Sri Devi Company v. N. S. S. Jayaraj — 1998 DIGILAW 1249 (MAD)

Judgment :- V. BAKTHAVATSALU, J. For the This revision is directed against the order passed by the Judicial Magistrate No. III, Erode, in C.C. No. 334 of 1993, dated November 25, 1994. The revision petitioner filed a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"), against the respondent/accused alleging that the respondent issued a cheque for Rs. 1, 66, 723.50 on January 25, 1993, and that when the cheque was presented in the bank on June 30, 1993, the cheque was dishonoured on the ground "insufficient funds" and that after issuing legal notice, the revision petitioner has filed this complaint. The learned Magistrate on a consideration of oral and documentary evidence, convicted the respondent to pay a fine of Rs. 21, 000. It is further ordered that a sum of Rs. 20, 000 out of Rs. 21, 000 should be paid as compensation to the complainant. In this revision, the revision petitioner contended that the trial court ought to have imposed sentence on the accused commensurate with the cheque amount and that therefore, the above sentence has to be enhanced. It is admitted that the respondent has filed appeal C.C. No. 1 of 1995 on the file of the Additional and District Sessions judge, Erode, against the sentence of fine imposed on him by the court and that the said appeal is pending. The question that arises for consideration in this revision is, whether the sentence of fine imposed on the respondent is liable to be enhanced. Learned counsel for the revision petitioner contended that the trial court ought not to have held that the respondent paid Rs. 20, 000 as per the compromise and that he is liable to pay the balance sum of Rs. 20, 000 and that in the police station a compromise was effected in and by which another partner of the complainant company agreed to receive Rs. 40, 000 for the cheque amount. It is contended by the revision petitioner that it is not open to the trial court to come to the said conclusion when once it is proved that the accused issued cheque for Rs. 1, 66, 723.50. The trial court has also held in paragraph 9 of the judgment that as per exhibits P-7 to P-11, it is proved that the accused purchased materials for the above amount. 1, 66, 723.50. The trial court has also held in paragraph 9 of the judgment that as per exhibits P-7 to P-11, it is proved that the accused purchased materials for the above amount. Learned counsel further contended that the trial court has given a finding as though the complainant is entitled to Rs. 40, 000 only as per the compromise and that therefore, the findings given by the trial court on the above aspect are not sustainable in law and that as the cheque was issued for more than Rs. 1, 00, 000 the trial court ought to have imposed fine equivalent to the cheque amount.On the other hand, learned counsel for the respondent contended that the trial court on consideration of evidence adduced by the accused has come to the conclusion that the accused is liable to pay Rs. 40, 000 only and that under section 139 of the Act, the accused is entitled to rebut the presumption and that the evidence of D.W. 1 has to be accepted. This revision is filed only to enhance the sentence. The appeal filed by the respondent is pending. It is open to the respondent/accused to contend before the appellate court that the conviction and sentence imposed on him by the trial court are not proper and valid. In the above circumstances, it is not open to the revisional court at this stage to appreciate the evidence let in by both parties for deciding the question as to whether the respondent is liable to pay the entire amount stated in the cheque. The question whether the respondent is liable to pay the entire amount stated in the cheque and the question whether the finding of the trial court on the basis of the evidence let in by the accused that the accused is liable to pay Rs. 40, 000 only are vitiated by any error or illegality, cannot be considered in this revision, since the appeal filed by the respondent is pending in another court. I am unable to accept the contention raised by the revision petitioner that the sentence imposed on the accused is inadequate. Section 138 of the Act states that the court is empowered to impose punishment of imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both. Section 138 of the Act states that the court is empowered to impose punishment of imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both. The above section does not mandate the court to impose a minimum punishment. The words "which may extend to twice the amount of the cheque" will not compel the court to impose fine to the extent of the cheque amount. On the other hand, the plain meaning of the above section will show that it is purely within the discretion of the court to impose imprisonment or fine. As the section does not mandate the trial court to impose the minimum sentence of imprisonment or minimum sentence of fine, it is not open to the complainant to contend that the trial court should have imposed the sentence of fine equivalent to the cheque amount or twice the amount of the cheque. Therefore, I hold that the conviction and sentence imposed on the accused cannot be said to be inadequate.Learned counsel for the revision petitioner relies upon a decision in M. Narayanan v. State of Kerala. It is held in the above decision as follows (page 1118) : "No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip." The above decision will not assist the case of the revision petitioner in any way. It is open to the revision petitioner/complainant to file a suit against the accused for recovery of the cheque amount. The civil court is not bound to accept the findings given by the criminal court in this case for coming to the conclusion that the accused is liable to pay Rs. 40, 000 only and that Rs. 20, 000 out of Rs. 40, 000 was already paid by him. Inasmuch as the findings rendered by the criminal court regarding the liability of the accused and the quantum of amount payable by him are not binding on the civil court, the finding of the trial court that the accused is liable to pay Rs. 40, 000 will not affect the right of the complainant in any way. Inasmuch as the findings rendered by the criminal court regarding the liability of the accused and the quantum of amount payable by him are not binding on the civil court, the finding of the trial court that the accused is liable to pay Rs. 40, 000 will not affect the right of the complainant in any way. For the above reasons, I hold that there are no merits in this revision and that it is liable to be dismissed. In the result, the criminal revision case is dismissed.