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2013 DIGILAW 2706 (MAD)

R. Kulandaivelu v. Thuran Spinning Mills Ltd.

2013-07-29

C.S.KARNAN

body2013
Judgment :- 1. The Respondent herein / complainant had filed C.C.No.328 of 2001, on the file of Judicial Magistrate No.1, Tiruppur, against the revision petitioner herein / accused stating that the accused had issued a cheque for a sum of Rs.5,26,642/- and the same was dishonoured on presentation. Hence, the case has been filed against the accused. 2. The accused had pleaded not guilty after receiving copy of the complaint and hence the case was proceeded with. On the side of the complainant, two witnesses were examined and 16 documents were marked, namely, Copy of resolution of the complainant's Company, General power of attorney, Statement of accounts, Invoice, Order of confirmation letter, Delivery note, Cheques which were dishonoured, Bank memos, Advocate Notice, Acknowledgment Cards and Bank statements, etc. On the side of the respondent, RW 1 was examined and two documents were marked, namely, Copy of Advocate notice and Reply notice. PW1, had adduced evidence that he is the power agent of the complainant's Company and that the accused had issued cheque dated 29.09.2000 for a sum of Rs.5,26,642/-in favour of the complainant's firm. The same was presented on 10.03.2001 and it was returned with an endorsement of "insufficiency of funds". PW1 further stated that the accused had issued the cheque in order to discharge the legally enforceable debt for a sum of Rs.5,26,642/-. This amount was incurred for the purchase of yarn from the complainant's firm. PW1 further stated that he had issued a legal notice to the accused and even after receipt of the said notice, the cheque amount had not been paid. Supporting his evidence, he had marked the above mentioned documents. 3. PW2, had adduced evidence regarding dishonour of cheque. RW 1, one Gurusamy had adduced evidence that he was the accountant in the accused firm. The accused firm had purchased yarn from the complainant's firm on credit basis and subsequently, the complainant had received the amount on 28.09.2000. The directors of the company namely Govindasamy and Tamilselvan and 10 others kidnapped the accused and thereafter, the accused was set free from the illegal custody of the complainant. In this regard, a complaint had been lodged before the Tiruppur North Police Station. Supporting his evidence, he had marked the above mentioned documents. 4. The directors of the company namely Govindasamy and Tamilselvan and 10 others kidnapped the accused and thereafter, the accused was set free from the illegal custody of the complainant. In this regard, a complaint had been lodged before the Tiruppur North Police Station. Supporting his evidence, he had marked the above mentioned documents. 4. On considering the evidence of both sides and on hearing the arguments of the learned counsel, the learned Magistrate had come to the conclusion that the accused namely Kulandaivelu had committed offence under Section 138 of Negotiable Instruments Act and hence the learned Magistrate sentenced him to undergo one year Rigorous Imprisonment and also directed him to pay compensation of a sum of Rs.5,26,642/-, failing which the accused had to undergo another three months Simple Imprisonment. 5. Against the said conviction and sentence, the accused filed an appeal in C.A.No.377 of 2002, on the file of Additional District and Sessions Court Cum Fast Track Court No.III, Coimbatore. The learned Judge, after hearing the arguments of the learned counsel on either side and on perusing the trial Courts judgment, dismissed the above appeal and confirmed the order of conviction and sentence of trial Court. Against the said dismissal of the above appeal, the revision has been filed. The very competent counsel argued that the legal notice has not been served on the accused. Therefore, the legal formalities had not been adhered to by the complainant to level the complaint against the accused under Section 138 of Negotiable Instruments Act. As such, the complaint is not maintainable before the trial Court. The complainant's averments that the accused Company had purchased yarn to the tune of Rs.10,53,284/- on 18.09.2000 but the said amount had been settled making payments on 28.09.2000, 04.10.2000 and 11.10.2000 to the tune of Rs.8,00,000/- in total. As such, the major portion of the loan amount had been settled. For business transaction, two blank cheques had been issued each for a sum of Rs.5,26,642/-for security purposes and the same were misused by the complainant in order to extort money from the accused. 6. The above revision is pending for more than 8 years and therefore, this Court is constrained to pass final order on the basis of available records. For business transaction, two blank cheques had been issued each for a sum of Rs.5,26,642/-for security purposes and the same were misused by the complainant in order to extort money from the accused. 6. The above revision is pending for more than 8 years and therefore, this Court is constrained to pass final order on the basis of available records. On considering the facts and circumstances of the case and arguments advanced by the learned counsel for the petitioner, this Court does not find any shortcomings in the conclusions arrived at regarding guilt of accused under Section 138 of Negotiable Instruments Act. However, the sentence of Rigorous Imprisonment for one year imposed on the accused is harsh and therefore, this Court reduces the sentence from one year Rigorous Imprisonment to three months Simple Imprisonment. Further, the compensation amount of a sum of Rs.5,26,642/-is modified by this Court as Rs.2,50,000/- as it is found to be appropriate in the circumstances of the case. Now, the accused has to either pay the modified compensation amount of a sum of Rs.2,50,000/- or to undergo Simple Imprisonment for three months. Now, this Court directs the learned Judicial Magistrate No.1, Tiruppur to issue bailable warrant and secure the accused, at once, into judicial custody in order to undergo three months Simple Imprisonment. If the accused deposits the said compensation amount before being remanded into judicial custody, the accused would be set at liberty and the three months Simple Imprisonment imposed on him would not be executed. If the accused, deposits the said compensation amount into the credit of C.C.No.328 of 2001, on the file of Judicial Magistrate No.I, Tiruppur, the complainant is at liberty to withdraw the said amount, after filing a memo, along with a copy of this order. This order has been passed by this Court, after invoking the discretionary power vested with it. 7. In the result, the above revision is partly allowed. Consequently, the conviction and sentence passed in C.A.No.377 of 2002, on the file of Additional District and Sessions Court Cum Fast Track Court No.III, Coimbatore, dated 02.11.2004, confirming the conviction and sentence passed in C.C.No.328 of 2001, on the file of Judicial Magistrate No.1, Tiruppur, dated 01.11.2002, is modified. There is no order as to costs.