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2012 DIGILAW 2477 (MAD)

K. Suresh v. M. Krishnasami

2012-06-15

C.S.KARNAN

body2012
Judgment :- 1. The revision petitioner herein / respondent / complainant has preferred the Criminal Revision in Crl.R.C.No.334 of 2005 against the order of conviction and sentence dated 16.12.2004 in C.A.No.97 of 2003, on the file of the Principal Sessions Judge, Chennai, confirming the order of conviction of sentence dated 04.03.2003 in C.C.No.8325 of 2003 on the file of XVII Metropolitan Magistrate, Saidapet. 2. The complainant's case is as follows:- The accused 1 and 2 have borrowed a sum of Rs.9,00,000/- from the complainant, for production expenses of the movie "Vannath Tamizh Pattu", and had promised to repay the said loan, before the release of the movie. But as they did not repay the loan even after release of the movie, the complainant had demanded them to make the payment. The second accused had issued a cheque dated 06.09.2000, drawn on Andhra Bank, T.Nagar Branch, for a sum of Rs.9,00,000/-, in favour of the complainant. The complainant presented the said cheque for encashment with his banker, namely, Bank of Baroda, T.Nagar Branch on 07.09.2000, but it was returned unpaid on 09.09.2000, due to insufficient funds in the account of the accused. The complainant issued a lawyer's notice to the accused on 18.09.2000 by registered post, but the accused had refused to receive it. Subsequently, the said notice was received by the accused on 20.09.2000 but they had neither replied to the notice nor paid the said amount. Hence, the complainant had preferred a complaint under Section 138 of Negotiable Instruments Act against the accused before the XVII Metropolitan Magistrate, Saidapet. 3. The accused pleaded not guilty before the trial Court and hence enquiry was initiated. 4. On the side of the complainant, three witnesses were examined and ten documents were marked as Exs.P1 to P10. On the accused side, no witness was examined but nine documents were marked as Exs.R1 to R9. 5. 3. The accused pleaded not guilty before the trial Court and hence enquiry was initiated. 4. On the side of the complainant, three witnesses were examined and ten documents were marked as Exs.P1 to P10. On the accused side, no witness was examined but nine documents were marked as Exs.R1 to R9. 5. P.W.1, Suresh had adduced evidence that the first accused is the proprietor of "Aishwarya Combines"; that the second accused is his son and is the power of attorney holder of the first accused; that both the accused had borrowed a sum of Rs.9,00,000/-from him, in order to produce a movie titled "Vanna Tamizh Pattu"; that in order to repay the said amount, the second accused had issued a cheque dated 06.09.2000 (EX.P1) drawn on Andhra Bank, T.Nagar Branch; that he presented the said cheque with his banker, namely, Bank of Baroda, T.Nagar Branch, on 07.09.2000 for encashment; that it was returned unpaid on 11.09.2000 with the endorsement of "insufficient funds" in the account of accused through return memo marked as Ex.P2; that the debit advice for the return of cheque, sent by his bank has been marked as Ex.P3; that a lawyer's notice (Ex.P4) was sent to the accused on 18.09.2000; that the postal receipt for sending the notice has been marked as Ex.P5; that as the said notices were not received by both the accused, it was returned and that the returned covers had been marked as Exs.P6 and P7; that the notice was sent by certified copy of posting and the postal receipt for the same has been marked as Ex.P8. 6. The Officer of Andhra Bank, T.Nagar Branch, Wilson was examined as P.W.2. P.W.2 had deposed evidence that the authorization letter issued by his bank empowering him to adduce evidence has been marked as Ex.P9; that the accused had an account in their bank; that when the impugned cheque came for encashment in their bank on 09.09.2000, the balance amount in the account of the accused was only Rs.2,109/-; that due to this, the impugned cheque was returned unpaid; that the copy of the bank account statement of accused has been marked as Ex.P10. 7. The Technical manager of Bank of Baroda, T.Nagar Branch was examined as P.W.3. 7. The Technical manager of Bank of Baroda, T.Nagar Branch was examined as P.W.3. P.W.3, in his evidence deposed that the complainant had a savings account, in their bank; that the complainant had deposited the said impugned cheque in their bank and that it was returned unpaid due to insufficient funds in the account of accused. 8. On the side of the accused, the documents R1 to R9 have been marked, namely, Ex.R1-the copy of the letter dated 26.02.2000, given by the complainant to the accused regarding audio rights; Ex.R2-the letter of undertaking given by the accused to the complainant promising to make payment of a sum of Rs.9,00,000/-; Ex.R3-the copy of the legal notice issued by the complainant to the accused; Ex.R4-the copy of lawyer's notice sent by Somasundaram, lawyer by certificate of posting; Ex.R5-the reply notice sent by accused to the complainant on 11.10.2000; that the copy of advertisement given by accused in "Dina Thanthi" on 23.10.2000 regarding release of movie "Vanna Tamizh Pattu" has been marked as Ex.P6; that the copy of judgment issued by City Civil Court in I.A.No.17021 of 2000, dated 25.10.2000 has been marked as Ex.P7; that the copy of judgment made by City Civil Court in I.A.No.17023 of 2000, dated 25.10.2000 has been marked as Ex.P8; that the civil suit preferred by the complainant against the accused, for compensation of Rs.11,50,000/- in C.C.No.838 of 2000 has been marked as Ex.P9. 9. It was argued on the side of the accused that the said cheque had been given for security purpose and that the accused had never borrowed the said sum of Rs.9,00,000/- from the complainant. But the learned Magistrate on considering that the accused had made no attempt to prove that the said cheque had been unfilled and signed while issuing it to the complainant. It was contended on the part of the accused that they had not received a sum of more than Rs.1,00,000/-from the complainant and that the said cheque was given as security for the loan. However, the learned Magistrate, on considering that the accused had not contended as such in their reply statement to the lawyer's notice sent by the complainant, held the accused guilty of offence under Section 138 of Negotiable Instruments Act and imposed a fine of Rs.100/-on the first accused in default to undergo simple imprisonment for a period of one month. However, the learned Magistrate, on considering that the accused had not contended as such in their reply statement to the lawyer's notice sent by the complainant, held the accused guilty of offence under Section 138 of Negotiable Instruments Act and imposed a fine of Rs.100/-on the first accused in default to undergo simple imprisonment for a period of one month. They also directed the second accused to pay a compensation of Rs.1,00,000/-to the complainant, in default, the second accused was to undergo simple imprisonment for a period for six months. 10. Aggrieved by the said judgment of conviction and sentence passed by the trial Court, the accused had preferred a Criminal Appeal in C.A.No.97 of 2003 before the Principal Sessions Judge, Chennai. The learned counsel for the appellants has argued that the respondent / complainant had stated in his cross-examination that he was an income tax assessee and that he had stated tentatively that the said loan of Rs.9,00,000/- was given by him either in the period of January or February 2000 and that if he had given the appellants the alleged loan of Rs.9,00,000/- such payment would have been reflected while making his income tax payment. The learned counsel further pointed out that the complainant had not produced any documents regarding income tax payment to prove that such a loan had been advanced by him. As such, it was contended that the benefit of doubt has to be extended to the appellants herein and that they should be set free from the Criminal Proceedings. 11. The learned Principal Sessions Judge, Chennai, on scrutiny of the oral and documentary evidence and after scrutinizing of impugned order of the trial Court, held the accused guilty of offence under Section 138 of Negotiable Instruments Act and dismissed the appeal, thereby confirming the trial Court's conviction and sentence imposed on the accused. 12. Aggrieved by the said judgment of the Courts below, the respondent / complainant has preferred the Criminal Revision in Crl.R.C.No.334 of 2005 before this Court. 13. The learned senior counsel for the revision petitioner has argued that the Courts below ought to have seen that the amount involved under the cheque is Rs.9,00,000/-and hence ought to have ordered a higher compensation. It was also argued that the Courts below have allowed the accused to go scot-free, after having taken an amount of Rs.9,00,000/- from the revision petitioner herein. It was also argued that the Courts below have allowed the accused to go scot-free, after having taken an amount of Rs.9,00,000/- from the revision petitioner herein. As such, it was argued that an amount of Rs.100/- and Rs.1,00,000/- imposed on the accused by the Courts below as compensation was very low and ought to be enhanced. 14. Subsequent to this, the complainant had also filed a petition before the XVII Metropolitan Magistrate, Saidapet, Chennai, on 29.06.2005 for withdrawal of the said compensation amount of Rs.1,00,000/-. The learned Magistrate, on considering that the complainant had preferred a revision before the High court for encashment of compensation, held that the petition was not maintainable and dismissed it vide Dis No.3918 of 2005 in C.C.No.8325 of 2000. 15. Aggrieved by the said dismissal of the petition, the complainant / revision petitioner has preferred another revision before this Court in Crl.R.C.No.123 of 2006. 16. The learned senior counsel for the revision petitioner has contended that the learned judge ought to have seen that the revision petitioner had filed the Criminal Revision in Crl.R.C.No.334 of 2005 as the amount in the cheque was Rs.9,00,000/-, whereas, the compensation was only a sum of Rs.1,00,000/-and that the same would not be a reason as to why the petition to withdraw the compensation should be rejected. It was further pointed out that the learned judge further erred in making an observation that the petition is not maintainable at this stage, and had failed to see that it is the right of the revision petitioner to withdraw the compensation as it has been awarded to him. 17. On considering the facts and circumstances of the case and arguments advanced by the learned senior counsel for the revision petitioner and on perusing the judgment and conviction passed in C.A.No.97 of 2003, on the file of the Principal Sessions Judge, Chennai, dated 16.12.2004 and order passed in Dis No.3918 of 2005 in C.C.No.8325 of 2000, on the file of XVII Metropolitan Magistrate, Saidapet, this Court is of the considered view that the complainant had maintained his case against the second accused, who had issued the cheque in favour of the complainant. The case was established against the second accused. The trial Court had awarded compensation of a sum of Rs.1,00,000/- to the second accused and imposed simple imprisonment for a period of six months. 18. The case was established against the second accused. The trial Court had awarded compensation of a sum of Rs.1,00,000/- to the second accused and imposed simple imprisonment for a period of six months. 18. This Court is of the further view that the complainant had established his case against the second accused and therefore, this Court directs the second accused to pay additional compensation of a sum of Rs.8,00,000/-to the complainant, which is appropriate in this case. This Court further directs the learned XVII Metropolitan Magistrate, Saidapet to issue bailable warrant on the second accused and secure him into judicial custody forthwith. If the second accused remits the additional compensation amount of a sum of Rs.8,00,000/-to the credit of C.C.No.8325 of 2000, on the file of XVII Metropolitan Magistrate, Saidapet, before being remanded into judicial custody, the second accused would be set at liberty and this Court order would not be operated against the second accused. If the second accused remits the compensation, then the complainant is at liberty to withdraw the same, after filing a Memo. 19. The second accused had deposited a sum of Rs.1,00,000/- into the credit of C.C.No.8325 of 2000, on 03.03.2005. Now, the complainant is at liberty to withdraw the same, after filing a Memo before the trial Court. However, the compensation imposed on the first accused i.e., a sum of Rs.100/-is not proper since he had not committed offence under Section 138 of Negotiable Instruments Act. Therefore, the compensation imposed on the first accused is set-aside. 20. The above order has been passed by this Court after invoking its discretionary power vested with it. 21. Resultantly, the above Criminal Revision Case in Crl.R.C.Nos.334 of 2005 is disposed of with the above observations. Consequently, the judgment and conviction passed in C.A.No.97 of 2003, on the file of the Principal Sessions Judge, Chennai, dated 16.12.2004, confirming the conviction and sentence passed in C.C.No.8325 of 2003 on the file of XVII Metropolitan Magistrate, Saidapet, dated 04.03.2003 is modified. Likewise, the Criminal Revision in Crl.R.C.No.123 of 2006 is allowed. Consequently, the order passed in Dis No.3918 of 2005 in C.C.No.8325 of 2000, on the file of XVII Metropolitan Magistrate, Saidapet, dated 18.07.2005 is set-aside. Accordingly ordered.