- (1.)The accused are the revision petitioners herein. The respondent herein filed private complaint against the accused under Section 138 of the Negotiable Instruments Act, by saying that the accused partnership firm had credit dealings and purchased hosiery products worth Rs.25,23,175/- vide invoices bearing Nos.200102 to 00014 dated 21.4.2001 and the 2nd accused issued five cheques on different dates on 03.09.2001, 06.09.2001 and 12.09.2001 on behalf of the accused concerned towards discharge of the outstanding. The complainant deposited first three cheques on 21.01.2002 for encashment and they were returned on 05.02.2002 with an endorsement 'account closed' which was duly informed to the complainant by the bankers on 11.02.2002. On being informed so, the complainant issued legal notice on 25.02.2002 and the same was acknowledged by other accused on 05.03.2002, while accused 2 and 4 returned it. The accused neither paid the amount within fifteen days, but issued reply on 23.03.2002 wherein the outstanding and the issuance of the cheques are admitted but it is falsely stated that the cheques are not filled up and cheques are issued undated with an understanding that it should be presented after getting the approval of the accused. The complaint further says that the cheques are dated by the accused and the goods are taken delivery after satisfying the quality and the goods are thereafter exported at the cost and risk of the accused and the complainant is in no manner connected with the dispute between the accused and the alleged Srilankan buyer and the complainant is entitled to receive his money back and on the failure of the accused to discharge the liability, the accused committed the acts constituting the offence punishable under Section 138 of the Negotiable Instruments Act.
(2.)The complainant has in order to prove the case as narrated in the complaint examined the manager of the complainant firm and his witness as PW1 and PW2 and produced the copy of the Board resolution, Invoice bill, cheques in question, copy of the Advocate notice, acknowledgment card, reply notice, statement of the account and copy of the order dated 17.07.2002 of I Additional District Munsif Court as Exs.Pl to P21 and the defendant examined DW1 and DW2 and produced copy of the fax letter, acknowledgment letter, reply letter, Dhanalakshmi Bank letter, statement of accounts, letter from the complainant to the accused, Auction notice, police department notice as Exs.Dl to D11. The trial court has, on the basis of the evidence adduced before the same, arrived at a conclusion that the notice dated 25.02.2002 is the statutory notice and notice dated 3.12.2001 is not the statutory notice and the accused committed the offence under Sections 138 and 142 of the Negotiable Instruments Act by having failed to return the goods and failed to discharge his liability in spite of enough opportunity given by the complainant and found the accused guilty and convicted and sentenced the accused 2 to 4 partners. Aggrieved against the same, the accused preferred C.A.No.66 of 2006 and the appellate court dismissed the appeal by confirming the judgment and conviction of the trial court. Hence this criminal revision by the accused before this court.
(3.)The learned counsel for the accused seriously questioned the validity of notice dated 25.02.2002 purported to be the statutory notice and on that basis challenged the maintainability of the complaint as barred by limitation. It is further seriously argued that the cheques in question are issued only as security for the purchase from the complainant and the same are not issued for discharging any legally enforceable liability and the same are misused for unlawful enrichment.