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2012 DIGILAW 4233 (MAD)

G. Karthik v. Shyam Krishna Agarwal

2012-10-11

C.S.KARNAN

body2012
Judgment :- The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.78 of 2012 to set-aside the judgment passed in C.A.No.347 of 2006, on the file of the Additional Sessions Judge, Fast Track Court-V, Chennai, dated 03.01.2012, confirming the order passed in C.C.No.1255 of 2003, on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, dated 14.11.2006. 2. The respondent / complainant's case is as follows:- The accused availed financial assistance from the complainant in April 2000 to the extent of Rs.20,00,000/- and undertook to pay the entire dues before the end of December 2001. In spite of repeated requests made by the complainant for the repayment of the said loan, the accused failed to repay the loan and as on November 2002, a sum of Rs.28,00,000/- is due and payable towards the principal and interest. Subsequently, the accused issued a cheque bearing No.556371, dated 20.12.2002, drawn on Canara Bank, St. Mary's Road, Chennai-18, for a sum of Rs.28,00,000/-to and in favour of the complainant. When the complainant presented the said cheque for encashment with his bankers viz., Karnataka Bank Limited, R.A.Puram, Chennai, on 20.12.2002, it was returned unpaid with an endorsement of "funds insufficient" through return memo dated 26.12.2002 and the same was intimated by his bankers by debit advice dated 27.12.2002. The complainant sent a lawyer's notice to the accused on 03.01.2003, which was received by the accused on 04.01.2003. In spite of receipt of notice, the accused failed to effect payment of the cheque amount. Hence, the complainant had filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the VII Metropolitan Magistrate, George Town, Chennai. 3. On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant's side, three witnesses were examined and 11 documents were marked as Ex.P1 to P11 viz., Ex.P1-cheque dated 20.12.2002, Ex.P2-return memo, Ex.P3-debit advice, Ex.P4-copy of lawyer's notice dated 03.01.2003, Ex.P5-acknowledgment card Ex.P6-letter written by the complainant to the accused dated 02.12.2002, Ex.P7-statement of accounts, Ex.P8-agreement, Ex.P9-statement of complainant's account pertaining to the month of May 1999, Ex.P10-power of attorney given to P.W.2, Ex.P11-statement of complainant's account pertaining to the months of April and May 1999. On the side of the accused, two witnesses were examined and three documents were marked as Ex.R1, R2 and R3, viz., Ex.R1-letter written to Inspector, Ex.R2-power of attorney letter, Ex.R3-statement of accounts. 4. P.W.1, the complainant had adduced evidence which is corroborative with the statements made by him in the complaint and in support of his evidence, he had marked the exhibits listed as Exs.P1 to P6. P.W.1 had further deposed that the accused was aware of the interest charged on the loan and that the accused used to send him statement of accounts, on a yearly basis and that the last statement of account submitted by the accused has been marked as Ex.P7. P.W.1 deposed that after filing of the case, the accused had approached him in the year 2002 and had issued another cheque for part payment of the loan of Rs.10,00,000/-procured by him and that this cheque had also been dishonoured. P.W.1 deposed that the accused had approached him, during the pendency of the case and had given a compromise letter (Ex.P8). 5. P.W.2, G.S.Ramarao had adduced evidence that he is employed as the Accounts Assistant in Karnataka Bank, R.A.Puram Branch and that the power of attorney given by his bank had been marked as Ex.P10. P.W.2 deposed that the bank account statement of complainant in their bank for the months of April and May 1999 had been marked as Ex.P11 and as per the bank account statement, the complainant had advanced a loan of Rs.20,00,000/- to the accused. 6. P.W.3, Shiv Agarwal, adduced evidence that P.W.1 is his father and that he is aware of the financial transactions of his father as he is assisting him in the business and that he is aware of all the details pertaining to the instant case. He deposed that the statement of account, furnished by the accused detailing the amount payable by the accused to the complainant had been sent by the accused and that it had been marked as Ex.P7. He deposed that the accused, during the pendency of the case had promised to pay the cheque amount in three installments and that he had given an undertaking letter to this effect and that the letter had been marked as Ex.P8. 7. He deposed that the accused, during the pendency of the case had promised to pay the cheque amount in three installments and that he had given an undertaking letter to this effect and that the letter had been marked as Ex.P8. 7. On scrutiny of Ex.P7, the statement of account furnished by the accused, it is seen that the accused has togive a sum of Rs.25,00,000/-to the complainant as on 01.04.2002. During the pendency of the case, the accused had given a cheque of Rs.10,00,000/- to the complainant as per Ex.P8 and that this had been made as a part payment towards the said loan. It is seen from scrutiny of Ex.R1 that the accused was forced to issue the cheque when he was interrogated at the police station. The learned Magistrate was also of the view that the letter marked as Ex.P8 had been obtained by threat, at the police station, from the accused. The accused had adduced evidence that after the year 1997, he had not received any loan from the complainant and that he had given a cheque as security to the complainant when he availed the loan from him in the year 1997 and that the complainant had not returned any of the blank cheques, blank pronotes, signed blank paper given by him as security. R.W.1 deposed that on 13.09.2003, during the pendency of the case, a warrant was issued against him and he was arrested by the police and he was threatened at the police station to either pay the cheque amount or else to hand over three cheques and a letter as per Ex.P8 on stamp paper. He further deposed that he had not executed the letter marked as Ex.P7 and that Ex.P7 was prepared for the purpose of income-tax returns. He deposed that he is not liable to pay the complainant any sum of money towards any legally enforceable debt. 8. However, it is seen from evidence of P.W.2 and the exhibit marked as P11, bank account statement of complainant, that the complainant had advanced a sum of Rs.20,00,000/- to the accused and that this amount had been given prior to the issuance of cheque by the accused. 9. 8. However, it is seen from evidence of P.W.2 and the exhibit marked as P11, bank account statement of complainant, that the complainant had advanced a sum of Rs.20,00,000/- to the accused and that this amount had been given prior to the issuance of cheque by the accused. 9. It is seen from evidence of P.W.1 that he had advanced the loan of Rs.20,00,000/-in two installments and that he had given a loan of Rs.19,00,000/-on April 2000 and that he had again given a loan of Rs.1,00,000/-in May 2000. He had deposed that the said amounts were given through cheques drawn on Oriental Bank of Commerce, T.T.K.Road Branch. 10. However it is seen from evidence of P.W.2, the son of the complainant that the complainant had advanced a loan of Rs.20,00,000/-through a solitary cheque. The learned Magistrate opined that even though slight discrepancies exist in the deposition of P.W.1 and P.W.2, it is evident that the complainant had advanced a loan of Rs.20,00,000/- to the accused in the month of April 2000. From a scrutiny of Ex.R3, it is seen that the accused had paid a sum of Rs.16,00,000/-to the complainant and the complainant had also admitted this. It was contended on the side of the accused that the accused had to pay a sum of Rs.4,00,000/-only and that the complainant had misused the cheque given as security to foist a false case. However, the learned Magistrate on considering that no documentary evidence had been marked to prove that the cheque given as security had been misused by the complainant and on observing that the accused had affixed his signature in the exhibit marked as Ex.P7. Wherein, he had admitted that he owes the complainant a principal amount of a sum of Rs.20,00,000/- and an interest of Rs.5,00,000/-held that the complainant had proved his case through oral and documentary evidence. Hence, the learned Magistrate held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced the accused to undergo simple imprisonment for six months and also directed him to pay a compensation of a sum of Rs.28,00,000/-to the accused within one month from the date of its order. 11. Aggrieved by the conviction and sentence imposed by the trial Court, the accused has preferred an appeal in C.A.No.347 of 2006, before the Additional Sessions Judge, Fast Track Court-V, Chennai. 11. Aggrieved by the conviction and sentence imposed by the trial Court, the accused has preferred an appeal in C.A.No.347 of 2006, before the Additional Sessions Judge, Fast Track Court-V, Chennai. During the pendency of the appeal, the appellant filed an interlocutory application under Section 391 of Cr.P.C. to adduce further evidence and to mark a document. The same was allowed by this Court and the appellant was examined further and a carbon copy of cheque book pertaining to current account No.186 was marked as Ex.R4. The learned judge, on scrutiny of the oral and documentary evidence, dismissed the appeal and confirmed the order of the trial Court. 12. Aggrieved by the dismissal of his appeal, the appellant / accused has preferred the present revision. 13. The learned counsel for the revision petitioner has contended that the learned judge failed to note that different inks were used in the signature and the writings in the alleged cheques given to the respondent. It was also pointed out that no documents pertaining to the alleged loan transaction has been filed by the respondent to prove the liability. It was contended that the trial Court failed to note that P.W.2, the Bank officer had categorically stated that the transaction took place between the petitioner and respondent in the year 1999 and not in the year 2000 as alleged by the respondent. It was also pointed out that the trial Court after having come to a conclusion that the alleged letter marked as Ex.P8 had been obtained by threat from the accused, at the police station, erred in holding that a liability exists between the petitioner and respondent. It was contended that the Courts below failed to note that the cheque was issued as security and also barred by limitation as per the evidence of P.W.2. 14. The learned counsel for the complainant submitted that the accused had received loan from the complainant. In order to discharge the said loan, the accused had issued a cheque for a sum of R.28,00,000/-consisting of principal and interest. The said cheque was presented in the complainant's bank for collection and it was returned with an endorsement stating "insufficient funds". Thereafter, the complainant had adhered to all legal formalities and levelled a case under Section 138 of Negotiable Instruments Act. The said case was proved after trial. The said cheque was presented in the complainant's bank for collection and it was returned with an endorsement stating "insufficient funds". Thereafter, the complainant had adhered to all legal formalities and levelled a case under Section 138 of Negotiable Instruments Act. The said case was proved after trial. On the side of the complainant, three witnesses were examined and 11 documents were marked. On the side of the accused, two witnesses were examined and three documents were marked. The learned counsel further submitted that the complainant had marked Ex.P8, which is an agreement made between both parties and also submitted statement of accounts as Ex.P9 and Ex.P11. As such, the case was proved beyond doubt. Hence, the learned Magistrate imposed a sentence of simple imprisonment of six months on the accused and also awarded a sum of Rs.28,00,000/- as compensation, which is the cheque amount. The learned counsel further submitted that this Court had imposed a condition on the accused on 23.01.2012 to deposit a sum of Rs.10,00,000/-into the credit of in C.C.No.1255 of 2003, on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, within a period of six weeks. The same was not complied with. 15. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the judgments of the Courts below, this Court does not find any discrepancy in the conclusions arrived at for convicting the accused and awarding of compensation. However, the compensation amount and period of sentence are on the higher side. Therefore, this Court modifies the compensation amount from Rs.28,00,000/- to Rs.15,00,000/-(Rupees Fifteen Lakhs only) and reduces the sentence of simple imprisonment from six months to three months simple imprisonment, as it is found to be appropriate in the instant case. The compensation amount is inclusive of the earlier payment ordered to be paid by the accused to the respondent in the conditional order of this Court dated 23.01.2012. The accused has to either pay the compensation amount of a sum of Rs.15,00,000/-(Rupees Fifteen Lakhs only) or to undergo simple imprisonment for three months. This Court directs the learned VII Metropolitan Magistrate, George Town, Chennai to issue bailable warrant and secure him into judicial custody forthwith. The accused has to either pay the compensation amount of a sum of Rs.15,00,000/-(Rupees Fifteen Lakhs only) or to undergo simple imprisonment for three months. This Court directs the learned VII Metropolitan Magistrate, George Town, Chennai to issue bailable warrant and secure him into judicial custody forthwith. If the accused remits the compensation amount, in total of a sum of Rs.15,00,000/-(Rupees Fifteen Lakhs only) into the credit of C.C.No.1255 of 2003, on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, before being remanded into judicial custody, he would be set free and the sentence of three months simple imprisonment would not be executed against him any further. 16. Resultantly, the above revision is disposed of with the above modifications. Consequently, the conviction and judgment passed in C.A.No.347 of 2006, on the file of the Additional Sessions Judge, Fast Track Court-V, Chennai, dated 03.01.2012, confirming the judgment made in C.C.No.1255 of 2003, on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, dated 14.11.2006, is modified. Accordingly ordered.