Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 2233 (MAD)

T. Visu v. K. Srinivasan

2008-07-03

T.SUDANTHIRAM

body2008
Judgment :- The revision petitioner who is the accused in C.C.No.538 of 2003, on the file of the Judicial Magistrate, Udhagamandalam, stands convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for three months with a compensation of Rs.50,000/- in default to undergo simple imprisonment for one month and in the appeal preferred before the Sessions Judge, Nilgiris at Oothagamandalam in C.A.No.40 of 2005, the conviction was confirmed and the sentence of imprisonment was reduced to two months simple imprisonment. Aggireived by the said conviction and sentence, the petitioner has preferred this revision. 2. The case of the complainant is that the accused borrowed a sum of Rs.1,50,000/-from the complainant during the month of April 2003 and he gave a post dated cheque dated 21.07.2003 for a sum of Rs.1,50,000/-. As the complainant presented the cheque in the bank, it was returned for insufficient fund and therefore the complainant sent a legal notice and though the accused received the notice has neither replied nor made any payment. 3. The trial Court and the appellate Court after considering the evidence convicted the accused. 4. The learned counsel for the petitioner submitted that the accused had examined one Supervisor of Ithalar Indco Tea Factor as D.W.1 and he had depose that the accused is working as labourer in that factory for a daily wage of Rs.80/- and total monthly income was only Rs.1500/-. From this evidence, the learned counsel for the petitioner submitted that the accused had no resource to buy and repay the huge amount. Therefore, the cheque would not have been given to the complainant for such a huge amount. It is the case of the accused that he gave bank cheque to one Vivek for some chit transaction and that had been misused by the complainant. 5. The learned counsel for the respondent submitted that the accused had not rebutted the presumption with sufficient materials; and the evidence of D.W.1 cannot be accepted, since the accused was holding a bank account and he was transacting in the account. 6. This Court considered the submissions made by both parties and perused the judgment of the both the courts below. Though the accused had denied his liability, to rebut the presumption available in favour of the complainant, the accused has not let in any evidence. 6. This Court considered the submissions made by both parties and perused the judgment of the both the courts below. Though the accused had denied his liability, to rebut the presumption available in favour of the complainant, the accused has not let in any evidence. Under such circumstance, the complainant has proved his case the accused had issued the cheque to him. Both the trial and the appellate Court have found that the accused has not proved his defence. This Court also confirms the conviction on the accused. 7. The learned counsel for the petitioner prayed for leniency with regard to the sentence of imprisonment imposed on the petitioner. The cheque was issued in the year 2003 and it appears that the petitioner has no means at present. 8. Considering the facts and circumstance of the case, the sentence of imprisonment imposed on the accused is reduced to a period of one month simple imprisonment. The order of compensation amount to be paid to the complainant is confirmed, but the default sentence of one month simple imprisonment is set aside. 9. With the above modification, the revision petition is partly allowed.