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2012 DIGILAW 2967 (MAD)

T. R. Dasappan v. P. R. Rajagopalan

2012-07-12

C.S.KARNAN

body2012
Judgment 1. The revision petitioner herein / accused had borrowed a sum of Rs.16,00,000/-as loan from the respondent herein / complainant agreeing to repay the same on monthly installment basis. The accused had also issued a pronote for the said amount. In order to discharge the said loan amount, the accused had issued a cheque for a sum of Rs.7,00,000/-, dated 16.03.2001, and the said cheque was presented by the complainant with his bankers viz., State Bank of India, West Mambalam, the same was returned unpaid. Hence, the complainant had filed the above case against the accused under Section 138 of Negotiable Instruments Act. 2. On the side of the complainant, three witnesses have been examined viz., P.W.1-complainant, P.W.2-the Manager of the complainant's bank and P.W.3- the Manager of accused bank. Complainant had marked 12 exhibits, which are as follows:- Ex.P1-memorandum of agreement, Ex.P2-pronote, Ex.P3-cheque, Ex.P4-return memo, Ex.P5-debit advice, Ex.P6-advocate notice, Ex.P7-acknowledgment card and Ex.P8-statement of accused, Ex.P9-authorization letter, Ex.P10-complainant's bank account particulars, Ex.P11-authorization letter to P.W.3 and Ex.P12-bank account statement of accused. 3. P.W.1 had adduced evidence that he had worked in the accused company as accountant. At that time, the accused requested him to provide a loan and that he had lent loan amount. When the complainant had demanded the said loan amount, the accused had issued a cheque in his favour and the same was presented for encashment, but the said cheque was returned unpaid. Therefore, the complainant had filed a case under Section 138 of Negotiable Instruments Act against the accused. P.W.1 further stated that while the case was pending, the accused made a compromise and a memorandum of agreement was effected. As per memorandum of agreement, the accused had issued two cheques and had executed two pronotes. One of the Cheques was dated 09.03.2000 for a sum of Rs.7,00,000/-. The same was presented with the complainant's bankers viz., State Bank of India for collection. The same was returned. P.W.1, in support of his evidence had marked the above mentioned exhibits. 4. P.W.2, Srinivasan, State Bank Manager had adduced evidence stating that P.W.1 is an account holder in his bank, and that he had presented the said cheque in his account and the same was returned. He had produced the complainant's bank statement and authorization letter for giving evidence. 5. 4. P.W.2, Srinivasan, State Bank Manager had adduced evidence stating that P.W.1 is an account holder in his bank, and that he had presented the said cheque in his account and the same was returned. He had produced the complainant's bank statement and authorization letter for giving evidence. 5. P.W.3, Chandrasekar, the Manager of the Global Trust Bank, Annanagar, had adduced evidence stating that the accused is an account holder of the bank. The complainant's cheque came for encashment. On that day, the balance in the account of the accused was only a sum of Rs.300/-. He had marked the bank statement of the accused and authorization letter. 6. The accused had denied his liability. The accused's counsel had filed written arguments. As per written argument, it has been submitted that the cheque had not been issued for a legally enforceable debt. The complainant had obtained blank cheques and blank pronotes from him and presented one of the cheques. The cheques were issued for security purpose. The complainant had issued the legal notice with unclear statements. The complainant was an employee under the accused and was employed as an accountant. As such, there is no possibility to receive any loan from the employee. 7. The learned counsel further stated in his written argument that the complainant, while working as an accountant, had taken the cheques of the accused and misused the same. 8. On considering the evidence of the complainant and on perusing the written arguments on both sides, the learned Magistrate has held that the accused was guilty of offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of three months and imposed a fine of Rs.5,000/-, in default of payment of fine, the accused had to undergo simple imprisonment for a further period of three months. 9. Against the conviction and sentence passed by the trial Court, the accused had filed an appeal before the Additional District Sessions Court, Fast Track Court-II, Chennai, in C.A.No.252 of 2004. The learned judge, after hearing the arguments of both sides and on perusing the impugned judgment of the trial Court, dismissed the appeal and confirmed the learned Magistrate's order. The learned appellate judge had observed that the case had been proved beyond doubt against the accused. 10. Against the said dismissal of the appeal, the accused has filed the above criminal revision. The learned appellate judge had observed that the case had been proved beyond doubt against the accused. 10. Against the said dismissal of the appeal, the accused has filed the above criminal revision. 11. The learned counsel for the revision petitioner vehemently argued that the complainant was an accountant in the revision petitioner's company. While he was working there in the accused company, the complainant had taken the cheque leaves and misused the same for personal gains. The learned counsel further submits that the nature of case is not an usual one, since the employee had filed a case against the employer. The complainant had taken blank cheques and presented the same for encashment. The memorandum of understanding was not effected since it was a created one before the XIV Metropolitan Magistrate Court. The memorandum of understanding had been created due to unavoidable circumstances and it was not executed freely and with the full consent of the accused. Therefore, the memorandum of understanding is not sustainable under law. The disputed cheque has not been given for a legally enforceable debt. 12. The learned counsel for the respondent argued that the accused had received a sum of Rs.16,00,000/- from the complainant due to urgent need of the accused. In order to settle the said loan amount, the accused had issued two cheques and had also executed two pronotes in favour of the complainant. The earlier cheque was dishonoured. Hence, the complainant had levelled a case before the XIV Metropolitan Magistrate for the offence under Section 138 of Negotiable Instruments Act. While the said case was pending, the accused had approached the complainant for amicable settlement. Accordingly the matter was settled and memorandum of understanding was made between the parties. As per memorandum of understanding, the accused had issued the cheque, for a sum of Rs.7,00,000/-in favour of the complainant, drawn on Global Trust Bank. The said cheque was returned due to insufficient funds. Subsequently, all the legal formalities had been observed and the case has been proceeded before the trial Court. The learned counsel further submits that the case was established before the trial Court, after recording the evidence of both the bank managers. Therefore, the case was proved beyond doubt. The appeal has also been dismissed and the trial Court's order has been confirmed. The learned counsel further submits that the case was established before the trial Court, after recording the evidence of both the bank managers. Therefore, the case was proved beyond doubt. The appeal has also been dismissed and the trial Court's order has been confirmed. The learned counsel further submits that the complainant had proved his case before the Courts below and as such the complainant is entitled to receive compensation from the accused. But, the learned judges of the Courts below have not awarded the same. The learned counsel further submits that the complainant, viz., R.R.Rajagopalan had expired on 16.04.2008. Now his wife and his sons and daughters are the legal-heirs of the deceased Rajagopalan, who was the complainant in this case. 13. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned judgment passed in C.A.No.252 of 2004, on the file of Additional District Sessions Court, Fast Track Court-II, Chennai, this Court does not find any irregularity or illegality in the said judgments. Therefore, the revision is dismissed. However, the quantum of punishment i.e., three months simple imprisonment is not adequate. Therefore, this Court enhances the punishment of simple imprisonment imposed on the accused from three months to six months as it is found to be appropriate. The complainant is entitled to receive compensation. Therefore, this Court directs the accused to pay a sum of Rs.7,00,000/-(Rupees Seven Lakhs only) to the complainant. Initially, the case was filed in the year 2001. Therefore, this Court directs the learned XVII Metropolitan Magistrate Court, Saidapet, Chennai to issue bailable warrant and secure the accused into judicial custody forthwith. If the accused remits the said compensation amount of a sum of Rs.7,00,000/- (Rupees Seven Lakhs only) into the credit of C.C.No.4988 of 2001, on the file of XVII Metropolitan Magistrate Court, Saidapet, Chennai before being remanded into judicial custody, the accused would be set at liberty and this Court order would not be operated any further. If the accused deposits the said compensation amount before the trial Court, it is open to the legal-heirs of the complainant to receive the said amount and apportion it equally amongst themselves, after filing a Memo. If the accused deposits the said compensation amount before the trial Court, it is open to the legal-heirs of the complainant to receive the said amount and apportion it equally amongst themselves, after filing a Memo. This Court hereby directs the learned XVII Metropolitan Magistrate Court, Saidapet, Chennai to verify the veracity of the legal-heirship of the complainant and then release the amount to the legal heirs. This order has been passed by this Court after invoking the discretionary power vested with it. 14. Resultantly, the above revision has been disposed of with the above modifications. Consequently, the judgment of conviction and sentence passed in C.A.No.252 of 2004, on the file of Fast Track Court-II, Additional District Sessions Court, Chennai, dated 29.09.2005, confirming the conviction and sentence passed in C.C.No.4988 of 2001, on the file of XVII Metropolitan Magistrate Court, Saidapet, Chennai, dated 14.06.2004, is modified. Consequently, connected miscellaneous petitions are closed. Accordingly ordered.