IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23-5-2007 CORAM THE HON'BLE MR.JUSTICE P.R. SHIVAKUMAR Criminal Appeal NO.1394 of 2002 Mathai ... Appellant/Petitioner vs Seenivasan ... Respondent/Respondent Appeal filed under Section 378 Cr.P.C against the order passed in C.C.No.138 of 1994 on the file of Judicial Magistrate No.IV, Vellore dated 17.8.1994. For appellant : Mr.M. Veluswami For respondent : M/s T.S. Gopalan & Co JUDGMENT The complainant, whose complaint under Sec.200 Cr.P.C preferred for an offence punishable under Sec.138 of Negotiable Instruments Act was dismissed, has come forward with this present appeal against the judgment of acquittal passed by the learned Judicial Magistrate No.IV, Vellore on 17.8.1994 in C.C.No.138 of 1994. 2. According to the complainant, the respondent herein owed a sum of Rs.25,000/- towards tyre retreading charges and he issued a cheque for the said sum on 31.1.1994 drawn on Indian Overseas Bank, Allapuram Branch, Allapuram, Vellore. The said cheque, when the same was presented for collection through the banker of the appellant/complainant, was returned on 2.2.1994 with an endorsement "Funds insufficient", Even after the said fact was brought to the notice of the respondent/accused, and a demand for payment was made by serving a notice in writing, he did not make payment within the statutory period of fifteen days and hence the offence punishable under Sec.138 of Negotiable Instruments Act has been committed by the respondent/accused. Such complaint was lodged before the said Magistrate under Sec.200 Cr.P.C. 3. After recording the sworn statement of the complainant, the same was taken on file as C.C.No.138 of 1994. After service of process, the respondent/accused entered appearance, denied the allegations constituting the above said charge and pleaded not guilty. https://hcservices.ecourts.gov.in/hcservices/ 4. In the trial, two witnesses were examined and Exs.P.1 to P.6 were marked on the side of the complainant. The incriminating circumstances found in the evidence adduced on the side of the prosecution (complainant) were explained to the respondent/accused and his explanation for the said parts of evidence were recorded under Sec.313 Cr.P.C. No witness was examined and no document was marked on the side of the respondent/accused. 5. The learned Judicial Magistrate, after going through the evidence, came to the conclusion that the appellant/complainant had not proved the charge beyond reasonable doubt and hence acquitted the respondent/accused by her judgment dated 17.8.1994. Aggrieved by the said judgment of acquittal, the appellant herein, originally preferred a revision before the learned Principal Sessions Judge in Crl.R.C.No.42 of 1994 and the same came to be dismissed holding that the revision was not competent and an appeal alone would lie. Hence the present appeal has been preferred by the appellant/complainant, challenging the correctness of the judugment of acquittal passed by the learned Judicial Magistrate NO.IV, Vellore. 6. This Court heard the submissions of the learned counsel for the appellant and the learned counsel for the respondent and also perused the materials available on record. 7. The mere fact that the cheque issued for the discharge of a debt or other liability has been returned by the bank for the reason that there was insufficiency of funds in the account on which the cheque was drawn or that the amount covered by the cheque exceeded the arrangements made by the drawer with the bank concerned, will not be enough to constitute an offence punishable under Sec.138 of Negotiable Instruments Act. The same is one of several ingredients of the said offence. The offence becomes complete only on the failure of the drawer to make payment within 15 days after the receipt of statutory notice under Sec.138 of the Act informing him of the fact of dishonour of cheque and demanding payment. In this case, admittedly, intimation regarding dishonour of cheque was received by the appellant/complainant on 2.2.1994. It is contended on behalf of the appellant/complainant that the same was informed to the respondent/accused by a telegram on the very same day, which according to him, was served by the respondent/accused on 3.2.1994. 8. Sec.138(b) which deals with the nature of demand to be made for prosecuting the drawer of the cheque reads as follows: 138(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque (within thirty days (previously 15 days during the relevant period) of the receipt https://hcservices.ecourts.gov.in/hcservices/ of information by him from the bank regarding the return of the cheque as unpaid;" 9. A single Judge of this Court in "M. Murugan vs Queen Jhansi Vetrikodi" reported in 2004-2-L.W(Crl)600 has held that a telegram intimating the dishonour is not proper compliance of the requirement of demand by Notice in writing under Sec.138(b) of Negotiable Instruments Act. On that short point itself, the appeal is bound to fail. 10. Therefore, this Court comes to the conclusion that there is no error or infirmity in the finding of the trial Court holding that the offence punishable under Sec.138 of Negotiable Instruments Act has not been proved beyond reasonable doubt and that the respondent/accused is entitled to be acquitted. There is no merit in the appeal and no scope for interference with the jugment of the trial court. Hence the appeal deserves to be dismissed. Accordingly, the appeal shall stand dismissed. Sr Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Judicial Magistrate No.IV, Vellore 2. The Principal Sessions Judge, Vellore 1 cc to Mr.M.Veluswami, Advocate, SR.7223/08 1 cc to Mr.T.S.Gopalan & Co., Advocate, SR.6956/08 sa (co) dv/28.2. Criminal Appeal NO.1394 of 2002 https://hcservices.ecourts.gov.in/hcservices/