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2022 DIGILAW 3202 (MAD)

S. Udhayakumar v. S. Dhandapani

2022-09-08

SUNDER MOHAN

body2022
JUDGMENT : SUNDER MOHAN, J. Prayer: Criminal Revision petition filed under Sections 397 and 401 Criminal Procedure Code, to call for the records in C.A. No. 146 of 2015 on the file of Principal Sessions Judge Salem dated 02.11.2016 confirming the order of conviction passed by the learned Judicial Magistrate No. 4 Salem in STC No. 1679 of 2013 dated 15.10.2015 set aside the same and set the petitioner at liberty. 1. This revision arises against the judgment of the learned Principal Sessions Judge, Salem, passed in C.A. No. 146/2015 on 02.11.2016. 2. The petitioner faced prosecution for the offence under Section 138 of the Negotiable Instruments Act in S.T.C. No. 1679/2013 on the file of the learned Judicial Magistrate No. IV, Salem. The prosecution case is that the petitioner had borrowed a sum of Rs. 4,33,000/- (Rupees Four Lakhs Thirty Three Thousand only) from the Respondent on 03.04.2013 to meet his urgent business needs and agreed to repay the said amount within a month. Towards discharge of the said debt, the petitioner issued a post dated cheque drawn on Federal Bank Ltd. Attayampatty Branch, Salem for a sum of Rs. 4,33,000/- (Rupees Four Lakhs Thirty Three Thousand only). The complainant presented the cheque for collection and upon the same having returned for the reason “Payment stopped by Drawer” issued statutory notice and filed a complaint under Section 138 of the Negotiable Instruments Act. 3. Before the Trial Court, the respondent examined himself and marked 6 exhibits. The petitioner did not examine any witnesses or mark exhibits on his side. 4. The trial Court rendered a finding of conviction and sentenced the petitioner to undergo one year S.I and to pay a compensation of Rs. 4,33,000/- (Rupees Four Lakhs Thirty Three Thousand only) to the complainant in one month and in default to suffer three months S.I. Against the same, the petitioner moved an Appeal in C.A. No. 146/2015, which came to be dismissed by the learned Principal Sessions Judge, Salem. 5. Heard, Mr. M. Devaraj, learned counsel for the petitioner and Mr. K.S. Karthik Raja, learned counsel for the respondent. 6. On perusal of the judgment of the courts below, we find that the respondent had established the foundational facts required for drawing the presumption under section 139 of the NI Act. 5. Heard, Mr. M. Devaraj, learned counsel for the petitioner and Mr. K.S. Karthik Raja, learned counsel for the respondent. 6. On perusal of the judgment of the courts below, we find that the respondent had established the foundational facts required for drawing the presumption under section 139 of the NI Act. The Petitioner has not dislodged the said presumption either by cross examination or by adducing evidence on his side. The defence of the petitioner that the cheque was not issued in discharge of debt or liability to the respondent has not been established by the petitioner. Therefore, this Court finds no reason to interfere with the findings of the Courts below. 7. The learned counsel for the petitioner submitted that during the pendency of the above revision the entire cheque amount was paid to the respondent. The learned counsel also filed a memo to that effect which reads as follows: “......2. The Petitioner was convicted by the trial Court by judgment dated 15.10.2015 and imposed a sentence of one year simple imprisonment and compensation of Rs. 4,33,000/- to be paid in one month with a default sentence of 3 months simple imprisonment. The Appellant had filed the appeal against the same in C.A. No. 146 of 2015 and the appeal was dismissed by the learned Principal Sessions Judge Salem by order dated 02.11.2016. Challenging the same the above revision has been filed. 3. The petitioner states that pending the revision petition, the appellant had negotiated with the respondent for settlement of Rs. 2,00,000/- and had paid a sum of Rs. 1,50,000/- by way of DD dated 07.12.2021 bearing No. 739582 the same was handed over to the counsel in the court on 14.12.2021 which has been recorded in this Hon'ble Court. Further a sum of Rs. 1,50,000/- finally a sum of Rs. 1,33,000/- was paid by way of DD No. 739597 dated 28.12.2021 as such the entire payment has been made.” The learned counsel for the respondent fairly admits that the entire cheque amount was received by the respondent during the pendency of the proceedings. However, he would submit that the Respondent never agreed or negotiated with the petitioner for compounding the offence. 8. The learned counsel for the petitioner submitted that the petitioner was unable to make payment earlier in view of his poor financial condition and prayed for modification of sentence. However, he would submit that the Respondent never agreed or negotiated with the petitioner for compounding the offence. 8. The learned counsel for the petitioner submitted that the petitioner was unable to make payment earlier in view of his poor financial condition and prayed for modification of sentence. In view of the above factual position, this Court is of the view that the sentence imposed on the petitioner can be modified, keeping in mind that the proceedings under Section 138 of NI Act is primarily compensatory in nature than being punitive as held by the Hon'ble Apex Court in several decisions including in K.A. Abbas H.S.A. vs. Sabu Josephand Another, (2010) 6 SCC 230 and Meters and Instruments Private Limited and Another vs. Kanchan Mehta, (2018) 1 SCC 560 . Further the Hon'ble Apex Court in Kumaran vs. State of Kerala and Another, (2017) 7 SCC 471 considered the question as to whether the compensation can be recovered in the manner provided under Section 421 of Cr.P.C. even if the accused has undergone the default sentence for non payment of compensation. The Honourable Apex Court after considering all the relevant provisions and its earlier judgments held as follows: “......... 27. Despite this Section 357(3), Section 431, Section 70 IPC and Section 421 (1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421 (1). This would, however, be without the necessity for recording any special reasons. This is because Section 421 (1) proviso contains the disjunctive “or” following the recommendation of the Law Commission, that the proviso to old Section 386 (1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso of Section 421 (1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 35 (1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357 (3)....” 9. The last part inserted into the proviso of Section 421 (1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 35 (1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357 (3)....” 9. Accordingly, this Court while confirming the finding of conviction recorded by the Courts below reduces the sentence imposed on the petitioner from one year to imprisonment till the rising of Court and direct the petitioner to pay a sum of Rs. 50,000/- (Rupees Fifty Thousand Only) as compensation to the respondent within a period of eight (8) weeks from the date of receipt of copy of this order failing which the petitioner shall suffer 3 Months S.I. 10. The petitioner shall surrender before the learned Magistrate on or before 14.10.2022 to suffer the sentence of imprisonment till rising of the Court, failing which the learned Magistrate shall take steps to secure the presence of the petitioner for serving the above said sentence. It is also made clear that in the event of the petitioner not paying the compensation amount, the respondent shall be at liberty to recover the compensation amount in the manner known to law, even if the petitioner has suffered default sentence for non-payment of compensation amount. 11. With the above modifications, Criminal Revision is dismissed.