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2012 DIGILAW 4513 (MAD)

P. K. Balakrishnan v. K. M. Ayya Kannu

2012-10-31

C.S.KARNAN

body2012
Judgment 1. The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.1565 of 2008, against the judgment made in C.A.No.50 of 2008, on the file of the Additional District and Sessions Judge, Fast Track Court-II, Salem modifying the judgment passed in C.C.No.50 of 2007, on the file of Judicial Magistrate-I, Mettur Dam. 2. The respondent / complainant's case is as follows:- The complainant and accused are both engaged in the business of lorry transport. The accused had borrowed a sum of Rs.4,00,000/-from the complainant on 25.02.2006, for his urgent business expenses, promising to pay the sum within 10 days. On demand made by the complainant, the accused had issued a cheque dated 10.03.2006, for a sum of Rs.4,00,000/-drawn on Lakshmi Vilas Bank, Rasipuram Branch to and in favour of the complainant, requesting the complainant to present it in the first week of April 2006. When, the complainant presented the said cheque for encashment with his bankers, viz., Mettur Co-operative Bank on 03.04.2006, it was returned with an endorsement of "payment stopped" and "account closed" by drawer through return memo dated 17.04.2006. The complainant sent a lawyer's notice to the accused on 20.04.2006, which was received by the accused on 21.04.2006. The accused sent a reply notice making false allegations. As the accused did not effect cheque payment even after receipt of notice, the complainant had filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the Judicial Magistrate-I, Mettur Dam. 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 eight documents were marked as Exs.P1 to P8 viz., Ex.P1-cheque dated 10.03.2006, Ex.P2-deposit challan dated 03.04.2006 for receipt of cheque, Ex.P3-return memo dated 07.04.2006, Ex.P4-debit advice dated 17.04.2006, Ex.P5-copy of lawyer's notice dated 20.04.2006, Ex.P6-acknowledgment card, Ex.P7-reply notice and Ex.P8-bank account statement of accused dated 24.04.2007. On the side of the accused, six witnesses were examined as R.W.1 and R.W.6 and nine documents were marked as Exs.R1 to R9, viz., Exs.R-1 to R6, receipts dated 07.01.2004, 28.01.2004, 20.03.2004, 17.06.2004, 04.07.2004 and 07.08.2004 issued by Thangam investment, Mettur, Ex.R7-statement of account of accused firm pertaining to the period from 18.06.2002 to 25.12.2002, Ex.R8-statement of account of accused firm from 26.12.2002 to 07.01.2003 and Ex.R9-statement of account of accused firm from 08.01.2003 to 28.07.2004. 4. 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, he had marked exhibits listed as Exs.P1 to P8. 5. R.W.1, Dhanraj, the Assistant Manager of Lakshmi Vilas Bank, Rasipuram Branch had adduced evidence that the accused had maintained current account in the name of his firm and that the account number was 13192. R.W.1 deposed that the accused had given them instructions through a letter dated 23.11.2004 to stop payment of two cheques issued by him and that the cheque numbers are 0503246 and 0503247. R.W.1 deposed that the accused had also sent a letter to their bank through registered post to stop payment on the said two cheques. 6. R.W.2, Chandran, the complainant's son who is the partner of Sri Thangam Investment, a finance company, had adduced evidence that while giving loans to clients, promissory notes and application forms would be taken from the clients for security purpose. R.W.2 deposed that the accounts maintained by their firm would be audited every year and that the receipt issued by their firm to the accused showing monthly payments effected by the accused have been marked as Exs.R1 to R6 viz., Ex.R1-receipt for Rs.22,000/-, dated 07.01.2004, Ex.R2-receipt for Rs.22,000/-, dated 26.01.2004, Ex.R3-receipt for Rs.22,000/- dated 20.03.2004, Ex.R4-receipt for Rs.46,000/- dated 17.06.2004, Ex.R5-receipt for Rs.22,000/-dated 09.07.2004 and Ex.R6-receipt for Rs.22,250/- dated 07.08.2004. 7. R.W.3, Rangaraj, the Manager of Thangam Investment had adduced evidence that his wife is also a partner of the said Sri Thangam Investment. R.W.3 deposed that the accused had borrowed a loan from his finance company and that he had given application form and promissory note at the time of borrowal of loan. R.W.3 deposed that the accused had settled the said loan received from his finance company. 8. R.W.4, Matheswaran, the contractor in "Thermal Power Plant", Mettur had adduced evidence that he is also engaged in agricultural operations and is acquainted with the accused for about 4 to 5 years. R.W.4 deposed that he is the Managing Partner of Sri Thangam Investment and that the clients seeking loan from his finance company have to be introduced through someone known to them. R.W.4 deposed that he is the Managing Partner of Sri Thangam Investment and that the clients seeking loan from his finance company have to be introduced through someone known to them. He deposed that the accused had taken loan from his finance company in the year 2003 and 2004 and that the accused was introduced by one K.G. Rajendran and that receipts for payments made by the clients for loan amount would be issued by the Manager, viz., Rangasami and other Clerks. He deposed that the son of the accused had already procured a loan from his finance company and settled the loan in installments. He deposed that the said cheque Ex.P1 had not been issued by the accused to their firm for discharge of loan. 9. R.W.5, Balakrishnan, the accused had adduced evidence that he is a contractor of "Ash dust" in the Thermal Power Plant, Mettur. He deposed that he used to borrow money from Thangam Finance Company, Mettur for his business requirements, whenever needed and that he had received loans payable in installments on a daily basis and also received loans payable in installments on a monthly basis and that receipts for such installments paid were not given for loans payable on a daily basis and that receipts were given for installments paid on loans payable on a monthly basis. He deposed that he had received loans from the said Finance Company from the year 2002 to the year 2004. He deposed that subsequently, he had stopped doing business. He deposed that the documents marked as Exs.R1 to R6 are receipts issued by Thangam Finance Company for payment of monthly installments made by him towards loan. He deposed that the document marked as Ex.R7 shows the statement of account of the transaction pertaining to the loan payable in installments on a daily basis from 18.06.2002 to 25.12.2002 and that Exs.R8 and R9 are documents showing the statement of accounts of the transaction pertaining to the loan payable in installments on a daily basis from 26.12.2002 to 07.01.2003 and from 08.01.2003 to 28.07.2004. In the said documents, the name of the firm who has paid the loan has been mentioned as P.R.L. (H.L.) i.e., Ponnusamy Road linesand the (HL) mentioned beside the firm was the short form of hand loan. In the said documents, the name of the firm who has paid the loan has been mentioned as P.R.L. (H.L.) i.e., Ponnusamy Road linesand the (HL) mentioned beside the firm was the short form of hand loan. R.W.5 deposed that he had given two blank signed cheques and six blank signed promissory notes at the time of borrowal of loan and that a dispute subsequently arose between him and the said Thangam Investments Finance Company over waiver of interest on the said loan. R.W.5 deposed that due to the dispute he had instructed his bank in the year 2004 to stop making payment of cheques issued by him. He deposed that Ex.P1 cheque had been issued by him to the Manager, Rangasami of the said Thangam Finance and that it was issued in blank after affixing his signature in it. R.W.5 deposed that the complainant had got the cheque (Ex.P1) from his son, who is the partner in the said Thangam Finance and foisted a false case on him. R.W.5 deposed that he had never received any loan from the complainant. 10. R.W.6, Karthikeyan, the son of the accused adduced evidence that he is also engaged in lorry transport business and that during periods of need, he used to procure loans from Thangam Finance payable in installments on a daily basis and also loans payable in installments on a monthly basis and that he was introduced to the said finance company by one Matheswaran, who is the partner in the said finance company. He deposed that the receipts marked as Exs.R1 to R5 are payments made by him to the said Finance Company and that amounts mentioned in receipts marked as Exs.R7, R8 and R9 are payments made with fine and interest. 11. It was contended on the side of the complainant that the accused had not raised the contention of giving the said cheque (Ex.P1) as security to Thangam Finance in his reply notice marked as Ex.P7 and as such pointed that the accused had made the above contentions in order to escape from his liability. 11. It was contended on the side of the complainant that the accused had not raised the contention of giving the said cheque (Ex.P1) as security to Thangam Finance in his reply notice marked as Ex.P7 and as such pointed that the accused had made the above contentions in order to escape from his liability. It was contended on the side of the accused that as the accused had already given stop payment advice to his bankers regarding the cheque marked as Ex.P1 in the year 2004 itself, the contentions laid down on the side of the complainant that the accused had borrowed a loan from the complainant in the year 2006 and issued the said cheque (Ex.P1) was not believable. It is seen that the accused had not denied his signature in the said cheque (Ex.P1) but had only contended that the writings in the other parts of the cheque had not been filled up by him. From a scrutiny of reply notice marked as Ex.P7, it is seen that the accused had stated that he had received a loan of Rs.4,00,000/-from the complainant and that he had returned the same, but the complainant, even after receiving the loan amount, had not returned the said cheque given as security. It was also stated that due to dispute over interest on loan, the accused had given stop payment advices for the said cheque (ex.P1) to his bank on 28.11.2004 and 23.02.2006. The learned Magistrate observed that the accused had not taken any steps to recover the cheque allegedly issued as security to the complainant, even after making the alleged payment of loan received. The learned Magistrate further observed that no mention was made, regarding the borrowal of loan from Thangam Investments and the settlement of the said loan to Thangam Investments and the issuance of cheque as security (Ex.P1) to Thangam Investment, in the reply notice. The learned Magistrate on scrutiny of Exhibits marked as Exs.R7, R8 and R9 observed that the accused had not let in sufficient evidence to prove that the cheque had not been issued by him for a legally enforceable debt. The learned Magistrate on scrutiny of Exhibits marked as Exs.R7, R8 and R9 observed that the accused had not let in sufficient evidence to prove that the cheque had not been issued by him for a legally enforceable debt. Hence, the learned Magistrate on 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 rigorous imprisonment for one year and also directed the accused to pay a compensation of Rs.4,00,000/-to the complainant under Section 357(3) of Cr. P.C. 12. Aggrieved by the conviction and sentence imposed by the trial Court, the accused had preferred an appeal before the Additional District and Sessions Judge, Fast Track Court-II, Salem. The learned judge, after scrutiny of the oral and documentary evidence and after perusal of the trial Court's order, confirmed the conviction imposed on the accused, but modified the sentence imposed on the accused. The learned judge directed the accused to pay compensation of a sum of Rs.4,00,000/- to the complainant within two months from the date of its order, in default of payment of compensation, the accused was sentenced to undergo simple imprisonment for a period of three months. 13. Aggrieved by the judgment passed by the appellate Court, the appellant / accused has preferred the present revision. 14. The learned counsel for the revision petitioner has contended that the Courts below have failed to consider the difference in ink with regard to the signature in the cheque Ex.P1 and the writings in Ex.P1. It was contended that the Courts below ought to have held that there is insufficient evidence on the side of P.W.1 to show that he had given a hand loan of Rs.4,00,000/- to the petitioner and that the Courts below ought to have held that the petitioner had repaid the loan borrowed from Thangam Investments, in which the son of the complainant is one of the partners and that the complainant has misused the cheque given as security to Thangam Investments. It was contended that the appellate Court erred in ordering payment of compensation with a default clause and that the time of 60 days granted by the appellate court is against law, since 90 days time is available for filing a revision before this Court. The learned counsel further submitted that the accused had marked nine documents regarding the loan transaction. The learned counsel further submitted that the accused had marked nine documents regarding the loan transaction. Therefore, the cheque had been misused by the complainant by conniving with his son. 15. On verifying the facts and circumstances of the case 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 under Section 138 of Negotiable Instruments Act. However, the quantum of punishment imposed on the accused is on the higher side. Therefore, this Court modifies the sentence and compensation as follows:- This Court directs the accused to pay compensation of a sum of Rs.2,00,000/- (Rupees Two Lakhs only) to the complainant. Further, this Court imposes a sentence of simple imprisonment for three months on the accused. The accused has to either pay compensation of a sum of Rs.2,00,000/-or to undergo three months simple imprisonment. This Court directs the learned Judicial Magistrate-I, Mettur Dam, 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 compensation amount of a sum of Rs.2,00,000/-into the credit of C.C.No.50 of 2007, on the file of Judicial Magistrate-I, Mettur Dam, 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. 16. Resultantly, the above revision is partly allowed with the above modifications. Consequently, the conviction and judgment passed in C.A.No.50 of 2008, on the file of the Additional District and Sessions Judge, Fast Track Court-II, Salem, dated 26.09.2008, modifying the judgment made in C.C.No.50 of 2007, on the file of Judicial Magistrate-I, Mettur Dam, dated 19.02.2008 is modified. Consequently, connected miscellaneous petition is closed. Accordingly ordered.