Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 2824 (MAD)

Muthuraman v. R. Kaliaperumal

2010-07-12

K.N.BASHA

body2010
Judgment :- 1. This Revision is preferred by the Accused challenging his conviction and sentence imposed by the learned Additional District Judge cum Chief Judicial Magistrate Pondicherry by the judgment dated 14.3.2000 made in S.T.R. No.160 of 1997f convicting the Revision Petitioner/ Accused under Section 138 of the Negotiable Instruments Act and sentencing him to undergo Simple Imprisonment for 2 months and to pay a fine of Rs.20,000/-, in default to undergo Simple Imprisonment for 2 months and further an amount of Rs.15,000/- was ordered to be paid as compensation. 2. The case of the Complainant is that the Accused is liable to pay an amount of Rs.50,000/- which he has received by way of advance for sale of his property in favour of the Complainant. As the sale was not materialized, the Accused issued a cheque-Ex.P1 dated 13.1.1997 for a sum of Rs.50,000/- When the cheque was presented with the bankers of the Complainant the same was dishonoured as per the Bank return memo-Ex.P2 dated 3.4.1997. Thereafter, the Complainant has given a legal notice-Ex.P3 dated 9.4.1997 calling upon the Accused to pay the amount towards the dishonoured cheque within 15 days from the receipt of the said notice. The said legal notice was returned as per Ex.P4 – Acknowledgment Card dated 23.2.1999. 3. The Complainant in order to prove his case, examined PWs.1 to 3 and marked Ex.P1 to P4. 4. When the Accused was questioned under Section 313, Cr.P.C, he has admitted to have issued the cheque but stated that he has already settled the entire amount towards the dishonoured cheque. The Accused examined himself as DW1 and marked Ex.D1, the receipt issued by the learned Counsel for the Complainant dated 10.11.1998 for receipt of a sum of Rs.20,000/-. It is further stated by the Accused that, on payment of full amount towards the dishonoured cheque the Complainant refused to return Ex.P1 by demanding interest amount and thereafter misused Ex.P1 and filed the case. 5. Mr. V. Raghavachari, learned Counsel appearing for the Revision Petitioner would contend that the Respondent/Complainant has failed to make out an offence under Section 138 of the Negotiable Instruments Act. It is contended that the Accused was not owning any immovable property and as such the version of PW1 that the cheque was issued towards return of the advance amount paid to the Accused for purchase of the property cannot be believed. It is contended that the Accused was not owning any immovable property and as such the version of PW1 that the cheque was issued towards return of the advance amount paid to the Accused for purchase of the property cannot be believed. It is further contended that the Complainant even suppressed the receipt of the amount of Rs.20,000/-and the same was marked as Ex.D1 even as per the observation of the learned Trial Magistrate. Therefore, it is submitted that the Complainant has failed to prove the legally enforceable liability on the part of the Accused. It is contended that the Accused has also rebutted the presumption contemplated under Section 139 of the Negotiable Instruments Act by examining himself as DW1 and marking Ex.D1 and also eliciting answers from the Complainant who has examined himself as P.W.1 6. Mr. N. Duraiswamy, learned Counsel appearing for the Respondent as Legal Aid Counsel vehemently contended that there is no infirmity or illegality in the impugned judgment of conviction. It is contended that the Complainant has proved his case for the offence under Section 138 of the Negotiable Instruments Act. It is pointed out that, the Accused has failed to receive legal notice and having full knowledge about the dishonour of the cheque and as such the Complainant has established that there was a legally enforceable liability on the part of the Accused. It is further contended that the Accused having admitted issuing of the cheque Ex.P.1, presumption can be raised under Section 139 of the Negotiable Instruments Act to the effect that the cheque was issued towards legally enforceable liability. It is contended that though the said presumption is rebuttable one, the Accused has not rebutted the same either by adducing any acceptable evidence or by eliciting answers from the Complainant/PW1. The learned Counsel would submit that the Complainant is fighting for his case, right from the year 1997. 7. This Court has carefully considered the rival submissions and also perused the entire materials available on record including the impugned judgment of conviction. 8. The learned Counsel would submit that the Complainant is fighting for his case, right from the year 1997. 7. This Court has carefully considered the rival submissions and also perused the entire materials available on record including the impugned judgment of conviction. 8. The fact remains that the Accused has categorically admitted that he has issued the cheque Ex.P1 in favour of the Complainant and as such, in view of the presumption clause contemplated under Section 139 of the Negotiable Instruments Act, it has to be presumed that the cheque-Ex.P1 was issued only towards legally enforceable liability on the part of the Accused. The yet another fact is to the effect that, during the pendency of the trial, the Revision Petitioner has also paid an amount of Rs.20,000/-as per the Receipt-Ex.D1 marked through himself as examining himself as DW1. Therefore, there is no doubt about the legally enforceable liability on the part of the Accused, even as per his own admission while he was questioned under Section 313, Cr.P.C. and as per evidence as DW1 by marking Ex.D1. 9. It is also Pertinent to note that in Ex.1, it is clearly stated that the said payment was made only towards discharge of the amount under Ex.P1 as Ex.P1 was issued only for an amount of Rs.50,000/- and as such there is a balance amount of Rs.30,000/-. The claim of the Revision Petitioner to the effect that the said amount of Rs.20,000/- was paid only towards the interest amount after settling the principal amount cannot be accepted. The Court below also considered this aspect. Therefore, considering in any angle, the Complainant has established the guilt of the Accused for the offence under Section 138 of the Negotiable Instruments Act. There is absolutely, no ground made out warranting interference of this Court in the impugned judgment of conviction. 10. The fact remains that admittedly, the Revision Petitioner/accused has paid an amount of Rs.20,000/- as early as in the year 1998. Apart from such factor, the Petitioner had also undergone a period of imprisonment for ten days as per the verification of the records and also undergone the ordeal of trial right from the year 1997. The Trial Court also imposed fine amount which was also confirmed by the Lower Appellate Court. Apart from such factor, the Petitioner had also undergone a period of imprisonment for ten days as per the verification of the records and also undergone the ordeal of trial right from the year 1997. The Trial Court also imposed fine amount which was also confirmed by the Lower Appellate Court. In view of such admitted factors, this Court is of the considered view that modification of the sentence from 2 months’ Simple Imprisonment to one of period already undergone would meet the ends of justice. Accordingly, the sentence of two months Simple Imprisonment imposed on the Accused by the learned Additional District Judge cum Chief Judicial Magistrate, Pondhicherry in S.T.R. No.160/1997 dated 14.3.2000, as confirmed by the learned Principal Sessions Judge, Pondicherry in C.A. No.41/2000 dated 14.2.2001 is modified to one of period already undergone. The fine amount imposed by the Trial court as confirmed by the Lower Appellate Court is hereby confirmed. 11. With the above said modification of the sentence, the Revision Petition is hereby dismissed. 12. Before parting with this matter, this Court place it on record the commendable services rendered by Mr. N. Duraiswamy, learned Counsel who has appeared as Legal Aid Counsel for the Respondent. He has taken this Court meticulously through the materials available on record. Mr. N. Duraiswamy, learned Counsel is entitled to get remuneration of a sum of Rs.2,500/- (Rupees Two Thousand Five Hundred Only) from the Tamil Nadu State legal Services Authority, Madras High Court, Chennai.