonoured on account of Stop Payment. In continuance of the above, the complainant had issued a notice as contemplated under the Act and had given 15 days time, enabling the accused to repay the said amount. Though the notice was returned with an endorsement that intimation served, the accused apparently did not receive the same. The case of the accused is one of denial.
3. The learned Judicial Magistrate, Ambur, after hearing both sides had acquitted the accused on two grounds.
The first ground being that the cheque had been dishonoured on account of the advice of Stop Payment given by the accused to the bankers; and The second reason is that as contemplated under the Act, notice has not been duly served on the accused
4. The learned Magistrate, in so far as the first ground is concerned, has relied on a decision of the Kerala High Court reported in Bagirthi vs. Beena (1992 2 MLW 131), which says that the cheque dishonoured, on account of stop payment would not attract the provisions of Section 138 of the Negotiable Instruments Act.
5. But however, the Supreme Court in M/s.Modi Cements Limited Vs. Shir Kuchil Kumar Nandi (1998-2-LW(Crl) 417), has categorically held in paragraph 20 as follows:
"On careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act drawn presumption of dishonesty against drawer of the cheque if he without sufficient funds to his credit in his bank account to honour the cheque issues the same and, therefore, amounts to an offence under Section 138 of the Act. For the reasons stated here in above, we are unable to share the view expressed by this Court in the above two cases and we respectfully differ with the same regarding interpretation of Section 138 of the Act to the limited extent as indicated above." In the present case on the date of presentation of the cheque, there was only Rs.487/- to the credit of the accused and as such the said amount was not enough to meet the amounts mentioned in the cheques. Consequently, in view of the decision of the Supreme Court cited supra, I hold that the finding of the learned Magistrate is against the provisions of Section 138 of the act.
6. As regards the second point that the notice to the accused has not been duly served but it had been returned unserved with an endorsement as intimation served, the Supreme Court in K.Bhaskaran Vs. Sankaran Vidhyan Balan and another (2000-1-L.W.(Crl) 299), has held in paragraph 22 that it is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him and again at Paragraph 24 it has been held that if the notice has been despatched by post, then it can be deemed to have been served on the sendee, unless he proves that it was not really served and that he was not responsible for such non-service. In the present case, the accused has not taken such a plea and consequently, I hold that this reason is also wrong. Hence I am constrained to set aside the order of acquittal and remand the matter back to the trial Court for fresh disposal.
7. Though this is an appeal against acquittal, I can straightway allow the appeal and convict the accused, but however in view of the fact that though notice has been served on the accused, he had neither appeared before this Court nor has engaged a counsel to appear on his behalf. Hence this Court after adjourning the matter on two occasions has appointed Mr.Kumarguru as Amicus Curia, who assisted the Court in disposing of this appeal.
8. In the result, I deem it fit that the matter be remitted back and after issuance of summons to the accused, the learned Magistrate is directed to dispose of the matter as expeditiously as possible. However, the accused is at liberty to agitate other points if any. With the above observations, the appeal is allowed.
1. The Judicial Magistrate,
2. -Do- Thro' The Chief
North Arcot Vellore.
Crl.Appeal No.358 of 1996
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