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2012 DIGILAW 4247 (MAD)

K. Stellaprema v. V. Hemalata

2012-10-11

C.S.KARNAN

body2012
Judgment The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.327 of 2012 against the judgment made in C.A.No.108 of 2007, on the file of the II Additional Sessions Judge, Chennai, confirming the conviction made in CC.No.7325 of 2004, on the file of XVI Metropolitan Magistrate, Chennai. 2. The respondent / complainant's case is as follows:- During the year 2003, on various occasions, the accused had borrowed sums of money amounting to Rs.10,00,000/- from the complainant, to help her husband in the course of his film production business and executed demand promissory notes in favour of the complainant. On demand made by the complainant, the accused had given a cheque dated 03.07.2004, for a sum of Rs.10,00,000/-drwan on State Bank of Hyderabad, Harrington Road Branch, Chennai, to and in favour of the complainant. When the complainant presented the cheque for encashment with her bankers, viz., State Bank of Hyderapad, Harrington Road Branch, on 03.07.2004, the same was returned with an endorsement of "insufficient funds". The complainant issued legal notice to the accused on 04.07.2004 which was received by the accused. 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 XVI Metropolitan Magistrate, Chennai. 3. On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant's side, the complainant was examined as P.W.1 and 9 documents were marked as Exs.P1 to P9 viz., Ex.P1-cheque, Ex.P2-return memo, Ex.P3-lawyer's notice, Ex.P4-acknowledgment card, Ex.P5-letter written by the accused to the school management acknowledging her debt and assuring prompt payment, Ex.P6-letter dated 31.12.2003 acknowledging the liability , Ex.P7-copy of bank account statement of complainant in different banks, Ex.P8-copy of bank account statement of complainant at State Bank of Hyderabad, Ex.P9-copy of the bank account statement of accused at State Bank of Hyderabad. On the side of the accused, no witness, no documents. 4. P.W.1, the complainant had adduced evidence which is corroborative of the statements made by her in the complainant. On the side of the accused, no witness, no documents. 4. P.W.1, the complainant had adduced evidence which is corroborative of the statements made by her in the complainant. P.W.1 adduced evidence that the accused after receiving the lawyer's notice sent by her had given a letter of undertaking to her school management assuring that she would pay the cheque amount promptly and that the letter of undertaking had been marked as Ex.P5 and the letter given by the accused to her acknowledging the liability has been marked as Ex.P6. In support of her evidence, she had marked the documents listed as Exs.P1 to P9. 5. P.W.2, the Branch manager of State Bank of Hyderabad, Chetpet Branch had adduced evidence that the complainant had an account in their bank and that the account number is 83118 and also deposed that the accused also had an account in their bank as account No.6249. P.W.2 deposed that when the said cheque for Rs.10,00,000/- was deposited by the complainant on 03.07.2004 (cheque No.513127), it was returned unpaid due to "insufficient funds" in the account of accused. In support of his evidence, he had marked Ex.P8, the bank account statement of complainant and Ex.P9, the bank account statement of accused. 6. The learned Magistrate observed that the accused had not disputed the liability or the issuance of cheque to the complainant. The learned Magistrate observed that the complainant had admitted that she had received a sum of Rs.1,80,000/- from the accused towards discharge of the said loan. Hence, the learned Magistrate on considering the oral an documentary evidence held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced her to undergo simple imprisonment for a period of six months and also directed her to pay a compensation of Rs.8,20,000/- to the complainant within one month from the date of its order, in default of payment of compensation, the accused was to undergo further period of simple imprisonment for two months. 7. Aggrieved by the conviction and sentence passed by the trial Court, the accused has preferred an appeal in C.A.No.108 of 2007, before the II Additional Sessions Judge, Chennai. It was pointed out that the Courts below ought to have taken into consideration, the fact that the respondent failed to examine Mrs. Vijayalakshmi and Mrs. 7. Aggrieved by the conviction and sentence passed by the trial Court, the accused has preferred an appeal in C.A.No.108 of 2007, before the II Additional Sessions Judge, Chennai. It was pointed out that the Courts below ought to have taken into consideration, the fact that the respondent failed to examine Mrs. Vijayalakshmi and Mrs. Arulmozhi from whom the respondent / complainant had alleged that she had taken loan for the purpose of giving loan to the appellant and ought not to have placed reliance on Ex.P6-undertaking given by the appellant as it was obtained coercively by the school administration. The learned judge observed that the appellant had not chosen to enter into witness box to rebut the contention of respondent and had not produced any documentary proof to draw adverse inference that the cheque was issued for a legally enforceable debt. The learned judge after perusing the oral and documentary evidence dismissed the appeal and confirmed the order of the trial Court. 8. Aggrieved by the dismissal of her appeal, the appellant / accused has preferred the present revision. 9. The learned counsel for the revision petitioner has contended that the learned judges of the Courts below had relied upon the contention of the complainant that the liability of Rs.10,00,000/- originated on the promissory notes of the year 2003, but the fact of non-filing of such promissory notes as document in the complaint was not given consideration by the learned Magistrate. It was pointed out that the Courts below ought to have taken into consideration the fact that the respondent / complainant failed to examine M/s. Vijayalakshmi and M/s. Arulmozhi from whom the respondent / complainant is alleged to have taken loan for the purpose of giving loan to the appellant / accused. It was pointed out that the Courts below ought to have looked into averments of the appellant / accused that the respondent / complainant was a name lender to money lenders and acted as a proxy to such money lenders and lent loan on exorbitant rate of interest which is an offence. It was pointed out that the Court below failed to consider the readiness of the respondent / complainant to accept Rs.3,25,000/-offered by the friend of the appellant / accused as settlement, which is itself conclusive proof that the alleged cheque amount of Rs.10,00,000/-is an inflated claim. It was pointed out that the Court below failed to consider the readiness of the respondent / complainant to accept Rs.3,25,000/-offered by the friend of the appellant / accused as settlement, which is itself conclusive proof that the alleged cheque amount of Rs.10,00,000/-is an inflated claim. It was contended that the Courts below failed to take into consideration the admission of the respondent / complainant that the ink found in the signature differs from the ink used in the writings in the cheque. It was further pointed out that the respondent issued a statutory notice to the friend of the petitioner / accused, subsequent to the passing of the order of conviction by the learned Magistrate below and the respondent demanded a sum of Rs.3,25,000/- which was accepted by the petitioner / accused and the same is paid as Rs.5,000/- every month till date. 10. The learned counsel for the complainant submitted that the accused is liable to pay a sum of Rs.10,00,000/-. In order to discharge the legally enforceable debt, she had issued a cheque in favour of the complainant and the same was presented for collection, but it was returned with an endorsement of "insufficient funds". Thereafter legal formalities were followed and the case was initiated against the accused. The complainant had marked nine documents and two witnesses were examined. On the side of the accused, no witness, no documents. After considering the arguments advanced on both sides and on scrutinizing of evidence, the learned Magistrate imposed a sentence of six months simple imprisonment on the accused and awarded a compensation of Rs.8,20,000/- since the complainant had categorically admitted that she had received a sum of Rs.1,80,000/-. Against the conviction and award passed by the learned Metropolitan Magistrate, the accused had filed an appeal. The appeal was also dismissed by the learned II Additional Sessions Judge, Chennai in C.A.No.108 of 2007 and the trial Court's order was confirmed. Thereafter, the above revision has been filed. 11. Per contra, the learned counsel for the revision petitioner submitted that the accused had deposited a sum of Rs.1,00,000/-into the credit of CC.No.7325 of 2004, on the file of XVI Metropolitan Magistrate, Chennai, on 09.04.2012. 12. Thereafter, the above revision has been filed. 11. Per contra, the learned counsel for the revision petitioner submitted that the accused had deposited a sum of Rs.1,00,000/-into the credit of CC.No.7325 of 2004, on the file of XVI Metropolitan Magistrate, Chennai, on 09.04.2012. 12. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and on perusing the impugned judgments of the Courts below, this Court does not find any discrepancy in the conclusions arrived at for convicting the accused. However, the sentence of simple imprisonment for six months is on the higher side. Therefore, this Court reduces the sentence from six months simple imprisonment to three months simple imprisonment, as it is found to be appropriate in the instant case. The compensation amount of a sum of Rs.8,20,000/- awarded by the Courts below is on the higher side. Hence, this Court reduces the compensation amount from Rs.8,20,000/- to Rs.5,00,000/-(Rupees Five lakhs only), which is inclusive of earlier payment of Rs.1,00,000/-deposited by the accused into the credit of CC.No.7325 of 2004, on the file of XVI Metropolitan Magistrate, Chennai, on 09.04.2012. This Court directs the accused to pay the balance of compensation of a sum of Rs.4,00,000/- (Rupees Four Lakhs only) to the complainant since the case has been proved against the accused. The accused has to either pay the said compensation amount or to undergo three months simple imprisonment. This Court directs the learned XVI Metropolitan Magistrate, Chennai, to issue bailable warrant and secure the accused into judicial custody forthwith, in order to undergo three months simple imprisonment. If the accused remits the said balance of compensation amount of a sum of Rs.4,00,000/-(Rupees Four Lakhs only) into the credit of CC.No.7325 of 2004, on the file of XVI Metropolitan Magistrate, Chennai before being remanded into judicial custody, the accused would be set at liberty and the sentence of simple imprisonment for three months imposed on the accused would not be operated upon any further. If the accused deposits the said amount, 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. 13. Resultantly, the above revision is disposed of with the above modifications. If the accused deposits the said amount, 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. 13. Resultantly, the above revision is disposed of with the above modifications. Consequently, the conviction and judgment passed in C.A.No.108 of 2007, on the file of the II Additional Sessions Judge, Chennai, dated 25.03.2008, confirming the judgment made in CC.No.7325 of 2004, on the file of XVI Metropolitan Magistrate, Chennai, dated 22.03.2007, is modified. Accordingly ordered.