Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4522 (MAD)

Martin Felix Celvia v. R. Radhakrishnan

2012-11-01

C.S.KARNAN

body2012
Judgment :- 1. The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.1211 of 2011 against the judgment made in C.A.No.144 of 2010, on the file of learned Additional District and Sessions Judge, Fast Track Court-III, Virudhachalam, confirming the order made in C.C.No.1238 of 2008, on the file of the learned District Munsif cum Judicial Magistrate, Neyveli. 2. The respondent / complainant's case is as follows:- The accused had borrowed a sum of Rs.1,50,000/-from the complainant on 11.02.2008, for her family expenses and promised to repay the same within one month. On demand made by the complainant, the accused issued a cheque dated 08.04.2008, drawn on Canara Bank, Neyveli-3, for the said sum, to and in favour of the complainant. When the complainant presented the said cheque for encashment with his bankers, viz., ICICI Bank, Main Bazar, Neyveli, on 08.04.2008, it was returned unpaid with an endorsement of "funds insufficient", and the complainant was intimated of return of cheque on 09.04.2008. The complainant sent a legal notice to the accused on 21.04.2008, which was received by the accused on 09.05.2008. As the accused had failed to effect payment of cheque amount, the complainant had filed a complaint against the accused for an ofence under Section 138 of Negotiable Instruments Act before the Judicial Magistrate, Neyveli. 3. On being questioned, the accused not pleaded guilty and hence trial was conducted. On the side of the complainant, three witnesses were examined and eight documents were marked as Exs.P1 to P8, viz., Ex.P1-cheque dated 08.04.2008, Ex.P2-banker's memo dated 09.04.2008, Ex.P3-lawyer's notice dated 21.04.2008, Exs.P4 and P5acknowledgment cards, Ex.P6-power of attorney deed in favour of Ramesh, Ex.P7-reply notice dated 23.05.2008, Ex.P8-rejoinder notice dated 10.06.2008. On the side of the accused, no witness, no documents. 4. P.W.1, the power of attorney holder of the complainant had adduced evidence which is corroborative of the statements made in the complaint and in support of his evidence, he had marked the documents listed as Exs.P1 to P8. 5. P.W.2, Mr.Rajesh, the Manager of ICICI Bank had deposed in his evidence that when the cheque marked as Ex.P1 was presented at their bank on 08.04.2008, it was sent for collection to Canara Bank, Neyveli for collection and it was returned with an endorsement of "funds insufficient" on 09.04.2008. 6. 5. P.W.2, Mr.Rajesh, the Manager of ICICI Bank had deposed in his evidence that when the cheque marked as Ex.P1 was presented at their bank on 08.04.2008, it was sent for collection to Canara Bank, Neyveli for collection and it was returned with an endorsement of "funds insufficient" on 09.04.2008. 6. P.W.3, Mr.Pentland, the officer of Canara Bank, Neyveli had adduced evidence that when the cheque marked as Ex.P1 was presented at their bank for collection on 09.04.2008, it was returned unpaid on the same day with an endorsement of "funds insufficient" in the account of the accused. 7. The learned Magistrate, observed that the accused had not denied the receipt of Rs.1,50,000/- from the complainant and that she had not denied the issuance of Ex.P1 to complainant. In the reply notice marked as Ex.P7, it is seen that the accused had requested for three months to settle the balance amount to the complainant. The learned Magistrate, observed that the accused had not chosen to cross-examine P.W.1 to P.W.3 and had not come forward to deny her liability. 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 her to undergo simple imprisonment for one year and also imposed a fine of Rs.5,000/-on her, in default of payment of fine, the accused was to undergo further period of simple imprisonment for six months. The learned Magistrate further awarded a compensation of Rs.2,500/-to the compensation to be paid from out of the fine amount imposed on the accused. The imprisonment already undergone by the accused, if any shall be set off as per Section 428 of Cr.P.C. 8. Aggrieved by the conviction and sentence imposed by the trial Court, the accused had preferred an appeal in C.A.No.144 of 2010 before the Additional District and Sessions Judge, Fast Track Court-III, Virudhachalam. The learned judge, after considering the oral and documentary evidence and on scrutiny of the trial Court's order, dismissed the appeal and confirmed the order of the trial Court. 9. Aggrieved by the dismissal of appeal, the appellant / accused has preferred the present revision. 10. The learned counsel for the revision petitioner has contended that the orders passed by the Courts below are against the established principles of natural justice. 9. Aggrieved by the dismissal of appeal, the appellant / accused has preferred the present revision. 10. The learned counsel for the revision petitioner has contended that the orders passed by the Courts below are against the established principles of natural justice. It was contended that the trial Court did not give sufficient time and opportunity for the petitioner / accused to establish the case. The learned counsel for the revision petitioner further submitted that the complainant had stated that he had paid a sum of Rs.2,00,000/- as loan on 12.02.2008 and also paid a loan of Rs.1,50,000/-to the accused on 11.02.2008, for which the accused had issued two cheques. Both the cheques were presented by the complainant for collection on 08.04.2008. It was contended that the complainant had paid a sum of Rs.3,50,000/-to the accused within a short span of time as loan. Actually, the complainant has no financial capacity to advance such huge sum of a sum of Rs.3,50,000/-. As such, the alleged transaction between the accused and complainant herein as well as that in C.C.No.168 of 2008, as stated by the complainant is not a bona fide one. The purpose of advancement of loan has been mentioned as family expenses. The accused does not have the necessity to borrow such a huge amount for family expenses. The complainant had not mentioned the rate of interest. The learned counsel further submitted that the complaint which has been levelled against the accused under Section 138 of Negotiable Instruments Act is not maintainable, since the issuance of cheque is not a genuine one. The learned judge had not considered the paying capacity of the complainant. Further, the trial Court had imposed a sentence, fine and compensation which is not sustainable under law. 11. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel for the revision petitioner and on perusing the impugned judgments of the Courts below, this Court does not find any discrepancy in the said judgment in the conclusions arrived at for convicting the accused under Section 138 of Negotiable Instruments Act. However, the sentence of simple imprisonment for one year imposed on the accused is on the higher side. Therefore, this Court reduces the sentence from one year to two months as it is found to be appropriate in the instant case. The complainant had proved his case against the accused. However, the sentence of simple imprisonment for one year imposed on the accused is on the higher side. Therefore, this Court reduces the sentence from one year to two months as it is found to be appropriate in the instant case. The complainant had proved his case against the accused. Therefore, this Court awards a compensation of a sum of Rs.50,000/-(Rupees Fifty Thousand only) to the complainant payable by the accused. The accused has to either pay the compensation of a sum of Rs.50,000/- or to undergo simple imprisonment for two months, as per this Court's order. This Court directs the learned District Munsif cum Judicial Magistrate, Neyveli to issue bailable warrant on the accused and secure him into judicial custody in order to undergo two months simple imprisonment. If the accused remits the compensation amount into the credit of C.C.No.1238 of 2008, on the file of the learned District Munsif cum Judicial Magistrate, Neyveli before being remanded into judicial custody, she would be set at liberty and the sentence of simple imprisonment of two months imposed on her would not be operated. If the accused deposits the said compensation amount, it is open to the complainant to withdraw the said sum from the trial Court, after filing a Memo. This compensation amount is exclusive of the earlier compensation of Rs.2,500/- which had been awarded by the learned District Munsif cum Judicial Magistrate, Neyveli. If the accused deposits the said compensation amount, as per this Court's order, then the fine amount of a sum of Rs.2,500/-paid by the accused is to be refunded to her. This order has been passed by this Court after invoking the discretionary power vested with it. 12. Resultantly, the above revision is partly allowed with the above modifications. Consequently, the judgment and conviction passed in C.A.No.144 of 2010, on the file of learned Additional District and Sessions Judge, Fast Track Court-III, Virudhachalam, dated 09.08.2011, confirming the conviction and sentence passed in C.C.No.1238 of 2008, on the file of the learned District Munsif cum Judicial Magistrate, Neyveli, dated 22.11.2010 is modified. Accordingly ordered. Consequently, connected miscellaneous petition is closed.