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2012 DIGILAW 2580 (MAD)

R. Balaji v. Rajendran

2012-06-21

C.S.KARNAN

body2012
Judgment :- 1. The revision petitioner / complainant has preferred this Criminal Revision in Crl.R.C.No.1433 of 2005 against the judgment of conviction and sentence passed in C.C.No.252 of 2003, dated 07.06.2005, on the file of the Judicial Magistrate-II, Thiruppur, and has prayed for enhancement of sentence and fine imposed on the respondent herein / accused. 2. The complainant's case is as follows:- The accused had borrowed a sum of Rs.1,00,000/-from the complainant on 05.06.2002, agreeing to repay the same with interest at the rate of 24% per annum. On demand made by the complainant, the accused issued a cheque for a sum of Rs.1,00,000/- drawn on Indian Overseas Bank, Tiruppur. When the complainant presented the said cheque with his bankers viz., State Bank of Travancore, on 07.01.2003, it was returned unpaid due to insufficient funds in the account of the accused. The complainant sent a lawyer's notice to the accused on 18.01.2003, which was received by the accused on 22.01.2003. The accused sent a reply notice on 22.01.2003 making false allegations but had not paid the said cheque amount. Hence, the complaint has been preferred against the accused under Section 138 of Negotiable Instruments Act before the Judicial Magistrate, Tiruppur. 3. The accused 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 11 documents were marked as Exs.P1 to P11 viz., Ex.P1-promissory note dated 05.06.2002, Ex.P2-cheque for Rs.1,00,000/-, dated 06.01.2003, Ex.P3-return memo dated 07.01.2003, Ex.P4-copy of lawyer's notice dated 18.01.2003, Ex.P5-acknowledgment card dated 22.01.2003, Ex.P6-return of cover dated 22.01.2003, Ex.P7-reply notice of accused dated 22.01.2003, Ex.P8-complaint dated 05.03.2003, Ex.P9-certified copy of bank account opening form, Ex.P10-copy of bank account statement pertaining to period from 01.01.2003 to 31.07.2003, Ex.P11-extract of cheque return register. 5. On the side of the accused, two witnesses were examined and no documents were marked. 6. P.W.1. Balaji, the complainant herein had adduced evidence which is corroborative with the statements made by him in the complaint regarding dishonour of cheque and in support of his evidence had marked Exs.P1 to P12. 7. 5. On the side of the accused, two witnesses were examined and no documents were marked. 6. P.W.1. Balaji, the complainant herein had adduced evidence which is corroborative with the statements made by him in the complaint regarding dishonour of cheque and in support of his evidence had marked Exs.P1 to P12. 7. P.W.2-Soundararajan, the Assistant Manager of Indian Overseas Bank, had adduced evidence that the cheque marked as Ex.P2, had come for collection at his bank on 07.01.2003; that the current account of the accused, who is the proprietor of Indica Exports was account No.5959; that when the said cheque was presented for collection, the balance in the account of the accused was Rs.1,615/-; that the said cheque was returned unpaid due to insufficient funds through return memo marked as Ex.P3; that the certified copy of the bank account opening form of the accused with their bank has been marked as Ex.P9; that the statement of account of accused in their bank from the period extending from 1st January 2003 to 31st January 2003, has been marked as Ex.P10; that the extract of cheque return register has been marked as Ex.P11. 8. R.W.1, the accused had adduced evidence stating that the said cheque had not been issued to the complainant; that he had not received the loan of Rs.1,00,000/- as alleged by the complainant; that he had issued the said cheque and promissory note to the complainant's brother as security, as he had business transactions with him pertaining to sale of "seconds" dresses; that he had given a reply notice to the complainant on 22.01.2003, denying all the allegations contained in the notice sent by the complainant; that he does not owe the complainant any money. 9. R.W.2-Kadirvel, had adduced evidence that the accused herein is his uncle's son; that the accused was the proprietor of the banian company run in the name and style of "Indica Exports", at 19, Cotton Mill Road, New Bus stand, Tiruppur; that the said company was operational for three months; that prior to this i.e., before 2002 the accused conducted his business at Amudham Complex, next to Shanthi Theatre. 10. The learned counsel for the accused had argued that the said cheque had not been issued to the complainant and that it was not given for discharge of any legally enforceable debt. 10. The learned counsel for the accused had argued that the said cheque had not been issued to the complainant and that it was not given for discharge of any legally enforceable debt. It was also argued that the accused had given a reply notice to the lawyer's notice sent by the complainant wherein all the allegations made in the complaint were denied. It is seen from the reply notice dated 22.01.2003 sent by the accused that the accused had denied the execution of promissory note as well as the issual of cheque (No.148467) for a sum of Rs.1,00,000/-to and in favour of the complainant, and had also stated that the said promissory note and cheque had been forged to foist a false case against him for extracting money from him. However, it is seen that the accused in his evidence had deposed that the said promissory note and cheque were issued to the brother of the accused. Hence, the learned Magistrate opined that there are contradictions in the statements given by the accused in his evidence and that in his reply notice. It is also seen that the accused had not stated in his reply notice that the said cheque was given to Karthigeyan. The learned Magistrate, on considering that the accused had not disputed his signature in the cheque and promissory note and on considering the oral and documentary exhibits held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced the accused to undergo rigorous imprisonment for a period of six months and imposed a fine of Rs.1,000/- in default of payment of fine, the accused was to undergo a further period of simple imprisonment for one month. 11. Aggrieved by the said judgment and conviction and sentence imposed on the accused, the revision petitioner herein / complainant had preferred the present revision. 12. The learned counsel for the revision petitioner has argued that the lower Court had failed to appreciate the deposition of the prosecution witness on the liability and subsequent dishonour of cheque. 11. Aggrieved by the said judgment and conviction and sentence imposed on the accused, the revision petitioner herein / complainant had preferred the present revision. 12. The learned counsel for the revision petitioner has argued that the lower Court had failed to appreciate the deposition of the prosecution witness on the liability and subsequent dishonour of cheque. It was also pointed out that the lower Court failed to appreciate that the ingredients of the offence under Section 138 is clearly proved under the Negotiable Instruments Act, in the trial and as such the respondent herein / accused is liable to be punished with maximum punishment prescribed by the Negotiable Instruments Act, and hence the learned counsel has prayed for enhancement of the punishment imposed on the respondent herein / accused. 13. The above criminal revision, has been admitted by this Court on 14.11.2005. For about 7 years, the notice has not been served on the respondent / accused. The revision petitioner also had not taken effective steps to serve notice on the respondent / accused. Therefore, this Court decides to pass orders on merits, on the basis of available records. 14. On verifying the facts and circumstances of the case and the submission made by the learned counsel for the revision petitioner / complainant and on perusing the impugned award passed in C.C.No.252 of 2003, on the file of Judicial Magistrate-II, Thiruppur, dated 07.06.2005, this Court is of the considered view that the punishment of six months rigorous imprisonment imposed on the accused is not appropriate. Therefore, this Court modifies the sentence to one of simple imprisonment for a period of six months. However, the fine amount imposed on the accused is unaltered. Further, the complainant had established his case before the trial Court. As such, he is entitled to receive compensation. Therefore, this Court directs the accused to pay compensation of a sum of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant / revision petitioner herein. The compensation awarded by this Court is subject to deduction of earlier payments, if any, effected by the accused. 15. The case was initially filed in the year 2003. Therefore, this Court directs the learned Judicial Magistrate-II, Tiruppur, to issue bailable warrant on the accused and secure him into judicial custody. The compensation awarded by this Court is subject to deduction of earlier payments, if any, effected by the accused. 15. The case was initially filed in the year 2003. Therefore, this Court directs the learned Judicial Magistrate-II, Tiruppur, to issue bailable warrant on the accused and secure him into judicial custody. If the accused remits the compensation amount, as ordered by this Court, into the credit of C.C.No.252 of 2003, on the file of Judicial Magistrate-II, Tiruppur before being remanded into judicial custody, then the accused would be set free and this Court order would not be operated against him, any further. If the accused has made any earlier payment to the complainant, that amount is deductible from the compensation amount. On deposit of compensation amount by the accused, it is open to the complainant to withdraw the same, after filing a Memo before the trial Court. This order has been passed by this Court after invoking the discretionary power vested with it. 16. In the result, the above revision is partly allowed with the above observation. Consequently, the conviction and sentence passed in C.C.No.252 of 2003, on the file of the Judicial Magistrate-II, Thiruppur, dated 07.06.2005 is modified. Accordingly ordered.