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2015 DIGILAW 1587 (MAD)

Rathnamal Antony v. Malar

2015-03-23

M.SATHYANARAYANAN

body2015
JUDGMENT : 1. The revision petitioner is the accused in C.C.No.58 of 2008 on the file of the Court of Judicial Magistrate No.I, Sivagangai and the said private complaint was filed by the respondent/complainant seeking prosecution for the commission of the offence under Section 138 of the Negotiable Instruments Act, 1881. The trial Court, vide judgment dated 30.09.2009, has found her guilty for the commission of the offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced her to undergo simple imprisonment for one year and pay compensation of Rs.5,50,000/- and also cost of Rs.10,000/-, aggregating to a sum of Rs.5,60,000/-. The accused, aggrieved by the conviction and sentence recorded by the trial Court, has preferred an appeal in C.A.No.73 of 2009 on the file of the Court of Sessions Judge, Sivagangai and the lower appellate Court, vide impugned judgment dated 08.10.2012, has dismissed the appeal and thereby confirmed the conviction and sentence imposed by the trial Court and aggrieved by the same, the accused has filed this revision. 2. The facts narrated in brief necessary for the disposal of this revision are as follows; It is the case of the respondent/complainant that the revision petitioner/accused has borrowed a sum of Rs.5,50,000/- on 10.10.2007 by way of loan and at the time of receiving loan, she has received a cheque dated 10.11.2007 for a sum of Rs.5,50,000/-, drawn in Indian Bank, Okkur Branch (Ex.P1). The said cheque was presented for collection by the complainant in a bank viz., Ramnad District Co-operative Bank, Paramakudi and it was dishonoured by the said bank on 14.11.2007 (vide Ex.P2). The complainant issued a statutory notice under Ex.P3 and it was returned with an endorsement "not claimed" (Ex.P4). Since the revision petitioner/accused did not comply with the terms of Ex.P3 - statutory notice, the respondent/complainant has filed the said complaint. 3. During the course of trial, the complainant examined herself as PW1 and examined her husband Mr.Raju as PW2 and marked documents as Exs.P1 to P6. The accused was questioned under Section 313(1)(b) of Cr. P.C. with regard to the incriminating circumstances made out against her in the evidences tendered by the complainant and she denied it as false. On the side of the accused, she examined herself as DW1 and no document was marked. 4. The accused was questioned under Section 313(1)(b) of Cr. P.C. with regard to the incriminating circumstances made out against her in the evidences tendered by the complainant and she denied it as false. On the side of the accused, she examined herself as DW1 and no document was marked. 4. The trial Court on consideration of oral and documentary evidence convicted and sentenced the accused as stated above. The appeal preferred by her also ended in dismissal and hence this revision. 5. The learned counsel appearing for the revision petitioner/accused would submit that pendency of the appeal, the revision petitioner/accused therein had filed Crl.M.P.No.1626 of 2011 for reception of additional documents and the respondent/complainant had also filed Crl.M.P.No.1792 of 2011 for reception of additional documents and both the petitions came to be allowed and additional documents came to be marked as Exs.D1 to D5 and P7 respectively. The learned counsel appearing for the revision petitioner/accused would contend that the father-in-law of the respondent/ complainant viz., Madasamy has filed a suit in O.S.No.42 of 2007 on the file of the District Court of Ramnad against her husband for recovery of a sum of Rs.5,00,000/- with interest at the rate of 12% per annum and the cheque given to the father-in-law of the respondent/complainant has been misused and by utilizing the service of the daughter-in-law, the present false complaint came to be lodged and it is in fact amount to double claim on the part of the father-in-law of the respondent /complainant. 6. It is the further submission of the learned counsel appearing for the revision petitioner/accused that the impugned cheque in question is not at all supported by any consideration and therefore any amount due and payable under the cheque cannot be termed as legally enforceable debt and the same has been completely overlooked by the lower appellate Court, inspite of the additional documents came to be marked, and prays for interference. 7. Per contra, the learned counsel appearing for the respondent/complainant would submit that the Courts below on proper appreciation of oral and documentary evidence have recorded findings to the effect that the revision petition/accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act and this Court in exercise of its revisional jurisdiction may not interfere with the said findings and prays for dismissal of this revision. 8. 8. In response to the said submission, the learned counsel appearing for the revision petitioner/accused would contend that in the event of this Court reaching a conclusion that the revision deserves dismissal, the sentence of imprisonment awarded as well as the cost imposed by the trial Court may be set aside. 9. This Court has carefully considered the rival submissions and also perused the impugned judgments passed by the Courts below as well as the materials on record. 10. The primordial submission projected by the revision petitioner/accused is that both Madasamy - father-in-law of the respondent/complainant and the respondent/complainant are residing in one and the same premises and the cause of action for filing the suit was dated 22.10.2007 and whereas the cheque in question came to be issued on 10.10.2007 and it would clearly reveal the fact that the service of the daughter-in-law was utilised by the father-in-law viz., Madasamy to file this false complaint. 11. This Court has gone through the impugned judgment passed by the lower appellate Court. The lower appellate Court has recorded its findings that as per Ex.P7 - Family Card, the respondent/complainant is having a separate family card and is residing in the first floor of the very same house in which her father-in-law is residing and her father-in-law is residing in the ground floor. Simply because daughter-in-law and father- in-law are residing in one and the same premises, it cannot be presumed that the father-in-law utilising the service of the daughter-in-law filed this false complaint. In fact, the ration card marked as Ex.P7 reveals that both are residing separately though in the very same premises. 12. The lower appellate Court has also considered the oral testimony of PW-1 that by pledging the jewels and by internal arrangements, she has advanced loan to the revision petitioner / accused. The trial Court has also considered the plea of discharge pleaded by the accused and recorded its findings that inspite of the settlement of loan, no demand was made for return of pro-note and cheque, and towards discharge also no receipt has been produced to believe her version. The trial Court has also considered the plea of discharge pleaded by the accused and recorded its findings that inspite of the settlement of loan, no demand was made for return of pro-note and cheque, and towards discharge also no receipt has been produced to believe her version. The lower appellate Court has also considered that during the course of trial, the revision petitioner/accused took a defence that she has signed only in a blank cheque, marked as Ex.P1 and remaining portion of the cheque was filled up by the respondent/ complainant and in this regard, she has filed a petition for sending the cheque in question for expert opinion and later on she withdrew the application and the trial Court in exercise of its power under Section 73 of the Indian Evidence Act has compared the cheque and found Ex.P1 was completely filled up by the revision petitioner/accused. The lower appellate Court has also taken note of a judgment of this Court reported in 2008(1) C.T.C. 491 (S. Gopal Vs. D. Balachandran), with regard to Section 20 of the Negotiable Instruments Act, 1881 and found that the respondent/complainant through oral and documentary evidence, has probabilised her case and the revision petitioner/accused has failed to rebut the presumption cast upon her. 13. This Court on an independent application and appreciation of oral and documentary evidence let in by the complainant and by the accused is of the view that there is no error apparent and infirmity in the reasons assigned by the Courts below for convicting the revision petitioner/accused and finds no merits in this revision. However, taking note of the alternative plea made by the learned counsel appearing for the revision petitioner/accused for setting aside the sentence of imprisonment and cost, this Court heard the submission of the learned counsel appearing for the respondent/ complainant also. 14. In the result, this criminal revision is dismissed confirming the conviction imposed under Section 138 of the Negotiable Instruments Act, against the revision petitioner/accused. However, the sentence of imprisonment for one year awarded by the trial Court as confirmed by the lower appellate Court as well as the payment of cost of Rs.10,000/- are set aside. The compensation awarded by the trial Court, as confirmed by the lower appellate Court, is maintained. However, the sentence of imprisonment for one year awarded by the trial Court as confirmed by the lower appellate Court as well as the payment of cost of Rs.10,000/- are set aside. The compensation awarded by the trial Court, as confirmed by the lower appellate Court, is maintained. The revision petitioner/accused is granted six weeks time from the date of receipt of copy of this order to pay compensation, failing which the revision petitioner/ accused shall undergo default sentence of simple imprisonment for a period of three months. Consequently, connected miscellaneous petitions are also dismissed.