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2012 DIGILAW 4546 (MAD)

H. S. Bilkis Ayoob v. Hamsa Krishnan

2012-11-02

C.S.KARNAN

body2012
Judgment :- The revision petitioner/appellant/accused has preferred the present revision in Crl.R.C.No.1701 of 2004 against the judgment made in C.A.No.413 of 2003, on the file of the III Additional Sessions Judge, Chennai, confirming the conviction and sentence made in C.C.No.7107 of 1997, on the file of V Metropolitan Magistrate, Egmore, Chennai. 2. The respondent/complainant's case is as follows:- The accused had purchased lands belonging to the complainant situated at Payanur Village, Tiruthani Taluk, for a total sale consideration of a sum of Rs.3,70,350/-. The accused paid a sum of Rs.1,20,350/-as an advance and agreed to pay a the balance of Rs.2,50,000/- in due course. As a part payment of the said balance, the accused had issued 10 cheques, out of the 10 cheques, 5 cheques bearing No.298691, 298692, 298693, 298694 and 298695, dated 11.02.1997, 05.03.1997, 05.04.1997, 05.05.1997 and 05.06.1997 respectively, each for a sum of Rs.25,000/-drawn on Central Bank of India Branch, Chennai-1, totalling Rs.1,25,000/-, were presented for encashment on 28.06.1997 through the complainant's bankers, viz., Indian Overseas Bank, Periyar Nagar, Perambur, Chennai. The said cheques were returned unpaid with an endorsement of "payment stopped by drawer" and the complainant was intimated of return of cheque on 03.07.1997. The complainant sent a lawyer's notice dated 12.07.1997 which was received by the accused on 17.07.1997. As the accused failed to effect payment of cheque amount, the complainant had filed the present complaint for return of three cheques, viz., cheque No.298691, dated 11.02.1997, cheque No.298692, dated 05.03.1997 and cheque No.298693, dated 05.04.1997 before the V Metropolitan Magistrate, Chennai. 3. On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant's side, two witnesses were examined and fifteen documents were marked as Exs.P1 to P15, viz., Ex.P1-power of attorney given to P.W.1 to adduce evidence, Ex.P2-letter given by accused to complainant regarding payment of Rs.1,20,350/- to complainant, Ex.P3-letter given by accused to complainant requesting him not to deposit the cheques at bank, Ex.P4-letter written by complainant to accused, Exs.P5, P6 and P7, cheques given by accused to complainant, Exs.P8, P9 and P10, return memos, Exs.P11-debit advice, Ex.P12-copy of lawyer's notice, Ex.P13-acknowledgment card, Ex.P14-power of attorney given to P.W.2., Ex.P15-bank account statement of accused. On the side of the accused, one witness was examined and seven documents were marked as Exs.R1 to R7, viz., Ex.R1-complaint given by complainant against accused at the Central Crime Branch Police, Ex.R2-notice sent by the police to the wife of the P.W.1, Exs.R3 to R7-document showing registration of sale deed on 20.11.1996, before the Sub Court for land in Doc.Nos.1778/96, 1736/96, 1779/96, 1735/96 and 1737/96. 4. P.W.1., the husband of the complainant had adduced evidence that he is the power of attorney holder of the complainant and had marked Ex.P1, the power of attorney. P.W.1 had adduced evidence which is corroborative of the statements made in the complaint and in support of his evidence, he had marked the exhibits listed as Exs.P1 to P13. 5. P.W.2, Mr. Subramanian had adduced evidence that he is the Assistant Manager of Central Bank of India, Madras Main Branch and had marked the power of attorney given to him by his bank as Ex.P14. He deposed that when the cheques marked as Exs.P5, P6 and P7 were presented in their bank for collection, it were returned with an endorsement of "payment stopped by drawer" through return memos marked as Exs.P8, P9 and P10. He deposed that the balance in the accused's account as on 01.07.1997 was Rs.1,611/-. In support of his evidence, he had marked Exs.P15, the bank account statement of accused. 6. R.W.1, Kulasekaran had adduced evidence that he is the Sub Registrar at the Sub Court, Thiruvalankadu and the sale deeds in Doc.Nos.1778/96, 1736/96, 1779/96, 1735/96 and 1737/96 had been registered on 20.11.1996 and had been marked as document as per Exs.R3 to R7. He deposed that the Vendor's name in the said documents have been mentioned as Amsa Krishnan and that she had not given any complaint to him regarding non-receipt of payment for the said sale of land. 7. It was contended on the side of the accused that the complaint registered against the accused, by the complainant, with Central Crime Branch Police in C.C.No.1213 of 1997 under Section 420 r/w 34 had been closed as "mistake of facts". 7. It was contended on the side of the accused that the complaint registered against the accused, by the complainant, with Central Crime Branch Police in C.C.No.1213 of 1997 under Section 420 r/w 34 had been closed as "mistake of facts". It was pointed out that the accused had issued 10 cheques for the balance payment of Rs.2,50,000/-to the complainant, as security and that on the same day had given the letter marked as Ex.P2, and that the balance amount had been paid to the complainant on 18.11.1996 after registration of the sale deeds. It was pointed out that the complainant, even after receipt of payment had not returned the cheques given as security. It was pointed out that the accused had also asked the complainant not to deposit the said cheques and that as the wife of the complainant had been receiving treatment at the Hospital, he had not been able to get the cheques, issued as security, from her. It was also contended that the accused had also given a stop payment advice to his bankers and that the complainant, in spite of his instructions not to deposit the said cheques as per Ex.P3, had misused the cheques given as security. 8. Though it had been contended on the side of the accused that the balance payment was made to the complainant on the date of registration of the sale deed, no documentary evidence had been furnished to show payment of the balance amount. Hence, the learned Magistrate, after 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 six months simple imprisonment and also directed the accused to pay compensation of a sum of Rs.75,000/-to the complainant within two months from the date of this order; in default of payment of compensation, the accused was to undergo further period of simple imprisonment for three months. 9. Aggrieved by the conviction and sentence imposed by the trial Court, the accused has filed an appeal in C.A.No.413 of 2003, before the III Additional Sessions Judge, Chennai. The learned judge, after considering the oral and documentary evidence and after perusal of the trial Court's order, confirmed the conviction and sentence imposed by the trial Court. 9. Aggrieved by the conviction and sentence imposed by the trial Court, the accused has filed an appeal in C.A.No.413 of 2003, before the III Additional Sessions Judge, Chennai. The learned judge, after considering the oral and documentary evidence and after perusal of the trial Court's order, confirmed the conviction and sentence imposed by the trial Court. The learned judge also confirmed the award of compensation of Rs.75,000/- granted by the trial Court, but modified the sentence of simple imprisonment on the accused on default of payment of compensation from three months simple imprisonment to two months simple imprisonment. 10. Aggrieved by the modified judgment of the appellate Court, the appellant / accused has preferred the present revision. 11. The learned counsel for the revision petitioner has contended that the learned Sessions Judge came to a wrong conclusion that the cheque was issued for consideration, when admittedly the sale deed has been executed by the complainant, in which she has declared that the entire sale consideration has been received. It was pointed out that the blank cheques given prior to the sale deed to the complainant had been misused even after she has received the entire consideration under the sale deed. It was pointed out that the lower Court erred in not attaching any credence to the evidence of the Sub Registrar, R.W.1, Kulasekaran, and the Ex.R3 to R7 conclusively establish that there is no debt or liability in respect of the sale. It was contended that the Courts below ought to have held that if really there was any money due in respect of the part sale consideration, it would have been mentioned in the sale deed especially if it related to the cheques already in the possession of the complainant. It was also pointed out that according to P.W.1, who is the husband of the complainant, he has read the sale deed and thereafter the complainant affixed her signature to the document. It was contended that the learned Sessions Judge, failed to take note of the fact that the notice has been given by the petitioner not to present the cheques and that the petitioner has also given intimation to the bank prior to the presentation of cheques. The learned counsel for the revision petitioner further submitted that the entire sale consideration has been paid before the Sub Registrar and that the sale deed was registered. The learned counsel for the revision petitioner further submitted that the entire sale consideration has been paid before the Sub Registrar and that the sale deed was registered. The Sub Registrar, after making due enquiries regarding payment observed that the accused had made payment of entire sale consideration and the same was received by the complainant. The complainant also gave oral endorsement that she had received the entire amount and that the sale deed has been registered on his file. As an after strategy, the complainant had filed the complaint against the accused on the strength of the cheques, which had been issued for security purpose. The learned counsel, in support of his arguments has cited the following judgments:- (i) Bhubaneshwar Devt. Authority Vs. Susanta Kumar Mishra reported in (2009) 4 SCC 684 "21. When a lessee signs without protest an agreement agreeing to pay interest at a given rate from a given date in given circumstances, and does not contend that the term relating to instalments or interest is invalid or inequitable, it is not open to the consumer forum to grant any relief. A demand for any amount due in terms of unchallenged terms of an agreement, does not furnish a cause of action to the lessee/allottee to approach the consumer forum.'" (ii) Santhakumari v. Lakshmiammal reported in 2004 (2) CTC 259 "14. A Contract tainted by fraud itself cannot be construed as void but only voidable at the option of the party defrauded. So, until it is avoided, the transaction is valid. If there is a fraudulent misrepresentation with respect to the contents mentioned in the document, it has to be held as it is voidable. If such fraudulent misrepresentation was regarding character of a document, the transaction has to be held as void. 17. Coming to the present case, it is not in dispute that the predecessors-in-title of the respondents/plaintiffs have been in possession of the suit properties as tenants under the vendors for a long number of years. If such fraudulent misrepresentation was regarding character of a document, the transaction has to be held as void. 17. Coming to the present case, it is not in dispute that the predecessors-in-title of the respondents/plaintiffs have been in possession of the suit properties as tenants under the vendors for a long number of years. The representation made in the sale deeds Exs.A1, A4 and A7, even if they are taken as fraudulent, they are only with reference to the contents of the sale deeds and so the documents, Exs.A1,A4 and A7 have to be construed as voidable and unless the said documents are avoided by filing a suit to set aside the same, the respondents/plaintiffs cannot sustain the suits only for recovery of purchase monies. Moreover, in this case, no evidence is available to show that a third party has come and claimed or disturbed the possession of the respondents/purchasers of the suit properties on the ground that the vendors are not the owners thereof but the third party is the owner of the properties. The respondents/purchasers are not new to the suit properties, but they are closely related to the tenants under the vendors. For a long number of years, they have not been disturbed by any threat of claiming title by third parties. 19. In view of the above, it is clear that the respondents/ plaintiffs cannot sustain the suit only for recovery of purchase monies without asking for setting aside the sale deeds, Exs.A1, A4 and A7. The courts below have not properly appreciated the issue on the basis of law laid down in various decisions." (iii) Vishwambhar v. Laxminarayana reported in 2001 (3) CTC 316 "9. ...... As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold then a suit without such a prayer was of no avail to the plaintiffs. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. In all probability realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, plaintiff no.2 Digamber attained majority on 5th August, 1975 and Vishwambhar, plaintiff no.1 attained majority on 20th July, 1978. Though the suit was filed on 30th November, 1980 the prayer seeking setting aside of the sale deeds was made in December, 1985. Article 60 of the Limitation Act, prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial Court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digambar the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December, 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances the amendment of the plaint could not come to the rescue of the plaintiff." 12. The learned counsel for the complainant submitted that the accused paid a sum of Rs.1,20,350/- as cash to the complainant towards sale consideration. For the balance of sale consideration of a sum of Rs.2,50,000/-, the accused had issued cheques in favour of complainant. The learned counsel for the complainant submitted that the accused paid a sum of Rs.1,20,350/- as cash to the complainant towards sale consideration. For the balance of sale consideration of a sum of Rs.2,50,000/-, the accused had issued cheques in favour of complainant. It was an admitted fact that the complainant had given an advertisement to sell her land. After coming to know the advertisement, the accused had approached the complainant to purchase the said land. Accordingly, negotiations were effected for the sale of said land. Hence, the complainant received a part sale consideration. The accused agreed to pay the balance sale consideration and accordingly, she had issued cheques in favour of the complainant in order to clear the balance sale consideration, which is a legally enforceable debt. As such, the accused is liable to pay the cheque amount. The learned counsel further submitted that it is the usual practice for the seller and purchaser to appear before the Registrar for registration of sale deed. At that time the Registrar had made a formal enquiry regarding sale consideration, but the Registrar had not witnessed that the amount had been paid by the accused to the complainant in his presence at the time of registering the sale deed. The accused, depending upon the Sub Registrar's support, has stated that the amount has been paid by her in the presence of the Sub Registrar. The evidence of the Registrar is not sustainable as he is a biased witness who will be put into hardship if he admits the factual position. Therefore, he had no option but to support the accused. The learned counsel has cited the following judgments in support of his contentions:- (i) Lodd Govindoss Krishnadas Varu Vs. P.M.A.R.M. Muthiah Chetty reported in AIR 1925 MAD 660 "1. Two main questions, one of law and one of fact, are raised in the issues framed in this suit. The question of fact can be determined only on oral evidence being admitted with regard to certain allegations made by the defendant and the question of law relates to the admissibility of that oral evidence. The question of law raised is therefore really in the nature of a preliminary issue. The question of fact can be determined only on oral evidence being admitted with regard to certain allegations made by the defendant and the question of law relates to the admissibility of that oral evidence. The question of law raised is therefore really in the nature of a preliminary issue. At one stage I thought whether it would not really be wiser to allow also oral evidence to be adduced and to record a finding thereon for the contingency of a higher tribunal taking a different view, but Mr. Radhakrishniah, the learned vakil for the plaintiff, intimated to me that his client was willing to take the risk and cost of the Court of Appeal remanding the case in the event of my decision on the question of law being in his favour and the same being set aside in appeal." (ii) Mohammad Taki Khan Vs. Jang Singh reported in AIR 1935 AII529 "1. Three questions have been referred to this Full Bench far answer by the Division Bench before which the plaintiff's appeal arising out of a suit for sale on the basis of a mortgage-deed came up for hearing. On 17th August 1926, a sale deed, was executed by the plaintiff and his uncle along with their wives in favour of the two vendees including the present defendant. The sale deed purported to be for Rs. 11,400, out of which a part was paid in cash and another part was set off against a previous debt and the balance of Rs. 5,000 was stated to have remained in the hands of the vendees who were liable to pay the amount to the vendors. On the same date a mortgage deed was executed by one of the vendees in favour of the plaintiff and his uncle for this sum of Rs. 5,000, under which the mortgagor agreed to pay this amount to the two vendors and hypothecated his immovable property as security for the amount. There was, of course, an admission that this sum was due under the contemporaneous sale deed and would be paid later. The present plaintiff admits to have received some payments and brought the suit to recover Rs. 3,300, the balance out of Rs. 5,000 which according to him had remained unpaid. The defendant set up the defence that the principal consideration of the sale deed was not Rs. 11,400 but only Rs. The present plaintiff admits to have received some payments and brought the suit to recover Rs. 3,300, the balance out of Rs. 5,000 which according to him had remained unpaid. The defendant set up the defence that the principal consideration of the sale deed was not Rs. 11,400 but only Rs. 8,400 and that the extra sum of Rs. 3.000 had been entered therein fictitiously in order to defeat and delay possible preemptors. A question arose whether it was open to the defendant to adduce evidence to show that a part of the sale consideration was really fictitious. Such evidence was allowed by the Courts below and they have come to the concurrent finding that this amount was in fact fictitious. The first question referred to the Full Bench is: Whether evidence tending to show that the consideration for the said sale was a lesser sum than that stated in the sale-deed of the 17th August 1926 was admissible." 13. Per contra, the learned counsel for the revision petitioner submitted that at the time of admission, this Court put a condition, on the accused to deposit a sum of Rs.25,000/-and the same was complied with. 14. 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 imposed on the accused 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. The compensation amount granted by the Courts below remains unaltered. Therefore, this Court directs the accused to pay the balance amount of a sum of Rs.50,000/-into the credit of C.C.No.7107 of 1997, on the file of V Metropolitan Magistrate, Egmore, Chennai. The accused has to either pay compensation or to undergo simple imprisonment for a period of two months. This Court directs the learned V Metropolitan Magistrate, Egmore, Chennai, to issue bailable warrant and secure the accused forthwith. The accused has to either pay compensation or to undergo simple imprisonment for a period of two months. This Court directs the learned V Metropolitan Magistrate, Egmore, Chennai, to issue bailable warrant and secure the accused forthwith. If the accused remits the balance compensation amount of a sum of Rs.50,000/-into the credit of C.C.No.7107 of 1997, on the file of V Metropolitan Magistrate, Egmore, Chennai, before being remanded into judicial custody, then the accused would be set at liberty and the sentence of simple imprisonment of two months imposed on her would not be executed any further. If the accused deposits the said amount, it is open to the complainant to withdraw the said compensation, including earlier deposited amount of Rs.25,000/- (if not withdrawn earlier) after filing a Memo before the trial Court. If the accused had not deposited the said compensation amount, even then, the complainant is entitled to receive the earlier deposited amount of a sum of Rs.25,000/-after filing a Memo. This order has been passed after invoking its discretionary power vested with it. 15. Resultantly, the above revision is partly allowed with the above modifications. Consequently, the conviction and judgment passed in C.A.No.413 of 2003, on the file of the III Additional Sessions Judge, Chennai, dated 30.09.2004, modifying the judgment made in C.C.No.7107 of 1997, on the file of V Metropolitan Magistrate, Egmore, Chennai dated 13.11.2003 is modified. Accordingly ordered.