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2022 DIGILAW 2128 (MAD)

M. Virupaksha v. P. K. Dasaprakash

2022-07-15

D.BHARATHA CHAKRAVARTHY

body2022
JUDGMENT : (Prayer: Memorandum of Grounds of Criminal Revision filed under Sections 397 r/w 401 of the Code of Criminal Procedure, 1973, praying to set aside the judgement dated 10.08.2019 passed by the learned III Additional District and Sessions Judge, Erode at Gobichettipalayam, in C.A.No.392 of 2018 confirming the conviction and sentence imposed by the learned Judicial Magistrate-I, Gobichettipalayam, by judgement dated 29.11.2018 made S.T.C.No.2628 of 2010.) 1. This Criminal Revision Case is filed against the judgement dated 29.11.2018 passed by the learned Judicial Magistrate-I, Gobichettipalayam, Erode District in STC No.26288 of 2010 and the judgement of the learned III Additional District and Sessions Judge, Erode at Gobichettipalayam dated 10.08.2019 in C.A.No.392 of 2019 in and by which the petitioner was convicted for the offence under Section 138 of The Negotiable Instruments Act and was sentenced to undergo simple imprisonment for a period of six months and to pay a sum of Rs.36,00,000/- (Rupees Thirty Six Lakhs only) as compensation to the respondent/complainant. 2. When the revision was pending both parties compromised the matter and filed a joint compromise memo dated 10.10.2019 along with Crl.M.P.No.14897 of 2019 to compound the offence. The joint memo of compromise entered into between the parties inter alia mentions as if the entire cheque amount is being paid. But, however, even before the application could come up for hearing, it was mentioned by both sides that the parties had actually agreed only for a sum of Rs.25,00,000/- as full quit and out of the said sum a sum of Rs.25,00,000/- , a sum of Rs.13,00,000/- had already been paid by the petitioner/accused to the respondent/complainant. In view of the above, the joint compromise memo was not acted upon and the miscellaneous petition was not ordered and the same was kept pending. However, based on the joint compromise memo, the petitioner has been praying for further time to settle the balance amount and therefore, vide repeated orders, this court had been extending the time for payment of balance sum of Rs.12,00,000/- Finally, apart from the joint compromise memo, an affidavit dated 25.01.2022 was filed by the petitioner/accused undertaking to pay the balance agreed amount of RS.12,00,000/- together with interest of Rs.1,00,000/- in all totalling to Rs.13,00,000/- on or before 28.02.2022 towards fully and final settlement. The said affidavit was taken on file and has been recorded by this court. 3. The said affidavit was taken on file and has been recorded by this court. 3. However, today, when the matter came up for hearing today before this court, the learned counsel for the petitioner submitted that the petitioner filed the affidavit genuinely thinking that he will be able to muster the amount within the time. But, however, he is unable to arrange the balance amount and to pay to the respondent/complaint even though he genuinely undertook to pay the balance amount. 4. On enquiry by this court, whether the petitioner would be able to pay the said sum on the specified extension of time by this court, the learned counsel for the petitioner/accused answered in the negative that the petitioner is unable to give proper time frame for payment of the balance amount of Rs.13,00,000/- I have considered the affidavit filed by the petitioner and the joint memo of compromise entered into between the parties. 5. Even though it could be contended that the joint memo of compromise was without prejudice to the contentions in the main case, when pursuant to the filing of the joint memo of compromise, repeated prayers have been made to adjourn the revision case and over and above the same, an affidavit of undertaking, being sworn affidavit as evidence, before the court has also been filed by the petitioner /accused on 25.01.2022 which was also recorded by this court on 31.01.2022, compromise cannot be said to be without prejudice and the petitioner/accused cannot now argue the matter on merits. Therefore, this court has decided to consider only the issue of sentence. 6. The learned counsel for the petitioner would submit that proper sentence may be passed in terms of the joint memo of compromise. 7. The learned counsel for the respondent/complaint would submit that the primary concern of the respondent/complainant is to receive money at least as per the affidavit of undertaking filed by the petitioner/accused. 8. 6. The learned counsel for the petitioner would submit that proper sentence may be passed in terms of the joint memo of compromise. 7. The learned counsel for the respondent/complaint would submit that the primary concern of the respondent/complainant is to receive money at least as per the affidavit of undertaking filed by the petitioner/accused. 8. In that view of the matter, this Criminal Revision Case is parrly allowed on the following terms:- (i) Conviction of the petitioner for the offence under Section 138 of the Negotiable Instruments Act, by judgement of the learned Judicial Magistrate-I, Gobichettipalayam, dated 29.11.2018 in STC No.2628 of 2010 and as confirmed by the learned III Additional District and Sessions Judge, Erode at Gobichettipalayam, by judgement dated 10.08.2019 in C.A.No.392 of 2018 is confirmed; (ii) Sentence imposed by the trial court is modified as the petitioner shall pay a fine of Rs.13,10,000/- within a period of four months from the date of receipt of a copy of this order and in default of payment of fine imposed above, the petitioner has to undergo simple imprisonment for a period of six months; (iii) In the event, the fine imposed above is paid, of the fine amount deposited, a sum of Rs.13,00,000/-shall be paid out to the respondent/complainant without insisting for any formal application but, after verification of the identity of the petitioner and upon identification by the counsel for the respondent/complaint. (iv) Bail Bond, if any, executed by the petitioner shall stand cancelled. Consequently, connected Miscellaneous Petition stand closed.