J. S. AGENCIES v. NAMAKKAL SOUTH INDIA TRANSPORTS — 1998 DIGILAW 1315 (MAD)

Judgment : M. KARPAGAVINAYAGAM. J. ( 1 ) - Both the Revisions and Criminal Original Petition are being disposed of by this common order as the parties are the same and these arise out of a single trial. ( 2 ) THE petitioners in Cr1. RC. No. 627 of 1997 were convicted for the offence under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act, in E. C. No. 6560 of 1995 on the file of VIII Metropolitan Magistrate, George Town, Chennai. As against the said conviction, the petitioners filed an appeal in C. A. No. 83 of 1997 on the file of VII Additional Sessions Judge at Chennai. The said conviction was confirmed and the appeal was dismissed. Hence, this Revision. ( 3 ) THE petitioners in Cr1. RC. No. 625 of 1997 were convicted under Section 138 of the Act in C. C. No. 6560 of 1997 on the file of VIII Metropolitan Magistrate. George Town. Chennai and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 30,000/- Having aggrieved over, the inadequacy of sentence, the complainant, the respondent herein filed a revision in Cr1. RC. No. 19 of 1997 on the file of VII Additional Sessions Judge at Chennai. The learned Sessions Judge, after hearing the parties, enhanced the sentence of fine from Rs. 30,000/- to Rs. 1,44,000/ -. As against the order of enhancement, the petitioners have filed this revision. ( 4 ) THE complainant filed a petition in Cr1. O. P. No. 17795 of 1997 under Section 482 Cr. P. C. before this court praying to set aside the findings rendered in C. A. No. 83 of 1997 and Cr1. RC. No. 19 of 1997 on the file of VII Additional Sessions Judge, to the effect that out of the cheque amount of Rs. 2,12,000/ - Rs. 1,40,000/- was already paid and that there is only a balance of Rs. 72,000/ -. ( 5 ) THE facts are these:- The petitioners, on 30-5-1995 issued a cheque, for Rs. 2,12,000/- in favour of the respondent towards the discharge of arrears of hire charges. The said cheque presented on 26-8-1995 was returned on 28-8-1995 as there was no sufficient funds in the account of the petitioners in the Bank. On 1-9-1995, the respondent sent a statutory notice to the petitioners. 2,12,000/- in favour of the respondent towards the discharge of arrears of hire charges. The said cheque presented on 26-8-1995 was returned on 28-8-1995 as there was no sufficient funds in the account of the petitioners in the Bank. On 1-9-1995, the respondent sent a statutory notice to the petitioners. In reply to the demand notice on 13-9-1995 the petitioners sent a notice stating that the petitioners were not liable to pay the cheque amount. In order to refute the contents of the reply notice dated 13-9-1995, the respondent again sent another notice on 30-9-1995 giving the details about the liability to be discharged by the petitioners. This was received by the petitioners. Thereupon again the petitioners sent a reply. Since the cheque amount was not paid by the petitioners despite demand within the statutory period, the respondent filed a complaint against the petitioners for the offence under Sections 138 and 141 of the Act. ( 6 ) TO prove the case of prosecution on the side of the respondent, P. Ws. 1 to 3 were examined and Exs. P1 to 13 were filed. ( 7 ) THE plea of the defence is that already entire cheque amount was paid by the petitioners to the complainant even before the presentation of the said cheque in the Bank. In order to establish this factor Exs. D 1 and D2 were marked. ( 8 ) ON conclusion of trial, the petitioners were found guilty for the offence under Section 138 of the Act and they were sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 30,000/ -. It was further directed that out of the said sum of Rs. 30,000/-, Rs. 28,000/-is to be paid to the complainant, the respondent herein as compensation. ( 9 ) THE lower appellate court though found the petitioners guilty, concluded on the strength of Exs. Dl and D2 that out of the cheque amount of Rs. 2,12. 000/ -. Rs: 1,40,000/- was already paid and that therefore the petitioners are liable to pay only the balance amount of Rs. 72,000/ -On the basis of this conclusion the lower appellate Court allowed the revision for enhancement of sentence filed by the complainant, by enhancing the fine from Rs. 30,000/- to Rs. 1,44,000/-viz, twice the balance of the cheque amount. Rs: 1,40,000/- was already paid and that therefore the petitioners are liable to pay only the balance amount of Rs. 72,000/ -On the basis of this conclusion the lower appellate Court allowed the revision for enhancement of sentence filed by the complainant, by enhancing the fine from Rs. 30,000/- to Rs. 1,44,000/-viz, twice the balance of the cheque amount. It is further directed by the lower appellate Court that the complainant is entitled to compensation of Rs. 1,00,000/- ( 10 ) THE above impugned orders have been challenged in these revisions and Criminal Original Petition. ( 11 ) I have heard Mr. Govindarajan, the counsel appearing for the petitioners in the revisions and Mr. T. Munirathina Naidu the counsel appearing for the respondent in the revisions and for the petitioner in Cr1. O. P. No. 17795 of 1997. ( 12 ) THE main thrust of the argument by the counsel for the petitioners in the revisions is that both the Courts below have failed to consider that the entire cheque amount was paid to the complainant and the same was established by the petitioners by producing Exs. Dl and D2 and two reply notices sent by them. It is also contended that the lower appellate Court having given a finding that Rs. 1,40,000/ -was paid out of the cheque amount of Rs. 2. 12. 000/- ought to have acquitted the petitioners, since even before the presentation of the complaint the petitioners sent a reply referring about, the receipts issued by the complainant of the cheque amount on three occasions. At any rate according to the counsel for the petitioners in the revisions the lower appellate Court cannot entertain revision against sentence and enhance the same from the fine of Rs. 30,000/- to Rs. 1. 44. 000/- as there is no power vested in the Sessions. Court for doing the same. ( 13 ) IN reply to the said submissions, Mr. Munirathina Naidu, in equal vehemence would contend that the prosecution has established that the accused was liable to pay the entire cheque amount and the powers for enhancement in revision cannot be questioned. He would further contend that the finding of the Sessions Court that out of the cheque amount of Rs. 2,12,000/ - Rs. 1,40,000/-was also returned by virtue of Exs. Dl and D2 - and that the accused was liable to pay only the balance amount of Rs. He would further contend that the finding of the Sessions Court that out of the cheque amount of Rs. 2,12,000/ - Rs. 1,40,000/-was also returned by virtue of Exs. Dl and D2 - and that the accused was liable to pay only the balance amount of Rs. 72,000/,- was wrong, as it is not supported by the evidence. ( 14 ) I have carefully considered the merits of the rival contentions. ( 15 ) THERE is no dispute with regard to the fact that the cheque was issued by the accused in favour of the complainant for the sum of Rs. 2,12,000/- towards the discharge of his liability that the said cheque on presentation was returned as unpaid on 28-8-1995 and that despite the receipt of the statutory notice, no payment was made by the accused as per the demand within the stipulated time. ( 16 ) IT is also not debated over the aspect that before filing the complaint all the requisites as envisaged by the provisions under Sections 138 to 141 of the Negotiable Instruments Act have been complied with by the complainant. But the controversy is over the repayment of the entire cheque amount by the accused to complainant even before the presentation of the cheque as pleaded by the accused. ( 17 ) ACCORDING to P. W. 1, the complainant towards the hire charges of Rs. 5,55,000/- the accused issued a cheque on 30-5-1995 for Rs. 2,12,000/- and the said cheque was returned on 28-8-1995 as unpaid on presentation in the Bank. The plea of the defence is that the cheque amount was paid back on three occasions by instalments that is the first amount of Rs. 50. 000/- was on 3-6-1995 the second amount of Rs. 90,000/- was on 1-3-6-1995 and Rs. 75. 000/-Was on a later date. In order to establish his case. Exs. Dl and D2 the receipts issued by the complainant were marked. However the accused did not choose to file any receipt with regard to the payment of Rs. 75,000/-though it was claimed that the receipt was available with him. ( 18 ) P. W. 1 would admit in the cross-examination that the amounts of Rs. 50,000/-and Rs. 90,000/- were received by the complainant on the respective dates, though he would deny the receipt of Rs. 75,000/ -. 75,000/-though it was claimed that the receipt was available with him. ( 18 ) P. W. 1 would admit in the cross-examination that the amounts of Rs. 50,000/-and Rs. 90,000/- were received by the complainant on the respective dates, though he would deny the receipt of Rs. 75,000/ -. However, P. W. 1 clarified in the cross-examination that those amounts were in respect of the discharge of liability for some other transactions. It must be noted that while the accused in the reply notice stated that he has already paid the cheque amount, the rejoinder notice was sent by P. W. 1 stating that those amounts were paid towards some other liability and not in respect of cheque amount. In the said notice he has also given details of the statement of account. When P. W. 1 was examined he marked Ex. Plo, statement of accounts to show that the receipt of two other amounts was not towards the cheque amount. So, on the basis of this evidence the trial Court correctly concluded that the accused has not paid any amount towards the cheque amount and as such-the accused was liable to be convicted and sentenced to undergo imprisonment till the rising of the Court -and to pay a fine of Rs. 30,000/- out of which Rs. 28,000/-was directed to be handed over to the complainant as compensation. ( 19 ) HOWEVER, in the appeal filed by the accused the learned Sessions Judge had come to the conclusion on the strength of Exs. Dl and D2 that out of the cheque amount of Rs. 2. 12. 000/-, Rs. 50,000/- and Rs. 90,000/- were paid on 3-6-1995 and 13-6-1995 respectively and as such, he was liable to pay only the balance of Rs. 72. 000/ -. The learned Sessions judge would observe that the complainant has not proved that those amounts, namely, Rs. 50,000/- and Rs. 90,000/-were not towards the cheque amount. The relevant observation is this: (Sic Matter in other language) ( 20 ) THE above finding rendered by the Sessions Judge, in my view is quite wrong for two reasons: (1) There is evidence of P. W. 1 which is corroborated by Ex. Plo the statement of accounts that there was a total liability of Rs. 5,55,000/- and out of that he has given cheque for Rs. 2,12,000/ -Moreover on the strength of Ex. Plo the statement of accounts that there was a total liability of Rs. 5,55,000/- and out of that he has given cheque for Rs. 2,12,000/ -Moreover on the strength of Ex. Plo, P. W. 1 would specifically state that Exs. Dl and D2, the receipts given by the complainant were not issued in respect of receipt of the amount towards the cheque amount. When there is evidence available, it cannot be said that the same was not proved by the complainant. (2) Under Section 139 of the Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for the discharge in whole or in part, or any debt or other liability. So, in that view of the matter, in the light of the presumptive section, it is also for the accused to establish that the said amount was given towards the discharge of liability in respect of the cheque amount. This has not been done by the accused. Moreover, the evidence, of P. W. 1 with reference to Ex. P 10 has not been challenged in the cross-examination. ( 21 ) IN these circumstances, though the conclusion by the, Sessions Judge that the accused is liable to be convicted for the offence under Section 138 of the Act, is correct, the finding that portion of the cheque amount was paid is not correct. On a perusal of the judgment of the trial Court, it is clear that the tried Court has correctly analysed this aspect and come to the conclusion that the transaction relating to Exs. Dl and D2 are entirely different, from the transaction involving Ex. P1, the cheque. ( 22 ) IN these circumstances. I am of the view that the prosecution has established its case beyond reasonable doubt. ( 23 ) REGARDING the power of enhancement of sentence, Mr. Govindarajan, placing reliance on the decisions in Assistant Collector of Central Excise v. V. Krishnamoorthy and Krishnamoorthy and Elumalai, In Re, would contend that even in the private complaint which ended in conviction, the appeal could be filed for enhancement of sentence only by the State or the Centre, not by the private party. 23 (A ). It is true that in 1983 L. W. (Cri.) 430, a Division Bench of this Court would take such a view. 23 (A ). It is true that in 1983 L. W. (Cri.) 430, a Division Bench of this Court would take such a view. ( 24 ) BUT, in the said decision, as pointed out by Mr. Munirathina Naidu, the decisions earlier rendered by the Apex Court in Pratap v. State of U. P. , Eknath v. State of Maharashtra and Nadir Khan v. State in which it is had that the powers for enhancement under revisional jurisdiction are not affected merely because the revision petition was filed by a private person and not by the Government, have not been referred to ( 25 ) WITH reference to the decision of the Apex Court in 1997 5. C. C. (Cri.) 430 (supra), it is true that the Apex Court would hold that the appeal for enhancement in a private complaint filed by the Assistant Collector of Central Excise, Madras, could only be filed by the Central Government and not by the complainant under Section 377 (2) Cr. P. C. This decision also would not help the counsel for the accused, as it does not deal with the revisional powers. ( 26 ) HOWEVER I could see one illegality committed by the Sessions Court. As stated above, the learned Sessions Judge had come to the conclusion that the accused is liable to pay only the balance of the cheque amount and directed the petitioners to pay the amount Of Rs. 1,44,000/-, viz. , twice the balance of the cheque amount. This is not contemplated under Section 138 of the Act. ( 27 ) SECTION 138 provides that the person who committed the offence under this Act shall be punished with 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. It does not provide for the imposition of fine twice the balance amount of the cheque. ( 28 ) THE discretion is that the Court on consideration of the facts and circumstances of the case, could impose imprisonment upto one year or sentence of fine to the extent of twice the amount of the cheque. Therefore, in my view, the order directing the accused to pay twice the amount of alleged balance of the cheque amount, may not be correct. Therefore, in my view, the order directing the accused to pay twice the amount of alleged balance of the cheque amount, may not be correct. ( 29 ) IN this context, it is relevant to note that in the decisions in A. I. R. 1973 S. C. 786 (supra) and A. I. R. 1977 S. C. 1177 (supra), it is held that the High Court in an appropriate case, can enhance sentence even by exercising revisional powers, suo motu. ( 30 ) SO, in that view of the matter. I deem it fit to set aside the order of the Sessions Court regarding sentence and instead, I enhance the sentence of fine from Rs. 30,000/-to Rs. 75,000/-, out of which the complainant in my view, is entitled to get Rs. 72,000/-as compensation. ( 31 ) IT is brought to my notice that already Rs. 30,000/ -was deposited, out of which Rs. 28,000/- was given to the complainant as compensation. So, the balance amount of Rs. 45,000/- has to be deposited by the petitioners in the lower Court. Thereupon, on such deposit, Rs. 44,000/ - is directed to be paid to the complainant. ( 32 ) WITH the above observations the revisions are dismissed and in view of the findings in the revisions no order is necessary in Cr1. O. P. No. 17795 of 1997. Revisions dismissed.