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Nagappan v. Arunachalam - Criminal Appeal No.1129 of 2001  RD-TN 1144 (27 March 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR. JUSTICE P. MURGESEN
Criminal Appeal No.1129 of 2001
Nagappan .. Appellant
Arunachalam .. Respondent Criminal Appeal filed under Section 378 of Crl.P.C. against the order dated 6.6.2001 passed in C.C.No.464 of 1997 by the Judicial Magistrate, Manaparai.
For Appellant : Mr.Mohideen Basha for Mr.N.Nithianandam
For Respondent : Mr.N.R.Blaji for
:J U D G M E N T
The appeal is directed against the order dated 6.6.2001 passed in C.C.No.464 of 1997 by the Judicial Magistrate, Manaparai.
2.The brief facts of the case of the complainant are as follows: a)The complainant/appellant is the proprietor of New Archana Home appliances at Pudukottai. The respondent/accused purchased goods worth Rs.3,58,687/- from the appellant and he paid a sum of Rs.41,135/-. For the balance amount, the accused issued a post dated cheque for Rs.3,17,452/-. When the cheque was presented for realisation through City Union Limited., Branch at Manaparai, the cheque was returned with an endorsement 'Account Closed'. Since the accused was evading repayment, the complainant issued a notice to the accused on 24.10.1997. Though the accused acknowledged the notice, has not complied with the demand made by the complainant. Hence the complaint.
3.The complainant in order to bring home the charges against the accused, examined P.Ws 1 to 3 and filed Ex.P1 to P7. On the side of defence, the accused was examined as D.W.1 and marked Ex.D1- the letter written by the complainant to the accused on 20.6.1995.
4.On consideration of the entire evidence on record, the learned Judicial Magistrate, Manaparai, found the accused not
guilty and acquitted him of the charges levelled against him.
5.Challenging the judgment of the learned Judicial Magistrate, Manaparai, the above appeal has been filed by the complainant /appellant.
6.Point for Determination:
1.whether the respondent has committed the offence under Section 138 of the Negotiable Instruments Act ?
POINTS FOR DETERMINATION:
7.The complainant was running Home Appliances and also doing Chit Fund transactions, the accused was one of the subscriber. For the goods purchased, the accused gave the posted dated cheque -Ex.P2 to the complainant for a sum of Rs.3,17,452/-. P.Ws 2 and 3 are the Bank Officials and the accused was having Account with P.W.3's Bank. When the cheque was presented for relisation of cash, the same was dishonoured. The said intimation is Ex.P3. Hence the complainant through his counsel sent a notice Ex.P4 to the accused. Ex.P5 is the acknowledgment given by the accused.
8.Then the accused sent Ex.P6 letter to the complainant demanding the particulars of the properties purchased by him. Ex.D1 is the letter written by the complainant to the accused asking him to repay the amount and also to sign in the pro-note along with two blank cheques.
9.It is stated that the complainant was also running the Chit Trading Company and the accused was one of the subscriber. The complainant gave two cheques and requested the accused to present them on different dates and sent letter Ex.D2 to this effect. Then the complainant also sent a letter to the accused asking him to settle the issue by paying a sum of Rs.3,20,000/- under Ex.D5. Exs.D3 and D4 are the cheques issued by the complainant dated 20.11.1996 and 30.11.1996 for a sum of Rs.1,00,000/- each. Then on 3.3.1997, the complainant wrote a letter to the accused/respondent demanding payment on the chit transactions. Ex.D7 is the letter written by the complainant to the accused dated 4.10.1997 asking the accused to pay the chit amount and to settle the matter.
10.In the letter dated 20.6.1995 Ex.D1, with regard to the chit transaction, the complainant requested the accused to repay the amount and also to sign in the pro-note and to give two blank cheques. Further Exs.D1, D2, D5, D6 and D7 would show that there were exchange of letters between the parties and those letters would speak about the chit conducted by the complainant, the blank cheques to the respondent/ accused and requested him not to present the cheques before the particular date.
11.The chit transaction between the parties is not dispute. But the complainant herein claimed that the accused purchased some electrical goods under Ex.P1 series from him and for that he paid some amount by way of cash and gave a cheque -Ex.P2 for Rs.3,17,452/- towards the balance amount. Previously, the accused was having bank account with D.W.3. So, when the cheque was presented, since he was not maintaining any 'Account' in that Bank, the cheque was dishonoured. It is the case of the respondent/accused that he purchased the goods worth for a sum of Rs.1,56,075/- only and he had not purchased the goods to the tune of Rs.3,17,452/-, as alleged by the complainant.
12.P.W.1 claims that he is the Manager of P.W.4. But, he is not able to speak about the transactions between the parties and he is unable to say whether he is present on 31.12.1996, when the goods were delivered to the accused. He is also not able to say, whether the accused paid the sum of Rs.41,135/-. He however deposed that after 31.12.1996, the accused was not given any goods on credit basis. Since P.W.1 was not able to speak about the transactions between the parties, P.W.4- the complainant was examined. P.W.4 said that P.W.1 was not his Manager at any time. So, when P.W.1 was examined as a Manager of the complainant, P.W.4 disowned him at a later stage.
13.It is seen that a letter was written by the complainant dated 31.12.1996 stating that the accused was liable to pay a sum of Rs.1,56,075/-. But the complainant denied the said letter and even went to the extent of saying that there was no correspondence in this regard. However, this letter was written in the complainant's company Letter Pad. The respondent/accused sent a reply letter Ex.P6 on 17.11.1997 to the complainant asking him to give the particulars of the amount due to the complainant. Instead of furnishing the particulars, the complainant has come forward with the complaint.
14.Ex.D8 would show that the accused/respondent has to repay only a sum of Rs.1,56,075/-. The said amount includes the goods sent for a sum of Rs.74,265 + 9985 + 48700 =1,32,950/-) along with the previous balance of Rs.23,125/-. It is seen that four bills were prepared on 31.12.1996 and the bills for the transaction shows different numbers namely Nos.9272, 9273, 4217 & 4218 as detailed below:
Bill Nos. Date Amount Rs. 8805 RC No.3881062 19.09.1996 82,790.00 3999 RC.No.3881062 19.09.1996 40,822.00 9120 RC.No.3881068 22.11.1996 23,125.00 9272 RC.No.3881062 31.12.1996 74,265.00 9273 RC.No.3881062 31.12.1996 9,985.00 4217 RC.No.3881062 31.12.1996 47,600.00 4218 RC.No.3881062 31.12.1996 80,000.00 If really the goods were purchased on the same date, certainly serial number of the Bills would have been in chronological order. This would go to show that the case of the complainant is not true. Further, in the counter affidavit it is stated that the complainant was doing the chit transactions illegally.
15.I find there is force in the submissions made by the learned counsel for the respondent/accused. It is also seen that there is no legally enforceable debt as claimed by the complainant.
Hence the complainant is not entitled to get the relief under Section 138 of the Negotiable Instruments Act.
16.Accordingly, the appeal filed by the appellant/ complainant fails and the same is dismissed, confirming the order of acquittal dated 6.6.2001 passed in C.C.No.464 of 1997 by the Judicial Magistrate, Manaparai. To
Judicial Magistrate, Manaparai.
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