IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.06.2008 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Crl.R.C.No.674 of 2006 R.Kulandaivelu ...Petitioner/Accused Versus Uraiyur Cotton Company rep. by its Power of Attorney Agent D.Vetrivel Meenakarai Road Zamin Uthukuli Post Pollachi Taluk, Coimbatore District. ...Respondent/Complainant Criminal revision petition preferred against the Judgment dated 19.05.2006, made in C.A.No.352 of 2005, on the file of the Additional Sessions Judge (Fast Track Court No.2), Coimbatore, confirming the judgment dated 25.07.2005, made in C.C.No.376 of 2001, on the file of the Judicial Magistrate No.1, Pollachi and acquit the petitioner. For Petitioner : Mr.P.M.Duraiswamy For Respondent : Mr.N.Kumanan Government Advocate (Crl. side) JUDGMENT The revision petitioner stands convicted for an offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo six months simple imprisonment and also to pay a compensation of Rs.7,37,000/- in C.C.No.376 of 2001, by the learned Judicial Magistrate-I, Pollachi. The said conviction and sentence were confirmed by the Additional Sessions Judge (Fast Track Court No.II), Coimbatore, in C.A.No.352 of 2005. Aggrieved by the said conviction and sentence, this revision has been preferred. 2. The case of the complainant is that P.W.3 is the power agent of Uraiyur Cotton Company and the accused purchased yarn and towards the due, two cheques were given for a sum of Rs.5,04,000/- and Rs.2,33,700/-. When the cheques were presented in the bank on 24.11.2000 by the complainant, the cheques were returned for "insufficient fund" and on request, the cheques were again presented on 09.05.2001 and again the cheques were returned for "insufficient fund". A statutory notice was sent to the accused on 23.05.2001, but the accused neither replied to the notice nor made any repayment. https://hcservices.ecourts.gov.in/hcservices/ Therefore, a complaint was filed against the accused. 3. The trial Court and the appellate Court after considering the evidence convicted the accused. 4. The learned counsel for the petitioner submitted that both the courts below failed to follow the decision rendered by the Honourable Supreme Court reported in Sadanandan Bhadran vs. Madhavan Sunil Kumar (1998(3) Crimes 217 (SC)). 5. The learned counsel further submitted that though it has been admitted by the complainant, P.W.3, that twice cheques were presented and twice notices were sent and received by the accused, no case was filed on the basis of the first notice sent to the accused. The learned counsel for the respondent submitted that though cheque was presented twice, notice was issued to the accused only once, it was only a slipshod answer given by P.W.3 during the cross examination. 6. The learned counsel for the respondent further submitted that the burden is on the accused to establish that notice was sent twice and cause of action arose twice. But the accused has not let in any evidence or he has not produced any first notice sent to him. 7. This Court considered the submissions made by both parties. Admittedly the cheques had been presented twice. It was presented first and returned on 24.11.2000 and again presented on 04.05.2001 and returned on 07.05.2001. The notice sent on 23.05.2001 has been marked as Ex.P.17. But the notice sent on the basis of the cheques returned on 24.11.2000 have not been marked by either side. Now the question that arise is whether the notice was sent to the accused for the cheques returned on 24.11.2000. P.W.3 in the chief examination has not stated about sending notice for the return of cheques on 24.11.2000, but in the cross examination, he had specifically admits that a lawyer's notice was sent after the return of cheques on 24.11.2000 and also further added that the accused after receiving the notice, neither replied nor paid the amount. Therefore, the cheques were again presented and the accused received notice for the second time. This part of the evidence in the cross examination of the complainant/P.W.3 establishes the fact that the notice was sent immediately after the cheques were returned on 24.11.2000, and they were received by the accused and as such cause of action arose at that point of time itself. Though in the re-examination for which it was objected by the defence, it is elicited that except Ex.P.17, no other notice was sent to the accused; it is not known as to how to eschew the answers given by P.W.2 in the cross examination. The answers given by the witnesses in the cross examination also form part of the evidence. Once a fact being admitted by the complainant himself, it is not necessary for the accused to establish the same fact with further evidence. It is also the principle of the criminal law that always any benefit should be given in favour of the accused. Therefore, this Court holds that on the basis of the cheques returned on 24.11.2000, notice has been sent to the accused https://hcservices.ecourts.gov.in/hcservices/ and the cause of action arose. The presentation of the cheques for the second time after five months of issuing notice is not permissible. As per the decision of the Honourable Apex Court rendered in Sadanandan Bhadran vs. Madhavan Sunil Kumar (1998(3) Crimes 217 (SC)), wherein it has been observed as follows: "Now, the question it how the apparently conflicting provisions of the Act, on enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right - and not cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque. But, once he gives a notice under clause (b) of Section 138 he forfeits such right for in case of failure of the drawer to pay his money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires." 8. As per the above decision, in this case as the respondent herein did not avail the earlier cause of action that arose in his favour, the subsequent filing of the complaint is not maintainable. 9. In view of the above said reasons, the conviction and the sentence imposed on the petitioner are set aside and the revision petition is allowed. Sd/- Assistant Registrar /true copy/ Sub Assistant Registrar ksr To 1.Judicial Magistrate-I, Pollachi 2.The Chief Judicial Magistrate, Coimbatore (For Information). https://hcservices.ecourts.gov.in/hcservices/ 3.The Additional District and Sessions Judge Fast Track Court No.2, Coimbatore. 4.The Principal Session Judge, Coimbatore (for information). + 1 cc to Mr.K.Kalyanasundaram, Advocate SR No.32715 + 1 cc to Mr.P.M.Duraisamy, Advocate SR No.32609 Crl.R.C.No.674 of 2006 SS(CO) JJM(14.07.08) https://hcservices.ecourts.gov.in/hcservices/