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2009 DIGILAW 1547 (MAD)

S. R. Gunasekaran v. G. Sampoornam

2009-04-30

S.TAMILVANAN

body2009
Judgment 1. This Criminal Revision has been preferred against the Judgment, dated 26.05.2005 made in C.A.No.88 of 2004 on the file of the District and Sessions Judge / Fast Track Court No.I, Salem, confirming the Judgment, dated 29.06.2004 passed in C.C.No.265 of 2001 on the file of the Judicial Magistrate No.III, Salem. 2. The case was taken on file by the Judicial Magistrate on the complaint given by the respondent / complainant under Section 138 of the Negotiable Instrument. After the trial, the petitioner / accused was found guilty by the trial court under Section 138 of Negotiable Instruments Act, convicted and sentenced to undergo six months simple imprisonment. The petitioner / accused was also directed to pay Rs.50,000/- as compensation to the respondent / complainant. 3. The appellate court, by the impugned judgment, has confirmed the conviction and sentence imposed by the trial court and dismissed the appeal. Aggrieved by which, this appeal has been preferred by the appellant / accused. 4. Learned counsel appearing for the petitioner / accused submitted that the petitioner had availed a loan of Rs.1,00,000/-from one Sri Balaji Finance, whose proprietrix has been Smt. Sampoornam. In order to discharge the said liability, two cheques, each for Rs.50,000/- were drawn and issued in favour of the said Sri Balaji Finance by the petitioner from the Bank Account with Lakshmi Vilas Bank Limited. When the cheques were presented for collection through the payees Bank, the same were returned on 06.03.2000 with an endorsement that the account had been closed. 5. Hence, the respondent, after issuing statutory notice, demanding the cheque amount, filed the complaint before the Judicial Magistrate, Salem. According to the respondent, the petitioner / accused had received the statutory notice sent by the respondent, however, the demand to pay the cheque amount was not complied with by him. 6. Considering the evidence both oral and documentary, the trial court found the petitioner guilty, under Section138 of Negotiable Instruments Act and sentenced him to undergo six months simple imprisonment and also imposed a fine of Rs.50,000/-with a default sentence of one year. 7. In the appeal, the conviction and sentence imposed by the trial court was confirmed by the appellate court and the appeal was dismissed. 8. In the criminal revision, learned counsel appearing for the petitioner submitted that the trial court had not appraised the evidence properly as per law. 7. In the appeal, the conviction and sentence imposed by the trial court was confirmed by the appellate court and the appeal was dismissed. 8. In the criminal revision, learned counsel appearing for the petitioner submitted that the trial court had not appraised the evidence properly as per law. According to the learned counsel appearing for the petitioner, the proprietrix of the respondent concern was not examined as a witness, hence, it could have been decided that the respondent has not established the guilt against the petitioner / accused, for which, he relied on the decision Janki Vashdeo Bhojwani & another vs. Indusind Bank Ltd and others reported in 2005 (3) CTC 128. 9. In the grounds of revision, the petitioner has further stated that the complaint in question was not been filed by the person as mandated under Section 142 of Negotiable Instruments Act, hence, the Court should have rejected the same. It is seen that the complaint under Section 138 r/w 142 of Negotiable Instruments Act was filed by the power of attorney holder of the respondent. In support of the contention, the power of attorney deed, dated 210. 1999 executed by the proprietrix of the respondent concern, in favour of the power of attorney holder has been marked as Ex.P.1 and the power of attorney holder of the respondent has examined himself as P.W.1. As power of attorney holder of the respondent /complainant, there is no bar against P.W.1 in conducting the case, though he cannot adduce direct evidence as the respondent. 10. In the instant case, the dishonoured cheques, dated 13.09.1999 and 20.09.1999 were marked as Ex.P.3 series. Subsequently, after the dishonour of the cheques, legal notice dated 20.03.2000 was issued by the respondent, a copy of the same has been marked as Ex.P.4 and the postal acknowledgment was marked as Ex.P.5. It is not in dispute that the petitioner / accused sent his reply dated 04.04.2000. As concurrently held by the Courts below, the respondent herein had locu standi to file the complaint against the petitioner as power of attorney holder of the respondent proprietress. Since legal notice was issued on 20.03.2000, after the dishonour of the cheques, it could be legally construed that the statutory notice was issued by the respondent well within the time as per Section 138 of the Negotiable Instruments Act. 11. Since legal notice was issued on 20.03.2000, after the dishonour of the cheques, it could be legally construed that the statutory notice was issued by the respondent well within the time as per Section 138 of the Negotiable Instruments Act. 11. Learned counsel appearing for the petitioner submitted that as per the proviso to Section 138 of Negotiable Instruments Act, the complaint should have been made within one month from the date of the cause of action that arose for filing the complaint. According to the learned counsel for the petitioner, the case was filed one month after the alleged date of cause of action. Learned counsel appearing for the petitioner has produced a xerox copy of evidence of P.W.1 in the typed set, wherein he has stated that after the dishonour of the cheque, dated 06.03.2000, legal notice was issued by him on 20.03.2000, well within the time, that was received by the petitioner / accused on 25.03.2000, under Ex.P.5 acknowledgment. However, on the side of the petitioner / accused, there was no suggestion put to the prosecution witness (P.W.1), that the complaint was filed one month after the date of the cause of action. Even in the evidence of D.W.1, the revision petitioner herein has not specifically stated that the complaint was filed one month after the cause of action. The trial court has found that complaint was filed by the respondent through her power of attorney, well within the time limit. The appellate court has also given a concurrent finding that the complaint filed by the respondent was well within the time limit, under Section 138 of Negotiable Instruments Act. 12. Learned counsel appearing for the petitioner submitted that the case was prosecuted on 05.05.2000 by the respondent, hence, it was legally barred. In this case, there is a concurrent finding that the cheques were issued by the petitioner / accused. The petitioner has not disputed the signature available in the cheques. According to him, the cheques were not supported by consideration. He has further stated that after discharging the debts, the petitioner asked to return the two cheques but the respondent returned only 8 cheques, out of which 10 cheques issued and assured the petitioner that he would return the two cheques, however, the same were not returned to him. According to him, the cheques were not supported by consideration. He has further stated that after discharging the debts, the petitioner asked to return the two cheques but the respondent returned only 8 cheques, out of which 10 cheques issued and assured the petitioner that he would return the two cheques, however, the same were not returned to him. It is a settled proposition of law, when the defence raised by the petitioner / accused is discharge, admitting the issuance of the cheques, the burden is upon the person claiming such defence. The oral and interested testimony of the petitioner / accused will not impeach the evidence of the petitioner, based on the documentary evidence, Exs.P.2 to P.5 and further, in the grounds of revision, in paragraph number (d), the petitioner has stated as follows: "Without prejudice to the contentions of the petitioner, he had taken every possible effort to settle the issue. To show his bonafides the petitioner submits that a demand draft was taken in favour of the respondent for a sum of Rs.50,000/- (Rupees fifty thousand only), i.e., the amount of compensation awarded by the trail court. But the respondent refused to accept the same and took a vow to send the petitioner to prison. This shows the malicious intention of the respondent. The copy of the demand draft is enclosed herewith. The bonafide of the petitioner may be taken judicial notice by this Honourable Court." 13. Learned counsel appearing for the petitioner, in support of his contention, relied on the following decisions: 1. Ravi Chandran, R vs. C.Subramanian, 2006 (1) M.L.J (Crl) 68 2. K.Prashanth vs. Bharti Telenet Limited, 2008-1-L.W (Crl) 593 3. Uniplas India Ltd., vs. State (Govt. of NCT of Delhi), 2001 (6) SCC 8 4. Surendra Mal Mehta vs. M/s. Gillette India Limited, 2006 (1) M.L.J (Crl) 530 14. In Surendra Mal Mehta vs. M/s. Gillette India Limited, reported in 2006 (1) M.L.J (Crl) 530, this Court has held that a mandate holder cannot be prosecuted under Negotiable Instruments Act. As per the case referred to, the first petitioner therein was the father of the second petitioner, who was the mandate holder to issue cheque on behalf of the second petitioner therein. The Bank-account was only in the name of the said second petitioner and therefore, this Court held that the first petitioner cannot be prosecuted under Section 138 of Negotiable Instruments Act. The Bank-account was only in the name of the said second petitioner and therefore, this Court held that the first petitioner cannot be prosecuted under Section 138 of Negotiable Instruments Act. The decision in Ravi Chandran, R vs. C.Subramanian, reported in 2006 (1) M.L.J (Crl) 68 is also a similar ruling. However, the aforesaid decisions are not applicable to the facts and circumstances of this case, since the petitioner cannot be construed as a mandate holder to issue the cheques. 15. As per the prosecution case, the petitioner / accused himself had issued the dishonour cheques as proprietor, S.R.G. Fashions, a sole trading concern and therefore, he cannot be said as a mere mandate holder and as such, the decisions referred to by the petitioner have no relevance in this case. Having failed to raise a defence before the trial court and the appellate court, a new defence relating to question of fact cannot be raised by the petitioner in the revision before this Court. 16. In Uniplas India Ltd., vs. State (Govt. of NCT of Delhi), reported in 2001 (6) SCC 8 , it has been made clear that as per Section 138 (b) of Negotiable Instruments Act, statutory notice shall be given within 15 days, accordingly, the respondent / complainant issued legal notice to the petitioner / accused on 20.03.2000, after the cheques were dishonoured by the Bank on 06.03.2000. Therefore, the statutory notice was sent well within time, as contemplated under Section 138 of the Negotiable Instruments Act. 17. As per the findings of the court below, the complaint was given within a period of one month from the date of cause of action. The petitioner, in order to contradict the concurrent finding of the courts below, has produced only a xerox copy of the complaint, wherein, the date of the complaint is not available. In the xerox copy of the complaint, even in the court seal, only the year 2000 is visible, but date and month are not visible. The petitioner, in order to contradict the concurrent finding of the courts below, has produced only a xerox copy of the complaint, wherein, the date of the complaint is not available. In the xerox copy of the complaint, even in the court seal, only the year 2000 is visible, but date and month are not visible. In the absence of the said defence being raised before the trial court and the appellate court, without any material evidence, the petitioner is not entitled to argue on the factual aspect, saying that the complaint was preferred after the statutory period of one month and therefore, I am of the view that the decision rendered by the Honble Apex Court reported in 2001 (6) SCC 8 (referred to above) is also not applicable to the facts and circumstances of the case on hand. It is clear that the findings of the courts below are not against the evidence available on record or without any evidence. 18. Therefore, I could find no error or infirmity in the impugned judgment rendered by the court below, so as to warrant any interference with the same. Hence, the criminal revision fails and accordingly, the same is liable to be dismissed. 19. While granting bail, as per the order, dated 16.06.2005, the substantive sentence imposed on the petitioner alone was suspended by this Court, on condition that the petitioner / accused deposits the compensation amount of Rs.50,000/- payable to the respondent, as held by the court below and also on executing a personal bond for Rs.10,000/- with two sureties. 20. The aforesaid order has been complied with by the petitioner. Accordingly, he is on bail. The amounts, as per the two cheques is Rs.1 lakh and as per law, the trial court is empowered to award compensation amount not exceeding double the cheque amount, however, the court below had directed to pay only 50% of the cheque amount. 21. Considering the facts and circumstances, to meet the ends of justice, I find it reasonable directing the petitioner / accused to deposit the balance of cheque amount of Rs.50,000/- (Rupees fifty thousand only) within 45 days from the date of receipt of a copy of this order, as a condition precedent for allowing the revision. If the amount is so deposited, the respondent will be entitled to file a petition before the trial court to withdraw the same. If the amount is so deposited, the respondent will be entitled to file a petition before the trial court to withdraw the same. If the aforesaid condition is not complied with by the petitioner / accused, the revision petition will be deemed to be dismissed, confirming the Judgment rendered by the court below and the trial court shall secure the petitioner / accused to undergo the remaining period of sentence, pursuant to the Judgment passed by the court below, according to law. 22. With the above directions, this Criminal Revision Petition is ordered.