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2012 DIGILAW 4688 (MAD)

V. S. Gunaseelan v. Aruchamy

2012-11-15

C.S.KARNAN

body2012
Judgment :- 1. The revision petitioners / appellants / accused have preferred the present revision in Crl.R.C.No.529 of 2007 against the judgment made in C.A.No.165 of 2006, on the file of Additional District and Sessions Court, Fast Track Court-III, Coimbatore, confirming the conviction and sentence passed in C.C.No.186 of 2001, on the file of Judicial Magistrate-II, Pollachi. 2. The respondent / complainant's case is as follows:- The accused had borrowed a sum of Rs.6,00,000/-from the complainant on 30.03.2001. On demand made by the complainant, the accused had issued a cheque dated 28.05.2001 for a sum of Rs.5,00,000/-drawn on Tamil Nadu Mercantile Bank, Pollachi Branch to and in favour of complainant. When the complainant presented the said cheque for encashment with his bankers, viz., Corporation Bank, Pollachi Branch, it was returned unpaid with an endorsement of insufficient funds. The complainant sent a legal notice to the accused on 16.06.2001 through R.P.A.D. and certificate of posting. The accused did not receive the notice sent through R.P.A.D. but had received the notice sent through certificate of posting. The accused sent a reply notice but failed to effect payment. Hence, the complainant had preferred a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act. 3. On being questioned, the accused pleaded not 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 11.06.2001, Ex.P2-memo dated 13.06.2001, Ex.P3-copy of bank account statement of accused, Ex.P4-promissory note dated 30.03.2001, Ex.P5-copy of lawyer's notice dated 16.06.2001, Ex.P6-notice sent to accused through R.P.A.D., Ex.P7-receipt for notice sent through certificate of posting, Ex.P8-reply notice dated 02.07.2001. On the side of the accused, one Jayadevi, the handwriting expert was examined as R.W.1 and no document was marked. 4. P.W.1., Jayaprakash, the Manager of Tamil Nadu Mercantile Branch had adduced evidence that the accused had a current account in their bank and that the said cheque leaf Ex.P1 had been issued by their bank to the accused. P.W.1 deposed that when the said cheque was presented for collection in their bank on 13.06.2001, it was returned unpaid due to "insufficient funds" in the account of accused and that the balance in the account of accused was Rs.1/- only at the time of presentation of cheque. P.W.1 deposed that when the said cheque was presented for collection in their bank on 13.06.2001, it was returned unpaid due to "insufficient funds" in the account of accused and that the balance in the account of accused was Rs.1/- only at the time of presentation of cheque. In support of his evidence, he had marked Ex.P2, the return memo and Ex.P3-the bank account statement of accused. 5. P.W.2, the complainant had adduced evidence that he is an agriculturist and that the accused had borrowed a loan of Rs.6,00,000/-from him on 30.03.2001 and had also executed a promissory note (Ex.P4) to this effect. He further deposed that on demand made by him, the accused had issued a cheque (Ex.P1) dated 11.06.2001, for a sum of Rs.5,00,000/- as part payment of the said loan, drawn on Tamil Nadu Mercantile Bank, Pollachi Branch. P.W.2 deposed that when he deposited the said cheque for encashment with his bankers, viz., Corporation Bank, Pollachi Branch on 13.06.2001, it was returned unpaid with an endorsement of insufficient funds in the account of accused through return memo marked as Ex.P.2. P.W.2 deposed that he sent a lawyer's notice to the accused on 16.06.2001 (Ex.P5) through R.P.A.D. and certificate of posting. He deposed that the notice sent through R.P.A.D. was returned unserved (Ex.P6) and the receipt for notice sent through certificate of posting has been marked as Ex.P7. P.W.2 further deposed that the accused had sent a reply notice dated 02.07.2001 (Ex.P8) making false allegations. 6. P.W.3, Sivasami had adduced evidence that he is acquainted with the complainant and accused and that he had prepared the promissory note marked as Ex.P4 and that he had also signed as a witness in the said pronote. P.W.3 deposed that the accused had borrowed a sum of Rs.6,00,000/-from the complainant as per Ex.P4 and that the accused had affixed two of his signatures in the stamped pronote. He further deposed that he had seen the accused affixing his signature in the pronote. 7. R.W.1., Jayadevi, the handwriting expert had adduced evidence that the age of the stamp contained in the pronote and that the signatures of the accused and the other writings in the pronote could be determined accurately only by the Government Forensic Department at Nasik and that she would not be able to ascertain the same. 8. 7. R.W.1., Jayadevi, the handwriting expert had adduced evidence that the age of the stamp contained in the pronote and that the signatures of the accused and the other writings in the pronote could be determined accurately only by the Government Forensic Department at Nasik and that she would not be able to ascertain the same. 8. It is seen that the accused had not disputed his signature in the exhibit marked as P1. It was contended on the side of the accused that the blank signed cheque and blank signed pronote given as security about 10 years back during the course of business transactions between the complainant and accused had been misused by the complainant and that the accused had not borrowed any loan of Rs.6,00,000/-as alleged, from the complainant on 30.03.2001 and that Ex.P4 pronote has not been issued on that date. 9. However, the learned Magistrate, observed that the evidence of R.W.1. does not throw any light on the contention made by the accused that the cheque was issued as security, 10 years back. The learned Magistrate also observed that in spite of sufficient time given to the accused, i.e, about four years, the accused had not been able to lead in any rebuttal evidence in support of his case. 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 a period of one year and also imposed a fine of Rs.5,000/-in default of payment of fine, the accused was to undergo further period of simple imprisonment for six months. 10. Aggrieved by the conviction and sentence imposed by the trial Court, the accuse has preferred an appeal in C.A.No.165 of 2006 before the Additional District and Sessions Court, Fast Track Court-III, Coimbatore. The learned judge after scrutiny of the oral and documentary evidence dismissed the appeal and confirmed the conviction and sentence and compensation imposed by the trial Court. 11. Aggrieved by the dismissal of his appeal, the accused has preferred the present revision. 12. The learned counsel for the revision petitioner has contended that the petitioners had no necessity to borrow money from the complainant and that the cheques in question were given to the complainant as security in their business dealings. 11. Aggrieved by the dismissal of his appeal, the accused has preferred the present revision. 12. The learned counsel for the revision petitioner has contended that the petitioners had no necessity to borrow money from the complainant and that the cheques in question were given to the complainant as security in their business dealings. It was contended that the complainant had misused the cheques to take revenge against the petitioners. 13. The learned counsel for the complainant submitted that in order to prove the loan transactions between the accused and complainant, the witness P.W.3, Sivasami had adduced evidence that the accused had duly executed pronote in favour of the complainant. The learned counsel further submitted that in order to discharge the legally enforceable debt, the cheque had been issued and the same had been returned with an endorsement of insufficiency funds. Therefore, the complainant had followed all legal formalities and filed the case before the learned Magistrate and the case was proved beyond doubt. The learned counsel further submitted that the complainant had proved his case. As such, he is entitled to receive compensation from the accused. But, the same was not considered by the Courts below. 14. Per contra, the learned counsel for the accused submitted that no documentary evidence had been produced to show as to how the complainant had paid a sum of Rs.6,50,000/-, Rs.1,00,000/- and Rs.5,00,000/-within a short and brief period. So, the claim is an artificial one and is also not bonafide. The learned counsel further submitted that the complainant had received blank cheque for security purpose and the same had been misused for his own convenience. As such, the complainant's case is not sustainable under law and facts. 15. 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 to punish 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 of one year simple imprisonment to that of two months simple imprisonment as it is found to be appropriate. The complainant had proved his case before the Courts below. Therefore, he is entitled to receive compensation. However, the sentence of simple imprisonment for one year imposed on the accused is on the higher side. Therefore, this Court reduces the sentence of one year simple imprisonment to that of two months simple imprisonment as it is found to be appropriate. The complainant had proved his case before the Courts below. Therefore, he is entitled to receive compensation. This Court directs the accused to pay a compensation of Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand only) to the complainant. The accused has to either pay the compensation amount of a sum of Rs.1,50,000/- or to undergo sentence of simple imprisonment for two months. This Court directs the learned Judicial Magistrate-II, Pollachi, to issue bailable warrant and secure the accused forthwith. If the accused remits the compensation amount of a sum of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) into the credit of C.C.No.186 of 2001, on the file of Judicial Magistrate-II, Pollachi, before being remanded into judicial custody, he would be set free and the sentence of simple imprisonment of two months imposed on the accused, by this Court, would not be operated against him. If the accused deposits the said compensation amount, it is open to the complainant to withdraw the said amount from the trial Court after filing a Memo. If the accused pays the said compensation amount, then the fine amount paid by the accused is to be refunded to him. This order has been passed by this Court after invoking the discretionary power vested with it. 16. Resultantly, the above revision is partly allowed. Consequently, the judgment and conviction passed in C.A.No.165 of 2006, on the file of Additional District and Sessions Court, Fast Track Court-III, Coimbatore, dated 13.03.2007, confirming the conviction and sentence passed in C.C.No.186 of 2001, on the file of Judicial Magistrate-II, Pollachi, dated 05.04.2006 is modified. Accordingly ordered.