IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15-02-2002
CORAM
THE HONOURABLE MR.JUSTICE A.PACKIARAJ
Crl.R.C.No.1334 of 1998 and Crl.M.P.No.10222 of 1998
1. M/s.Jayalakshmi Weaving Works
rep. by its Managing Partner
A.Damodaram
Chirakkal, Kannur, Kerala State
2. A Damodaran .. Petitioners.
Versus
M.Sivasamy .. Respondent.
! For Petitioners: Mr.P.Mani
PRAYER in Crl.R.C.No.1334 of 1998: Revision against the order dated 2
.11.98 passed in Crl.M.P.No.7750 of 1998 in C.A.No.8 of 1994 on the
file of the First Additional Sessions Judge and Chief Judicial
Magistrate, Salem.
: O R D E R
This revision has been filed by the petitioner herein against the
order passed by the First Additional Sessions Judge cum Chief Judicial
Magistrate, Salem in Crl.M.P.No.7750 of 1998 in C.A.No.8 of 1994 against their
conviction for an offence under Section 138 of the Negotiable Instruments Act.
2. At the outset, I may state that the judgment of the trial Court
has not been filed in this revision and hence, this Court is not able to
appreciate the contentions of the rival parties and the discussions made by
the trial Judge, while finding the accused guilty. However for the purpose of
disposing of this revision, the learned counsel for the petitioners restricts
himself only to the orders passed by the First Additional Sessions Judge in
Crl.M.P.No.7750 of 1998 filed by the complainant/respondent under Section 391
Cr.P.C, praying for a permission to adduce additional evidence.
3. The facts of the prosecution as revealed in the complaint indicates that
the first accused is a firm doing business of manufacturing High Class
Handloom piece goods and the second accused is the Managing Partner of the
firm Jeyalakshmi Weaving Works at Chirakkal, Cannanore. The complainant
herein is a Yarn Merchant doing business in yarns and clothes of which the
accused is a customer and had purchased clothes on several occasions totalling
to rupees two lakhs and odd. The last date of the supply of the goods,
according to the petitioners/ accused was on 4.12.87, for which the accused is
said to have issued a cheque for Rs.50,000/- dated 28.4.1991. When the said
cheque was presented in the bank, the same was dishonoured on the ground of
insufficiency of funds and consequently proceedings under Section 138 of the
Negotiable Instruments Act was initiated against the accused.
4. The petitioners/accused herein took the plea that the goods were
supplied to them on 4.12.87, while the cheque was dated 28.4.1991 and
consequently, the cheque having been issued after three years, it does not
come under the category of “legally enforceable debt” as contemplated under
the explanation under Section 138 of the Negotiable Instruments Act as it is
time barred. But however, it appears that the learned Magistrate has not
accepted his plea and has convicted the petitioners. It is again at the
Appellate stage, the same stand had been taken by the petitioners herein and
consequently according to the petitioners, they cannot be convicted for an
offence under Section 13 8 of the Negotiable Instruments Act. It is at this
juncture that the respondent/complainant herein had filed an application under
Section 391 Cr.P.C before the Appellate Court, stating that actually the total
debt of the accused amounts to Rs.2,61,848/- and as a part payment, the
petitioners/accused had given two cheques for Rs.50,000/- dated 30.10.90,
which is within three years from the last date of supply of the goods and
consequently, the accused has acknowledged the existing debt and hence the
period of limitation would start only from 30.10 .90. As a matter of fact the
complainant would also place on record that those cheques also have been
dishonoured and a prosecution under Section 138 was initiated against the
accused in C.C.No.57 of 1991 and therefore the complainant (respondent herein)
wanted to adduce evidence in relation to the issuance of those cheques, which
indicates the acknowledgment of the debt as on 30.10.90 within a period of
three years and consequently, the present prosecution comes within the
explanation in Section 138 of the Negotiable Instruments Act “legally
enforceable debt”.
5. A counter was filed by the accused herein stating that the
petition has been filed belatedly and the witnesses have been cross examined
at length even during the course of trial before the Magistrate; that the
respondent/complainant herein had not let in any evidence to this effect and
consequently petition under Section 391 Cr.P.C has to be dismissed. However,
the learned Sessions Judge after going through the records had allowed the
petition. It is against this order the present revision has been filed.
6. Though notice has been sought to be served on the respondent/
complainant, notice was not served and the matter had been periodically
adjourned. Hence I am constrained to go through the records, hear the
petitioner and pass orders.
On a perusal of the records, I find that two cheques have in
fact been issued by the accused on 30.10.90 and according to the complainant
those cheques are said to be as part payment of this existing liability or
debt and consequently he had wanted to adduce evidence relating to the same.
It is the further contention of the learned counsel that these cheques were
already in existence and that they were the subject matter of another case and
consequently those records have not been brought on record in this case at the
relevant time. Since I feel that those cheques are not created for the
purpose of this case and they were already existing at the time when the
prosecution was launched in relation to this case and the accused has till
date not disputed about the factum of issuing such cheques in favour of the
complainant, I do not feel any illegality committed by the learned Sessions
Judge in allowing the petition filed by the respondent herein. Therefore, in
such circumstances, I hold that this Court cannot say that the prosecution is
being allowed to fill in the lacunae. But it is only in the interest of
justice and in order to arrive at a just decision, this Court finds it
necessary that an opportunity should be given to the respondent to adduce
additional evidence and also permit the accused to cross examine the
complainant. However, it is open for the accused to take any defence to
discredit the version of the prosecution and the Court is directed to decide
on the evidence without being influenced by any observations made by this
Court. In the result, this revision is dismissed with the direction that the
appeal should be disposed of as early as possible. Consequently, connected
Crl.M.P is closed.
15-02-2002
Index:Yes/No
csh
To
1. The Judicial Magistrate V
Salem.
2. -Do- Thro The Chief Judicial
Magistrate, Salem.
3. The Principal District Sessions
Sessions Judge, Salem.
A.PACKIARAJ,J.
Pre-Delivery Order in
Crl.R.C.Nos.1334 of 1998
15-02-2002