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2012 DIGILAW 4268 (MAD)

M. Palani v. R. Antony Francis

2012-10-12

C.S.KARNAN

body2012
Judgment :- The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.506 of 2006 against the judgment made in C.A.No.353 of 2002, on the file of the learned Additional District Judge cum Fast Track Court-IV, Chennai, modifying the order passed in C.C.No.5400 of 1999, on the file of the learned XIV Metropolitan Magistrate, Chennai. 2. The respondent / complainant's case is as follows:- The accused, in order to discharge the dues for purchase of cement from the complainant, had issued a cheque dated 07.04.1999, drawn on Indian Overseas Bank, Choolaimedu Branch, Chennai, for a sum of Rs.5,21,000/-, to and in favour of the complainant. When the complainant deposited the said cheque for encashment with his bankers viz., Tamil Nadu Mercantile Bank, Annasalai Branch, on 07.04.1999, it was returned unpaid with an endorsement of "insufficient funds" in the account of the accused on 08.04.1999. The complainant sent a lawyer's notice to the accused on 10.04.1999, which was received by the accused on 15.04.1999. 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, 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 nine documents were marked as Exs.P1 to P9, Ex.P1-cheque, Ex.P2-return memo, Ex.P3-debit advice, Ex.P4-copy of lawyer's notice, Ex.P5-acknowledgment card, Ex.P6-reply notice, Ex.P7-power of attorney given to P.W.2, Ex.P8-copy of bank account statement of the complainant, Ex.P9-copy of bank account statement of the accused. On the side of the accused, the accused was examined as R.W.1 and two documents were marked as Exs.R1 and R2. 4. P.W.1, the complainant had adduced evidence which is corroborative of the statements made by him in the complaint and in support of his evidence, he had marked the documents listed as Exs.P1 to P9. 5. P.W.2, Balakrishnan, the Assistant Manager of Tamil Nadu Mercantile Bank adduced evidence that the power of attorney given to him by his bank had been marked as ex.P7. He deposed that the complainant had a cash credit account in their bank and that when the cheque was presented in their bank for encashment, it was returned unpaid due to "insufficient funds" in the account of accused. He deposed that the complainant had a cash credit account in their bank and that when the cheque was presented in their bank for encashment, 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. 6. P.W.3, Sugumar had adduced evidence that he is the Senior Manager of Indian Overseas Bank, Choolaimedu Branch and that the accused had a current account in their bank. He deposed that when the cheque (Ex.P1) was presented at their bank for collection, it was returned unpaid due to insufficient funds in the account of the accused. In support of his evidence, he had marked Ex.P9, the bank account statement of accused. 7. R.W.1, Palani, the accused had adduced evidence that the complainant supplied cement to him and that he had supplied cement worth more than 1 ½ crores during the course of business. R.W.1 deposed that at the time of purchase of cement, he used to give post dated cheques, dated 15 days from the date of supply to the complainant, and that from the year 1996 onwards, the sale of cement effected by him had come down. He deposed that he owes the complainant only a sum of Rs.3,00,000/- and that he was asked to issue the cheque for Rs.5,00,000/- by the Commissioner of Police. He also deposed that he knew only the complainant's brother and was not acquainted with the complainant directly. 8. It was argued on the side of the accused that the accused, in order to discharge the debt of Rs.5,21,100/- had executed a sale deed dated 30.11.1997 effecting sale of an apartment flat of an extent of 461 sq.ft, at Pallavaram in favour of the complainant and as such the accused does not owe the complainant any sums of money. It was contended on the side of the complainant that the flat given by the accused to the complainant as per sale deed had already been sold by the accused to the son of one Seetharamaiyya, viz., Ramadas and due to this the complainant had lodged a complaint with the Crime Branch of Police, Chennai and that a case was filed subsequently against the accused. It was contended that when the accused was about to be arrested, the accused had voluntarily come for a settlement and given the said cheque. It was contended that when the accused was about to be arrested, the accused had voluntarily come for a settlement and given the said cheque. It was contended that an original suit had been registered against the accused by one Vijayabhaskar and 13 others regarding the sale of apartment flats with the XVII City Court in case No.8844 of 1997 and that it is pending. 9. The learned Magistrate, on scrutiny of Ex.P6, reply notice sent by accused observed that the accused himself had voluntarily stated that as the complainant was not interested in retaining the flat given by the accused, he was willing to give a post dated cheque for the dues payable by him to the complainant. Hence, the learned Magistrate, on considering the oral and documentary evidence held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced the accused to undergo simple imprisonment for one year and also directed the accused to pay a compensation of Rs.10,00,000/- to the complainant under Section 357(3) of Cr.P.C. 10. Aggrieved by the conviction and sentence imposed by the trial Court, the accused has preferred an appeal in C.A.No.353 of 2002, before the learned Additional District Judge cum Fast Track Court-IV, Chennai. It was contended on the side of the appellant that the sentence imposed by the trial Court is excessive. It was pointed out that the trial Court failed to see that during the cross-examination of P.W.1, he had admitted to execution of sale deed by the appellant selling the flat to him in lieu of payments due to him. It was also contended that the trial Court failed to see that the cheque issued by him had been filled up by the complainant as Rs.5,21,100/- instead of Rs.3,00,000/-. It was pointed out that during the pendency of the appeal, the appellant / accused had discharged the dues payable to the respondent / complainant. 11. The learned judge, on considering that the appellant / accused has made payments towards the dues, to the complainant, during the pendency of the appeal, partly allowed the appeal, and set-aside the sentence of one year simple imprisonment imposed on the appellant / accused by the trial Court. 11. The learned judge, on considering that the appellant / accused has made payments towards the dues, to the complainant, during the pendency of the appeal, partly allowed the appeal, and set-aside the sentence of one year simple imprisonment imposed on the appellant / accused by the trial Court. The learned judge also modified the compensation payable by the appellant / accused from Rs.10,00,000/- to Rs.1,00,000/-and imposed a cost of Rs.25,000/-, on the accused and directed the accused to pay the said sum within one month from the date of its order. 12. Aggrieved by the modified order passed by the appellate Court, the appellant / accused has preferred the present revision. 13. The learned counsel for the revision petitioner has contended that the appellate Court erred in fixing the compensation and fine amount to the respondent herein even though the cheque amount has been paid by the petitioner herein during the pendency of appeal. It was contended that the appellate Court ought not to have awarded compensation and fine in view of the non-pleading of the loss caused to the complainant. It was pointed out that the appellate Court erred in not following the decision reported in 2007(7)SCC Criminal 388, wherein the Hon'ble Apex Court issued guidelines to the lower Courts to dispose of the matter by taking into consideration payment made by the accused pending trial. It was contended that the fine and compensation awarded by the appellate Court is excessive. It was contended that the fine and compensation awarded by the appellate Court is excessive. The learned counsel for the revision petitioner has cited the following judgment in support of his contentions:- P. Noohukhanvs. Paul Raj reported in 2004(1) TNLR 665(Mad) "Negotiable Instruments Act, 1881-Section-138-Code of Criminal Procedure, 1973Section 357-Dishonour of cheque – Conviction and sentence – Cheque issued by respondent for a sum of Rs.1,80,000/- against a loan given by the complainant, was returned for want of sufficient funds on presentation to bank – Accused was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- the maximum punishment contemplated under the Act – Complainant sought sufficient compensation – Compensation does not necessarily mean the cheque amount, but it is the loss that has been suffered by the complainant – Since there is no provisions in the Act to award compensation as a penalty under Section 138 and petitioner has not suffered any loss as contemplated under Section 357, Cr.P.C. Therefore no interference called with impugned order-Revision dismissed." 14. The learned counsel for the complainant submitted that the accused had purchased cement for a sum of Rs.5,21,000/-. The same was paid by way of demand draft. However, the trial Court had awarded compensation of a sum of Rs.10,00,000/- and sentenced the petitioner to one year simple imprisonment. The same was modified by the appellate Court and the accused was directed to pay Rs.1,00,000/- as compensation and to pay Rs.25,000/- as costs. The same was not complied with. Hence, the learned counsel entreats the Court to direct the accused to pay compensation as per trial Court order. The appellate Court had not imposed adequate punishment on the accused, since the case was proved against him under Section 138 of Negotiable Instruments Act. The learned counsel further submitted that the accused had purchased cement in the year 1998 for a sum of Rs.5,21,000/-. Now, the actual cost is triple that of the cost of cement in the year 1998. The learned counsel submitted that the case had been proved against the accused under Section 138 of Negotiable Instruments Act. As such, the complainant is entitled to receive compensation, even double that of the cheque amount. This was well considered by the learned trial judge. The learned counsel submitted that the case had been proved against the accused under Section 138 of Negotiable Instruments Act. As such, the complainant is entitled to receive compensation, even double that of the cheque amount. This was well considered by the learned trial judge. The learned counsel had cited a following judgment in support of his contentions:- P.SureshKumar v. R.Shankar reported in 2007(2) CTC 670 "Negotiable Instruments Act, 1881, Section 138 – Code of Criminal Procedure, 1973, Section 357 – cheque – dishonour of cheque – partners – Unauthorised withdrawal of money from Partner's Business Account – compromise at police station – Liability admitted to the tune of Rs.7,00,000/- - cheque issued by one partner – cheque dishonoured on presentation for payment – complainant filed – Trial Court directed to pay Rs.7,00,000/- towards compensation and levied fine of Rs.5,000/- - Condition precedent for levy of fine in addition to compensation – Jurisdiction of Magistrate to impose fine – Both complainant and accused preferred revision before High Court – High Court dismissed both criminal revisions confirming conviction of respondent under Act and also order quq question of payment of fine – Respondent not approached Supereme Court – Only complainant preferred SLP – Interest of justice would be subserved if respondent is directed to pay compensation – No case made out under Section 138 of Negotiable Instruments Act on ground that cheque has been issued not in discharge of debt but by way of security – Grant of compensation would subserve purpose – Respondent directed to pay compensation of Rs.7,00,000/- and need not pay fine amount of Rs.5,000/- as has been directed by High Court – Appeal disposed of accordingly – Respondent should pay compensation within 8 weeks failing which steps may be taken for recovery thereof in accordance with law." 15. On considering 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 odes not find any discrepancy in the conclusions arrived at for convicting the accused under Section 138 of Negotiable Instruments Act. However, the accused has paid the legally enforceable debt by way of demand draft, while the appeal was pending before the Additional District Judge cum Fast Track Court-IV, Chennai, However, the accused had not paid the cost and compensation imposed on him by the appellate Court. However, the accused has paid the legally enforceable debt by way of demand draft, while the appeal was pending before the Additional District Judge cum Fast Track Court-IV, Chennai, However, the accused had not paid the cost and compensation imposed on him by the appellate Court. Both the learned counsels have not submitted the compromise memo consisting of general clauses, if any. Under the circumstances, this Court directs the accused to pay a sum of Rs.30,000/- apart from the payment of Rs.5,21,000/- made by the petitioner to the complainant or to undergo simple imprisonment one month. This Court directs the learned XIV Metropolitan Magistrate, Chennai, to issue bailable warrant on the accused and secure him forthwith in order to undergo one month simple imprisonment as per this Court order. If the accused remits the said compensation amount into the credit of C.C.No.5400 of 1999, on the file of the learned XIV Metropolitan Magistrate, Chennai, before being remanded into judicial custody, he would be set free. If the accused deposits the said compensation amount, it is open to the complainant to withdraw the same after filing a Memo. This modified order has been passed by this Court after invoking the discretionary power vested with it. 16. Resultantly, the above revision is disposed of with the above modifications. Consequently, the conviction and judgment passed in C.A.No.353 of 2002, on the file of the learned Additional District Judge cum Fast Track Court-IV, Chennai, dated 21.04.2005, modifying the judgment made in C.C.No.5400 of 1999, on the file of the learned XIV Metropolitan Magistrate, Chennai, dated 21.12.2002 is modified. Accordingly ordered.