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2012 DIGILAW 4243 (MAD)

S. Vasundra v. Escorts Finance Limited

2012-10-11

C.S.KARNAN

body2012
Judgment :- The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.833 of 2005 against the judgment passed in C.A.No.246 of 2003, on the file of learned Additional Sessions Judge, Fast Track Court-II, Chennai, confirming the conviction and sentence passed in C.C.No.968 of 2000, on the file of XIV Metropolitan Magistrate, Egmore, Chennai. 2. The respondent / complainant's case is as follows:- The accused, in order to discharge the dues payable to the complainant, issued a cheque dated 31.08.1999, drawn on Bank of Madura, West Mambalam, Chennai, for a sum of Rs.50,000/- to and in favour of the complainant. When the complainant deposited the said cheque for encashment with his bankers viz., Federal Bank, Anna Salai, Chennai Branch on 20.12.1999, it was returned unpaid with an endorsement of "insufficient funds" in the account of the accused on 21.12.1999. The complainant sent a legal notice to the accused on 23.12.1999, which was received by the accused on 27.12.1999. In spite of receipt of notice, the accused had neither replied nor paid 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 XIV Metropolitan Magistrate, Egmore, Chennai. 3. On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant's side, two witnesses were examined and eight documents were marked as Exs.P1 to P8 viz., Ex.P1-power of attorney, Ex.P2-cheque, Ex.P3-return memo, Ex.P4-copy of lawyer's notice, Ex.P5 and Ex.P6-acknowledgment cards, Ex.P7-power of attorney given to P.W.2 and Ex.P8-bank account statement of accused. On the side of the accused, the accused was examined as R.W.1 and three documents were marked as Exs.R1, R2 and R3, viz., Ex.R1-copy of receipt, Ex.R2-proof of giving pay order and Ex.R3-copy of notice issued in case No.966 of 2000. 4. P.W.1, Sanjeev Sethi had adduced evidence that he is a lawyer employed in the complainant's firm and that the power of attorney given to him by his firm had been marked as Ex.P1. P.W.1 adduced evidence, which is corroborative with the statements made in the complaint and in support of his evidence, he had marked the documents listed as Exs.P1 to P5. 5. P.W.2, Parthasarathy had adduced evidence, that he is the Manager of Bank of Madura, Mambalam Branch and that the power of attorney given to him by his firm had been marked as Ex.P7. 5. P.W.2, Parthasarathy had adduced evidence, that he is the Manager of Bank of Madura, Mambalam Branch and that the power of attorney given to him by his firm had been marked as Ex.P7. He deposed that when the said cheque (Ex.P2) was presented at his bank for collection, it was returned unpaid due to "insufficient funds" in the account of accused. In support of his evidence, he had marked the bank account statement of accused as Ex.P8. 6. R.W.1, the accused had adduced evidence that she had not borrowed any loan from the complainant and that when the case of her husband was pending on the file of the court, the cheque had been deposited in the bank without giving any notice to him. She deposed that the complainant's firm had given a receipt for payment made by her and that when she had asked for the receipt she was informed that the receipt would be given after the return of the manager who had gone on outstation work. She deposed that she had given a demand draft on 10.01.2001 to the complainant and that the copy of receipt with endorsement of notary had been marked as Ex.R1. She deposed that she had also paid a sum of Rs.10,000/-on 10.10.2001 through pay order marked as Ex.R2 and that the copy of notice given by the complainant stating that they would withdraw the complaint had been marked as Ex.R3. 7. It had been argued on the side of the accused that a cheque had been issued to the complainant prior to entering into an agreement. During the pendency of the case, the accused and complainant had entered into an agreement, for settlement of loan. It was contended that the accused had paid a sum of Rs.25,000/-through demand draft on 10.06.2001 and that the complainant had also issued a receipt for the same and that in spite of this, the complainant, without withdrawing the complaint, had filed the case. The learned Magistrate observed that the accused had neither disputed the issuance of loan by the complainant nor her signature in the said cheque. It is seen that the accused had also admitted that she has to pay the balance of dues to the complainant. It is seen from scrutiny of Ex.R1, receipt that the complainant had admitted payment of Rs.20,000/-by demand draft and Rs.5,000/- by cheque on 10.08.2001. It is seen that the accused had also admitted that she has to pay the balance of dues to the complainant. It is seen from scrutiny of Ex.R1, receipt that the complainant had admitted payment of Rs.20,000/-by demand draft and Rs.5,000/- by cheque on 10.08.2001. It is seen on scrutiny of Ex.R1, that in the last line of the said document, i.e., after the date 08.07.2000, the full stop which had been affixed after the date had been corrected and the contents stating that the complainant had withdrawn the case has been typed. It is seen that there is a difference in the typed matter typed after the date 08.07.2000 had been typed on a different typewriter, to the typewriter one typed in the preceding matter in the said receipt. The learned Magistrate opined that even if the contentions of the accused that she effected the full payment of dues is taken to be true, the fact that she had not returned the said amount within 15 days after receiving the lawyer's notice makes her liable to be punished for an offence under Section 138 of Negotiable Instruments Act. The learned Magistrate therefore dismissed the petition filed by the accused seeking discharge in the said case. The learned Magistrate, on perusal of oral and documentary evidence sentenced the accused to undergo simple imprisonment for one year and also directed her to pay a compensation of Rs.50,000/- to the complainant. 8. Aggrieved by the conviction and sentence imposed by the trial Court, the accused had preferred an appeal in C.A.No.246 of 2003, on the file of learned Additional Sessions Judge, Fast Track Court-II, Chennai. The learned judge, on perusal of the oral and documentary evidence dismissed the appeal and confirmed the order of the trial Court. 9. Aggrieved by the dismissal of her appeal, the appellant / accused has preferred the present revision. 10. The learned counsel for the revision petitioner has contended that the learned judge failed to note that the petitioner settled the value of the cheque during the proceedings and the respondent endorsed the same by filing memorandum of undertaking. It was pointed out that the learned judge ought to have imposed lesser punishment in view of the said payment and the memo of compromise entered between the parties. It was pointed out that the learned judge ought to have imposed lesser punishment in view of the said payment and the memo of compromise entered between the parties. It was submitted that the trial Court had completely neglected and ignored the statements and averments placed on the side of the petitioner / accused. Hence, it was prayed to set-aside the orders of the Courts below. 11. On considering the facts and circumstances of the case and the arguments advanced by the learned counsel for the accused stating that the cheque amount had already been paid and that a memorandum of undertaking was executed. In order to prove the same, no substantial evidence or documentary proof had been produced before this Court. Besides, this Court after scrutiny of the judgments of the Courts below does not find any discrepancies in the conclusions arrived at for convicting the accused. However, the period of simple imprisonment one year imposed on the accused is on the higher side. Therefore, this Court reduces the sentence of simple imprisonment from one year to one month, as it is found to be appropriate in the instant case. The compensation of a sum of Rs.50,000/-awarded by the Courts below is on the higher side and therefore, this Court modifies the compensation from Rs.50,000/-to Rs.25,000/- (Rupees Twenty Five Thousand only). The accused has to either pay the compensation amount of a sum of Rs.25,000/-(Rupees Twenty Five Thousand only) or to undergo one month simple imprisonment which is exclusive of the imprisonment already undergone by the accused, if any. This Court directs the learned XIV Metropolitan Magistrate, Egmore, Chennai to issue bailable warrant and secure the accused in order to undergo one month simple imprisonment. If the accused deposits the said compensation amount, into the credit of C.C.No.968 of 2000, on the file of XIV Metropolitan Magistrate, Egmore, Chennai before being remanded into judicial custody, the accused would be set free and the sentence of simple imprisonment for one month would not be executed against the accused. If the accused deposits the said compensation amount, it is open to the complainant to withdraw the said compensation after filing a Memo before the trial Court. This order has been passed by this Court after invoking the discretionary power vested with it. 12. Resultantly, the above revision is disposed of with the above modifications. If the accused deposits the said compensation amount, it is open to the complainant to withdraw the said compensation after filing a Memo before the trial Court. This order has been passed by this Court after invoking the discretionary power vested with it. 12. Resultantly, the above revision is disposed of with the above modifications. Consequently, the conviction and judgment passed in C.A.No.246 of 2003, on the file of Additional Sessions Judge, Fast Track Court-II, Chennai, dated 25.05.2005 confirming the judgment made in C.C.No.968 of 2000 on the file of XIV Metropolitan Magistrate, Egmore, Chennai, dated 16.07.2003 is modified. Accordingly ordered.