Jayalakshmi Weaving Works vs M. Sivasamy

A. Packiaraj, J.—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 u/s 138 of the

Negotiable Instruments Act.

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 u/s 391, Cr.P.C, praying for a permission to adduce additional evidence.

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 u/s 138 of the Negotiable Instruments Act was

initiated against the accused.

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 u/s 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 u/s 138 of the Negotiable Instruments Act. It is at this juncture

that the respondent/complainant herein had filed an application u/s 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 mat those cheques also have

been dishonoured and a prosecution u/s 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 of ""legally enforceable debt"".

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 u/s 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.

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.