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Madras High Court · body

2000 DIGILAW 1007 (MAD)

K. N. Sadagopan v. P. Vanaja Bhat

2000-10-13

K.NATARAJAN

body2000
ORDER: The revision petitioner and the respondent are the same in both the revision petitions. 2. These revision petitions have been filed against the conviction and sentence of the Principal Sessions Judge, Madras, convicting and sentencing the revision petitioner to six months rigorous imprisonment and to pay a fine of Rs.one lakh in C.A.Nos.135 of 1995 and 136 of 1995 dated 12.2.1997 confirming the conviction and sentence of the court below. 3. The respondent instituted two complaints in C.C.No.2458 of 1994 and 2459 of 1994 under Sec.138 of the Negotiable Instruments Act, alleging that the revision petitioner had borrowed a total sum of Rs.three lakhs. He had issued two cheques for one lakh each on 2.12.1993 and 25.12.1993 respectively. When the cheques were presented to the bank, they were returned with the endorsement insufficient funds. Subsequently, after issuing the statutory notice under Sec.138 of the Negotiable Instruments Act, the respondent instituted the two complaints mentioned above. 4. The learned XIV Metropolitan Magistrate, Egmore who enquired the complaints and reached the conclusion that the case of the respondent/complainant has been proved beyond doubt, convicted the petitioner to undergo rigorous imprisonment for six months and to pay a fine of Rs.one lakh out of which he ordered that a sum of Rs.50,000 shall be paid as compensation to the complainant. 5. Aggrieved with the above conviction and sentence of the trial court, the revision petitioner preferred Criminal Appeals 135 of 1995 and 136 of 1995 before the Principal Sessions Judge, Chennai. The learned Principal Sessions Judge, Chennai on a reappraisal of the evidence, concurred with the reasoning of the learned trial Judge, rejecting the contentions of the learned counsel for the respondent and confirmed the conviction and sentence imposed on the revision petitioner in both the petitions and dismissed the appeals. Challenging the correctness of the said finding of the appellate court, these two revision petitions have been filed. 6. Two points were raised before me by the learned counsel for the revision petitioner. It is submitted the two cheques were given as security for the borrowing since a promissory note for Rs.three lakhs had been executed on the same day. Therefore, the provision of Sec.138, Negotiable Instruments Act will not be attracted to the facts of the case. 7. The second point raised is that no notice had been served on the revision petitioner demanding payment which is an illegality. 8. Therefore, the provision of Sec.138, Negotiable Instruments Act will not be attracted to the facts of the case. 7. The second point raised is that no notice had been served on the revision petitioner demanding payment which is an illegality. 8. On a consideration of the submissions made by the learned counsel for both, I am of the view that the cheques more given as security for the borrowing cannot be accepted as the cheques were issued not on the same day but on different dates. Both the courts have considered the above point and rejected the contentions raised on behalf of the revision petitioner and I find no error in the said findings. 9. So far the second point, the recent Supreme Court ruling reported in K.Bhaskaran v. Sankaran Vaidyan Balan, (2000)1 L.W. (Crl.) 299: 1999 Crl.L.J. 4604, has held that once a letter is sent by registered post to the correct address of the respondent, it is deemed to have been served. In view of the above, I find no substance in the contention of the learned counsel for the revision petitioner that no notice has been served especially when it is not denied that the address given on the cover of the registered post is not correct. Therefore, both the points raised by the learned counsel for the revision petitioner are rejected. 10. As regards the sentence of fine of Rs.one lakh out of which Rs.50,000 has to be paid as compensation to the complainant, it has to be stated that the said order is incorrect in view of the judgment of Supreme Court reported in K.Bhaskaran v. Sankaran Vaidyan Balan, (2000)1 L.W. (Crl.) 299: 1999 Crl.L.J. 4604. In that case, the Supreme Court has held that a Judicial Magistrate First Class has power to impose a fine of Rs.5,000 only and any amount imposed beyond Rs.5,000 as fine is without jurisdiction. However, it has been made clear by the Supreme Court that the learned Magistrate has got powers to award any amount as compensation. In paragraphs 32 and 33 of the said judgment we find the following observations: “32. The question of sentence and award of compensation must be considered by the trial court. We deem it feasible that the Magistrate shall hear the prosecution and the accused on those aspects. In paragraphs 32 and 33 of the said judgment we find the following observations: “32. The question of sentence and award of compensation must be considered by the trial court. We deem it feasible that the Magistrate shall hear the prosecution and the accused on those aspects. Of course, if the complainant and accused settle their disputes regarding this cheque, in the meanwhile, that fact can certainly be taken into consideration in determining the extent or quantum of sentence. 33. We, therefore, up held the conviction of the offence under Sec.138 of the Act, but we set aside the sentence awarded by the High Court for enabling the trial court to pass orders on the question of sentence and the compensation, if any, payable.” 11. In view of the ruling of the Supreme Court, I find that the conviction imposed on the revision petitioner in both the cases has to be confirmed. However, the matter has to be sent back to the learned trial Magistrate to impose appropriate sentence. 12. In the result, the conviction imposed on the revision petitioner in both the cases is confirmed and the sentence imposed by the trial court and confirmed by the appellate court are set aside. The matter is remitted back to the learned trial Magistrate to pass orders on the question of sentence and the compensation if any payable in the light of the ruling of the Supreme Court pointed out above. Both the revision petitions are ordered accordingly. Office is directed to send back the trial court records at once.