9911796707
TMI Blog2015 (6) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint for the offence under Section 138 of the Negotiable Instruments Act was given by the complainant in the year 2003, whereas, a complaint-Ex. D.4 was lodged by the petitioner/accused only in the year 2004 i.e., on 15.03.2004 alleging that the cheque was stolen by the complainant i.e., nearly one year after the issuance of the statutory notice dated 15.02.2003. If the cheque was really stolen by the complainant as alleged by the accused, it is not known as to what prevented the accused from giving the complaint immediately after the incident and what is the purpose of giving the complaint belatedly, that too, nearly one year after the issuance of the statutory notice and this would clearly go to show that the complaint given by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtnership firm in the name and style of SMJ Freight Movers and it was dissolved on 02.11.2001 and therefore, the accused has to pay Rs. 15,00,000/- to the complainant. For that amount, the accused has issued a cheque for Rs. 16,72,000/-, dated 18.10.2002. When the cheque was presented for collection on 07.02.2003, it returned with an endorsement insufficient funds on 08.02.2003. On 15.02.2003, the complainant issued a statutory notice. Since, the accused has not come forward to pay the cheque amount, a private complaint was lodged and the same was taken in C.C. No. 2303 of 2003 on the file of the XV Metropolitan Magistrate, George Town, Chennai. After trial, the Trial Court convicted the petitioner/accused under Section 138 of the Negotiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... journment was given twice and thereafter, the matter is posted for dismissal on 09.06.2015. Even on that date, there was no representation for the petitioner. With a view to give one more opportunity to the petitioner, the matter was directed to be listed next week and that is how this matter is posted today (i.e., 25.06.2015). If the petitioner's counsel has given change of vakalat, the accused should have utilised the adjournment time granted to engage a new counsel, but, so far, no other counsel has entered appearance on behalf of the petitioner/accused. This kind of practice is deprecated by the Hon'ble Apex Court in the judgment in K.S. Panduranga v. State of Karnataka [2013] 3 SCC 721 and has held that the Court may, as a matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter but it is not bound to do so and further, the Court can decide the matter even in the absence of the accused or his counsel, but, only criteria is that the case should be decided on merits in the absence of the accused and the Court cannot dismiss an appeal for non- prosecution simpliciter without examining the case on merits. In the light of the decision cited supra, as the case is pending from 2008 and the petitioner/accused is successful in dragging on the case, the main Criminal Revision Case itself is taken up and disposed of on merits, after hearing the learned counsel appearing for the respondent and also after perusing the materials available on record. 4. Mr. R. Vijayaraghavan, learned counsel appearing for the respondent/compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused, the cheque was not properly accounted for. Further, according to the accused, when the amount to be paid by the accused is not correctly proved, the defence ought not to have been accepted and hence, both Courts below have wrongly come to the conclusion and convicted the accused. 6.Per contra, it is the case of the respondent/complainant that he admits that he was a partner in the partnership, for which, he has invested a huge sum and the dissolution of partnership firm was also accepted. Therefore, when it is proved that the cheque was issued by the petitioner/accused towards the discharge of any liability the initial presumption under Section 139 of the Negotiable Instruments Act will come into operation and it is in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , nearly one year after the issuance of the statutory notice dated 15.02.2003. If the cheque was really stolen by the complainant as alleged by the accused, it is not known as to what prevented the accused from giving the complaint immediately after the incident and what is the purpose of giving the complaint belatedly, that too, nearly one year after the issuance of the statutory notice and this would clearly go to show that the complaint given by the petitioner/accused is only an afterthought and this discrepancy in respect of the very averment regarding the theft of cheque has been rightly pointed out by the Courts below. Apart from that, the small discrepancy with regard to the amount found in the Income Tax Return filed by the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
