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2012 DIGILAW 2481 (MAD)

S. Shanmugam v. M. Subramanian

2012-06-15

C.S.KARNAN

body2012
Judgment :- 1. The brief facts of the case are as follows:- The respondent herein / complainant had filed a case in C.C.No.150 of 2007, on the file of Judicial Magistrate-I, Erode, against the revision petitioner herein / accused, stating that the accused had borrowed a sum of Rs.2,70,000/-as a loan on 17.12.2006. In order to discharge the said loan, the accused had issued a cheque for the said amount. The same was presented for realization and it was returned unpaid, with an endorsement of "insufficient funds in the account of accused". Hence, the case was tried before the learned Judicial Magistrate. 2. The complainant was examined as P.W.1 and he had marked five documents which are as follows:- Ex.P1-dishonoured cheque, Ex.P2-return memo, Ex.P3-advocate notice, Ex.P4-postal receipt and Ex.P5-acknowledgment card. On the side of the accused, no witness, no documents. 3. The accused pleaded that he was not guilty and hence trial was conducted. 4. P.W.1, had stated that on 17.12.2006, the accused had received a sum of Rs.2,70,000/- as loan from him. In order to settle the said loan, the accused had issued a cheque for the said amount of a sum of Rs.2,70,000/-on 12.02.2007, drawn on Centurion Bank, Erode. P.W.1 further stated that the said cheque was presented in his account on 13.02.2007, with his bankers viz., Union Bank of India, Erode Branch. It was returned with the endorsement of "insufficient funds in the account of accused". P.W.1 further stated that thereafter, he had issued legal notice and the same was served on the accused. P.W.1 further stated that he had marked the above mentioned documents in support of his case. 5. On considering the evidence of the complainant and on perusing the marked documents and on hearing the arguments of the learned counsels on both sides, the learned Magistrate has held that the accused had received a loan of a sum of Rs.2,70,000/- for which the accused had issued the said cheque for a sum of Rs.2,70,000/-; that the same was dishonoured; that this ground of dishonour was established by the complainant. Hence, the learned Magistrate convicted the accused and sentenced him to undergo simple imprisonment for a period of two years. 6. Aggrieved by the said conviction and sentence, the accused had filed an appeal in C.A.No.108 of 2008 on the file of Additional District Judge cum Fast Track Court-I, Erode. Hence, the learned Magistrate convicted the accused and sentenced him to undergo simple imprisonment for a period of two years. 6. Aggrieved by the said conviction and sentence, the accused had filed an appeal in C.A.No.108 of 2008 on the file of Additional District Judge cum Fast Track Court-I, Erode. The said appeal was dismissed on merits after hearing the arguments of both sides and after scrutinizing the trial Court's judgment. The learned judge had also observed that the accused had not arranged the cheque amount and that it was proved through documentary evidence. Thereafter, the learned judge had declined to interfere with the trial Court's conviction and sentence. 7. Aggrieved by the dismissal of the said appeal, the accused has filed the above revision. 8. The learned counsel for the revision petitioner vehemently argued that the sentence of two years simple imprisonment imposed on the accused is harsh, considering that the said offence is a bailable one. The accused had denied the signature in the cheque and has filed a petition, which was dismissed. Against the dismissal order, the accused has filed this revision before this Court. The cheque is not a legally enforceable one. Further, the learned counsel submits that the accused had not issued the said cheque. The accused is a poor man and as such he does not have the financial credence either to borrow such a huge amount or to repay it. 9. The learned counsel for the complainant argued that the cheque had been issued by the accused for discharge of the said loan which was received from the complainant. This fact was well established before the trial Court, after producing documentary evidence. The learned counsel further submits that the accused had not produced any documentary evidence to show that he had sought the opinion of handwriting experts before the trial Court. The learned counsel further submits that the transaction took place in the year 2007. For the past 5 years, the accused had evaded payment of the cheque amount and had created multiple proceedings after the case was decided in favour of the complainant. The learned counsel further submits that the complainant had proved his case before the trial Court as well as the first appellate Court but both Courts have not granted the compensation amount and had also not imposed payment of fine on the accused. 10. The learned counsel further submits that the complainant had proved his case before the trial Court as well as the first appellate Court but both Courts have not granted the compensation amount and had also not imposed payment of fine on the accused. 10. On verifying the facts and circumstances of the case, arguments advanced by the learned counsels on either side and scrutinizing the impugned judgment passed in C.A.No.108 of 2008, on the file of Additional District Court cum Fast Track Court-I, Erode, dated 04.09.2008, this Court views that the simple imprisonment of two years imposed on the accused is harsh. However, the complainant had established the case before the Courts below. Therefore, he is entitled to receive compensation, which was not awarded by the Courts below. Therefore, this Court directs the accused to pay compensation of a sum of Rs.2,00,000/-(Rupees Two Lakhs only) to the complainant. Further, this Court modifies the sentence of imprisonment from two years to six months. This Court directs the learned Judicial Magistrate-I, Erode to issue bailable warrant on the accused and secure the accused into judicial custody, forthwith. If the accused remits the compensation amount of a sum of Rs.2,00,000/-(Rupees Two Lakhs only) into the credit of C.C.No.150 of 2007 on the file of Judicial Magistrate-I, Erode, before being remanded into judicial custody, then the accused would be set at liberty and this Court order would not be operated against the accused, further. If the accused remits the said amount into the trial Court, it is open to the complainant to withdraw the same after filing a Memo. This direction has been given by this Court after invoking the discretionary power vested with it. 11. Resultantly, the above revision has been disposed of with the above modification and the judgment and conviction passed in C.A.No.108 of 2008 on the file of Additional District Court cum Fast Track Court-I, Erode, dated 04.09.2008, confirming the conviction and sentence made in C.C.No.150 of 2007 on the file of Judicial Magistrate-I, Erode, dated 18.03.2008 is modified. Accordingly ordered.