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2007 DIGILAW 2435 (MAD)

K. J. Gopal v. M. Halldurai

2007-08-03

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- This revision has been preferred against the findings of the learned trial Judge in C.C.No.22 of 2003 which had arisen out of a private complaint preferred by the revision petitioner under Section 200 of Cr.P.C. for an offence under Section 138 of the Negotiable Instruments Act 1881(herein after referred to as "the Act") contending that the cheque drawn by the accused on 111. 2002 for a sum of Rs.3,00,000/-, on presentation was dishonoured on the ground that there is no sufficient funds in the account of the drawer/accused. 2. The trial Court has furnished copies to the accused on appearance under Section 207 of Cr.P.C. And when the charge against the accused was explained to him and questioned the accused pleaded not guilty. 3. Before the trial Court,P.W1 was examined and Exs P1 to P5 were marked. 4. According to P.W.1 the accused had drawn a cheque Ex P1 for Rs.3,00,000/-on 111. 2002 in favour of the complainant and when the said cheque was presented in the bank , the same was returned with an endorsement that there is no sufficient funds in the account of the accused. Ex P2 is the bankers memo sent along with Ex P1 impugned cheque. The complainant had issued notice as contemplated under Section 138(2)(a) of the Act under the original of Ex P1 which was received by the accused under Ex P4 acknowledgment. Ex P5 is the reply notice sent by the accused. .5. When the incriminating circumstances were put to the accused, he would deny his complicity with the crime. After going through the evidence both oral and documentary, the learned trial Judge has come to a conclusion that the offence under Section 138 of the Act has been proved beyond any reasonable doubt against the accused and accordingly convicted the accused under Section 138 of the Act and sentenced him till the rising of the Court and levied a fine of Rs.1000/-with default sentence. Aggrieved by the findings of the learned trial Judge, the complainant has preferred this revision for enhancement of the sentence. 6. Now the point for determination in this appeal is whether the sentence imposed by the learned trial Judge under Section 138 of the Act against the accused is liable to be enhanced for the reasons stated in the memorandum of the revision? 7. 6. Now the point for determination in this appeal is whether the sentence imposed by the learned trial Judge under Section 138 of the Act against the accused is liable to be enhanced for the reasons stated in the memorandum of the revision? 7. Heard Mr.T.R.Sivaraman, learned counsel for the revision petitioner and Mr.A.Bobblie, learned counsel appearing for the respondent and considered their respective submissions. .8. The Point: .The learned counsel appearing for the revision petitioner relying on a decision reported in Suganthi Suresh Kumar-v- Jagadeeshan(2002 Supreme Court Cases(cri) 344) and contended that it has been held in the above said ratio decidenti by the Honourable Apex Court that a sentence of imprisonment till rising of the Court and a fine of Rs.5000/- imposed by the learned trial Judge for a complaint preferred under Section 138 of the Act on a impugned cheque of Rs.4,00,000/-can not be held to be justified. It has further been observed in the said Judgment that the fact that a civil suit is pending between the parties and in the said suit all the properties of the accused have been attached is not a ground to impose a lessor sentence and ultimately, the matter was remitted to the trial Court for awarding appropriate sentence. As far as the conviction part, there is no appeal preferred by the accused. In the case on hand, the learned trial Judge after convicting the accused under Section 138 of the Act, on the ground that the accused is poor has awarded a sentence of imprisonment till rising of the Court and slapped a fine of Rs.1000/- with default sentence which in my view is liable to be interfered with in lieu of the principle laid down in Suganthi Suresh Kumar-v-Jagadeeshan (2002 Supreme Court Cases(cri) 344). 9. In fine, the revision is allowed and the sentence imposed by the learned trial Judge alone is set aside and the matter is remitted to the trial Court for retrial in accordance with law. The learned trial Judge is directed to dispose of the case within a period of one month from the date of receipt of a copy of this order.