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2012 DIGILAW 2000 (MAD)

K. K. Veerasamy v. N. Periyasamy

2012-04-20

C.S.KARNAN

body2012
ORDER The revision petitioner / respondent / complainant has preferred this Criminal Revision in Crl.R.C.No.920 of 2006 against the judgment made in C.A.No.155 of 2004, on the file of the Additional District and Sessions Judge, Fast Track Court-III, Coimbatore modifying the conviction and sentence made in C.C.No.723 of 2003, on the file of the Judicial Magistrate-III, Coimbatore. 2. The complainant's case is as follows:- The accused had borrowed a sum of Rs.1,75,000/- from the complainant, on 19.08.1998, promising to repay the said amount along with interest at the rate of 30% per annum. In order to effect repayment, the accused had issued a cheque dated 21.11.1998, drawn on Anna Co-operative Central Bank, Kallimandayam Branch, Dinidgul for a sum of Rs.1,75,000/- in favour of the complainant. The said cheque, on presentation by the complainant, with his bankers viz., Indian Bank, Avinashi Road Branch was returned unpaid on 23.12.1998 with the endorsement of "exceeds arrangement". The complainant was informed on 28.12.1998. The accused had promised to pay the amount before 30.12.1998 but had failed to do so. On 02.01.1999, the complainant issued a lawyer's notice to the accused, who received the same on 04.01.1999. But the accused had neither replied to the notice nor effected payment. Hence, the complainant had preferred a complaint against the accused under Section 138 of Negotiable Instruments Act, before the Judicial Magistrate-III, Coimbatore. 3. The accused had pleaded not guilty before the trial Court and hence trial was conducted. 4. On the complainant's side, two witnesses were examined as P.W.1 and P.W.2 and six documents were marked as Exs.P1 to P6 viz., Ex.P1- cheque dated 19.08.1998, Ex.P2-bank return memo dated 23.12.1998, Ex.P3-debit advice, Ex.P4-lawyer's notice, Ex.P5-acknowledgment card, Ex.P6-bank account statement marked by P.W.2. On the side of the accused, no witness, no documents. 5. 4. On the complainant's side, two witnesses were examined as P.W.1 and P.W.2 and six documents were marked as Exs.P1 to P6 viz., Ex.P1- cheque dated 19.08.1998, Ex.P2-bank return memo dated 23.12.1998, Ex.P3-debit advice, Ex.P4-lawyer's notice, Ex.P5-acknowledgment card, Ex.P6-bank account statement marked by P.W.2. On the side of the accused, no witness, no documents. 5. P.W.1, K.K.Veerasami, in his evidence deposed that on 19.08.1998, the accused had borrowed a sum of Rs.1,75,000/-agreeing to repay the same with interest at the rate of 30% per annum; that on the same day, the accused had paid an interest of Rs.13,125/-for three months, and had also issued a cheque, dated 21.11.1998, drawn on Central Co-operative Bank, Dindigul (Ex.P1) for a sum of Rs.1,75,000/-; that on the advise of the accused, he had deposited the said cheque with his bankers viz., Indian Bank, Avinashi Road Branch, on 14.12.1998; that the said cheque was returned unpaid, on 23.12.1998, with an endorsement of "exceeds arrangement" through return memo (Ex.P2); that the debit advice issued by his bankers were marked as Ex.P3; that the accused had promised to pay him the cheque amount before 30.12.1998; that as the accused did not pay the amount, he had sent a lawyer's notice to the accused on 02.01.1998 (Ex.P4); that the acknowledgment card for proof of receipt of notice has been marked as Ex.P5. 6. P.W.2, Nachimuthu, the Branch Manager of Co-operative Bank, Mandaiyam, Dindigul had adduced evidence that the said impugned cheque had been presented into their bank, for encashment on 24.12.1998; that as the balance amount in the account of the accused was only Rs.323/- it was returned unpaid; that the Bank account statement of the accused has been marked as Ex.P6. 7. It was argued on the side of the accused that the accused had made full and final payment of dues amounting to Rs.1,30,000/-to the complainant and had also given an additional interest of Rs.13,125/-and that the complainant had not given the cheque issued by the accused. It was also argued that the complainant, in order to get additional interest had misused the cheque issued by the accused to foist the present case. But, the learned Magistrate, on considering that no witnesses had been examined and no documentary evidence was put forth on the accused side to prove the said allegations was not inclined to accept the above contentions. But, the learned Magistrate, on considering that no witnesses had been examined and no documentary evidence was put forth on the accused side to prove the said allegations was not inclined to accept the above contentions. The learned Magistrate, on considering that the accused had not disputed the signature contained in the cheque and after scrutiny of oral and documentary evidence, held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced the accused to undergo simple imprisonment for a period of three months and also imposed a fine of Rs.5,000/- in default of payment of fine, he was to undergo further simple imprisonment for a period of one month. 8. Aggrieved by the said judgment of the trial Court, the appellant / accused has preferred a Criminal Appeal in C.A.No.155 of 2004 before the Additional District and Sessions Judge, Fast Track Court-III, Coimbatore. 9. The learned counsel for the appellant had argued that there was no necessity for the appellant to obtain any loan from the first respondent / complainant, to the tune of Rs.1,75,000/- and hence there was no liability for him to repay any amount to the complainant. But, the learned Sessions Judge, on scrutiny of trial Courts' order and on considering that the appellant / accused had not taken any steps to get the cheque (Ex.P1) issued by him, after his alleged payment of dues to the complainant, held that the cheque had been issued validly by the appellant to the first respondent under Section 138 of Negotiable Instruments Act. Hence, the learned Sessions Judge held the accused guilty of offence under Section 138 of Negotiable Instruments Act and confirmed the fine of Rs.5,000/- imposed by the trial Court. However, the learned judge, on considering that the corporeal imprisonment of three months imposed on the accused was harsh, set-aside the sentence of imprisonment of imposed by the trial Court. 10. Aggrieved by the said judgment made in C.A.No.155 of 2004, on the file of the Additional District and Sessions Judge, Fast Track Court-III, Coimbatore, the revision petitioner herein / complainant had preferred the present revision in Crl.R.C.No.920 of 2006 before this Court. 11. 10. Aggrieved by the said judgment made in C.A.No.155 of 2004, on the file of the Additional District and Sessions Judge, Fast Track Court-III, Coimbatore, the revision petitioner herein / complainant had preferred the present revision in Crl.R.C.No.920 of 2006 before this Court. 11. The learned counsel for the revision petitioner has argued that the lower appellate Court ought to have seen that no special circumstances were pleaded and no peculiar facts were placed before it to interfere into the sentence imposed by the trial Court and as such the modification of the sentence is totally unwarranted. It was also pointed out that the lower appellate Court ought to have recorded separate reasoning for deleting the sentence of imprisonment after coming to a conclusion that the appeal has to be dismissed on merits of the case. 12. On verifying the facts and circumstances of the case and submission made by the learned counsel for the revision petitioner, and on scrutinizing the judgment and conviction passed in C.A.No.155 of 2004, on the file of the Additional District and Sessions Judge, Fast Track Court-III, Coimbatore, dated 05.07.2009, this Court is of the considered view that the findings of the learned judge of the appellate Court is erroneous, and the trial Court's order regarding sentence of imprisonment is appropriate. This Court further opines that the complainant had established his case before the trial Court. As such, the complainant is entitled to receive compensation from the accused. Therefore, this Court directs the accused to pay a sum of Rs.1,75,000/-to the complainant as compensation. Since the case was filed in the year 2003, this Court directs the learned Judicial Magistrate-III, Coimbatore to issue bailable warrant on the accused and secure him into judicial custody, forthwith, to undergo the sentence of simple imprisonment for a period of three months. If the accused remits the said compensation amount, as ordered by this Court, into the credit of C.C.No.723 of 2004, on the file of Judicial Magistrate-III, Coimbatore before being remanded into judicial custody, the accused would be set at liberty and this Court order would not be operated further against the accused. If the accused makes such deposit, the complainant is at liberty to withdraw the same, after filing a Memo. This observation has been made by this Court after invoking the discretionary power vested in it. Accordingly ordered. 13. If the accused makes such deposit, the complainant is at liberty to withdraw the same, after filing a Memo. This observation has been made by this Court after invoking the discretionary power vested in it. Accordingly ordered. 13. In the result, the above revision is disposed of with the above observation and consequently the judgment and conviction passed in C.A.No.155 of 2004, on the file of the Additional District and Sessions Judge, Fast Track Court-III, Coimbatore modifying the conviction and sentence passed in C.C.No.723 of 2004, on the file of the Judicial Magistrate-III, Coimbatore, dated 09.03.2004 is modified. Accordingly ordered.