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2012 DIGILAW 4313 (MAD)

R. M. Venkatesan v. V. Madheswaran

2012-10-15

C.S.KARNAN

body2012
Judgment The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.189 of 2006 against the judgment made in Crl.A.No.39 of 2004, on the file of Principal & District and Sessions Court, Namakkal, confirming the order dated 31.03.2004 in C.C.No.242 of 2002, on the file of Judicial Magistrate, Thiruchengode. 2. The respondent / complainant's case is as follows:- The accused had borrowed a sum of Rs.2,00,000/-from the complainant on 10.12.1999, for his family expenses. In order to discharge the said debt, the accused had issued a cheque dated 22.06.2000, drawn on Union Bank of India, Erode Branch for a sum of Rs.2,25,000/- to and in favour of the complainant. When the complainant presented the said cheque for encashment with his bankers, viz, Lakshmi Vilas Bank, Pallipalayam Branch on 22.06.2000, it was returned unpaid with an endorsement of "account closed" on 23.06.2000. The complainant sent a lawyer's notice to the accused on 07.07.2000 which was received by the accused on 11.07.2000. The accused sent a reply notice dated 17.07.2000 making false allegations. Hence, the complainant had filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the Judicial Magistrate Court, Thiruchengode. 3. On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant's side, three witnesses were examined and seven documents were marked as Exs.P1 to P7, viz., Ex.P1-cheque dated 22.06.2000, Ex.P2-counter foil for deposit of cheque dated 22.06.2000, Ex.P3-return memo dated 22.06.2000, Ex.P4-debit advice dated 23.06.2000, Ex.P5-lawyer's notice dated 07.07.2000, Ex.P6-acknowledgment card, Ex.P7-reply notice. On the side of the accused, eight documents were marked as Exs.R1 to R8, viz., Ex.R1-copy of general power of attorney given by the accused and his father and brother to the complainant dated 15.06.1999, Ex.R2-copy of letter dated 20.12.1999 cancelling the power of attorney given as Ex.R1, Ex.R3 and Ex.R4-copy of sale deed executed by complainant dated 27.12.1999, Ex.R5-copy of rectification deed registered at Sub Court, Kumarapalayam, dated 27.12.1999, Ex.R6-copy of notice sent by accused to complainant dated 20.12.1999, Ex.R7-copy of cheque issuance register, Ex.R8-copy of bank account statement of accused from 01.06.1997 to 30.04.2000. 4. P.W.1, the complainant had adduced evidence which is corroborative with the statements made in the complaint and in support of his evidence had marked exhibits listed as Exs.P1 to P7. 5. 4. P.W.1, the complainant had adduced evidence which is corroborative with the statements made in the complaint and in support of his evidence had marked exhibits listed as Exs.P1 to P7. 5. P.W.2, Gopal, Manager of Union Bank of India, Erode Branch had adduced evidence that the accused had a current account in their bank and that his account No.28139. P.W.2. deposed that when the said cheque Ex.P1 was presented for collection, it was returned unpaid with an endorsement of "account closed" as per return memo marked as Ex.P3. 6. P.W.3., Dhanapalan, Manager of Lakshmi Vilas Bank, Pallipalayam Branch had adduced evidence that the complainant had a current account in their bank and that the account number is 313. P.W.3 deposed that when Ex.P1 cheque was presented at their bank for collection, it was returned unpaid with an endorsement of "account closed" and in support of his evidence, he had marked the debit advice issued by his bank as Ex.P4. 7. It has been argued on the side of the accused that the complainant and accused had jointly carried on the business of purchasing and selling old cars and that the complainant had incurred a loss of Rs.3,00,000/-and due to this the complainant had taken blank signed cheque from the accused and misused it. It was admitted on the side of the accused that the signature in the cheque (Ex.P1) is his signature and that he had not filled the other columns in the cheque while handing it over to the complainant and that he had not received the loan of Rs.2,00,000/-from the complainant, as alleged by him. Though it had been contended on the side of the accused that a blank cheque had been issued by the accused to the complainant in the year 1997, no reasons had been put-forth on the side of the accused to show as to why and for what purpose, he had issued the cheque to the complainant. It is seen from scrutiny of Ex.R1 that the accused and his father and brother had given a general power of attorney to the complainant. It is seen from scrutiny of Ex.R1 that the accused and his father and brother had given a general power of attorney to the complainant. It was argued on the side of the accused that though the accused had cancelled the general power of attorney given to the complainant through letter dated 20.12.1999 marked as Ex.R2, the complainant even after cancellation of the power of attorney given to him had executed two sale deeds marked as Ex.R3 and Ex.R4 on 27.12.1999 and had sold the properties listed as per Ex.R1. It was argued that the complainant, after receipt of lawyer's notice, regarding cancellation of power of attorney had fraudulently executed the two sale deeds and that a complaint had been filed by the accused in the Pallipalayam Police Station. The learned Magistrate observed that the accused had not marked the copy of the alleged complaint lodged with Pallipalayam Police Station to prove his contentions and had not taken any steps to produce the original complaint lodged with the said police station in Court. The learned Magistrate opined that there were no logic in the contentions of the accused that a blank signed cheque had been given to the complainant in the year 1997 and that the complainant had fraudulently effected two sale deeds in the year 1999 and opined that the cheque as per Ex.P1 was not related to the documents as per Exs.R1, R2 and R3. The learned Magistrate observed that no documentary or oral evidence had been let in on the side of the accused to show the relation between the execution of cheque as per Ex.P1 and the general power of attorney given to the complainant as per Ex.R1.The learned Magistrate observed that the accused had filed a private complaint against the complainant and two others under Section 420 of IPC in C.C.No.246 of 2002, but opined that the accused had not made out how the present case is inter-linked with the said complaint filed in C.C.No.246 of 2002. As per Ex.P7, reply notice, it has been contended on the side of the accused that the accused had given blank signed cheques to the complainant in the year 1996, 1997, 1998 and 1999 as security. As per Ex.P7, reply notice, it has been contended on the side of the accused that the accused had given blank signed cheques to the complainant in the year 1996, 1997, 1998 and 1999 as security. But, the learned Magistrate observed that the accused had not stated the dates on which these cheques were given and hence observed that non mentioning of dates makes the defence of the accused weak. Further, it is seen that the accused had not taken any steps to get the cheques given allegedly as security to the complainant for three years i.e., from 1997 to 1999 and as such, the learned Magistrate rejected the contention of the accused that the cheque given as security had been misused by the complainant. It is seen from the evidence of P.W.2, that all the other cheques which have cheque numbers sequentially behind the cheque number in the present Ex.P1 had been encashed in the year 1997. However, the learned Magistrate opined that merely because all the other cheques had been encashed in the year 1997, it cannot be taken that the present cheque Ex.P1 had not been given by the accused to the complainant in the year 1999. The learned Magistrate opined that no restrictions had been placed on an account holder to issue a cheque within a particular time frame and observed that the cheque could be issued at any point of time. The learned Magistrate observed from evidence of P.W.2, that though the cheque (Ex.P1) had been returned with an endorsement of "account closed", the accused had not returned the unused cheques while closing the account. It is seen that the accused had also not intimated his bankers that he had issued cheques as security to the complainant at the time of closing his account. Hence, the learned Magistrate, after scrutiny of 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 six months and directed the accused to pay a compensation of a sum of Rs.2,00,000/- to the complainant. 8. Aggrieved by the conviction and sentence passed by the trial Court, the accused had preferred an appeal in Crl.A.No.39 of 2004, before the Principal & District and Sessions Court, Namakkal. 8. Aggrieved by the conviction and sentence passed by the trial Court, the accused had preferred an appeal in Crl.A.No.39 of 2004, before the Principal & District and Sessions Court, Namakkal. The learned judge, after scrutiny of oral and documentary evidence dismissed the appeal and confirmed the order of the trial Court. 9. Aggrieved by the dismissal of his appeal, the appellant / accused has preferred the present revision. 10. The learned counsel for the revision petitioner has contended that the lower appellate Court has committed an error in dismissing the appeal filed in Crl.M.P.No.1470 of 2005, on the ground that the documents sought to be marked are not relevant. It was contended that the Courts below failed to appreciate that a blank cheque signed by the petitioner was filled up by the respondent and that no consideration was paid. As such, the Courts below failed to take note off the fact that the provisions of the Negotiable Instruments Act as to dishonour of cheque has not been made out in a convincing manner by the respondent. It was contended that the Courts below failed to appreciate that in view of the admission made by the respondent in his evidence in O.S.No.313 of 2000 to the effect that all the dues have been cleared by the petitioner, a few years before issuance of cheque, intimation sent by the petitioner about cancellation of power of attorney alleging misuse by the respondent and the telegram sent by the petitioner requiring the respondent to send back the cheques, the complaint ought to have been dismissed. The learned counsel further submitted that the accused had been remanded into judicial custody and has been in prison for one month. 11. The learned counsel for the respondent submitted that the accused had received a sum of Rs.2,00,000/- on 20.12.1999, on interest basis. In order to discharge the said loan, the accused had issued cheque in favour of the complainant on 22.06.2000 for a sum of Rs.2,25,000/-, which is inclusive of interest. The said cheque was presented in the complainant's bank, viz., Lakshmi Vilas Bank, Pallipalayam for collection and the same was returned with an endorsement of "account closed". Subsequently, the complainant had adhered to all legal formalities and levelled a case under Section 138 of Negotiable Instruments Act before the Judicial Magistrate, Tiruchengode. In order to prove the complainant's case, he had marked seven documents. Subsequently, the complainant had adhered to all legal formalities and levelled a case under Section 138 of Negotiable Instruments Act before the Judicial Magistrate, Tiruchengode. In order to prove the complainant's case, he had marked seven documents. On the side of the accused, 9 documents were marked. After considering the evidence produced on both sides, the learned Magistrate, held the accused guilty of offence under Section 138 of Negotiable Instruments Act and awarded a sentence of six months simple imprisonment and also awarded a compensation of a sum of Rs.2,00,000/-payable by the accused. The same was challenged by the accused before the Principal & District and Sessions Court, Namakkal in C.A.No.39 of 2004. The same was dismissed after hearing the arguments of both sides and after perusing the impugned judgment of the learned Magistrate. Therefore, the case was proved beyond doubt. 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 two months simple imprisonment, as it is found to be appropriate in the instant case. However, the compensation of a sum of Rs.2,00,000/- awarded by the Courts below is on the higher side. Therefore, this Court reduces the compensation from Rs.2,00,000/- to Rs.50,000/-(Rupees Fifty Thousand only). The accused has to either pay the said compensation amount or to undergo two months simple imprisonment. This Court directs the learned Judicial Magistrate, Thiruchengode, to issue bailable warrant and secure the accused into judicial custody forthwith, in order to undergo two months simple imprisonment. If the accused remits the said compensation amount of a sum of Rs.50,000/-(Rupees Fifty Thousand only) into the credit of C.C.No.242 of 2002, on the file of Judicial Magistrate, Thiruchengode, before being remanded into judicial custody, the accused would be set at liberty and the sentence of simple imprisonment for two 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. 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 Crl.A.No.39 of 2004, on the file of Principal & District and Sessions Court, Namakkal, dated 20.01.2006, confirming the judgment made in C.C.No.242 of 2002, on the file of Judicial Magistrate, Thiruchengode, dated 31.03.1994 is modified. Accordingly ordered.