Madras High Court
Captain V.R.C.Pandiyan vs R.Manoharan on 27 March, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27.03.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.1170 of 2010 Captain V.R.C.Pandiyan .. Petitioner Vs. R.Manoharan .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to call for the records pertaining to the order dated 13.10.2010 in C.A.No.54 of 2010 on the file of the learned Additional District & Sessions Judge, Fast Track Court-I, Erode confirming the conviction dated 15.04.2010 in C.C.No.15 of 2009 on the file of the learned Judicial Magistrate-III, Erode and set-aside the same. For Petitioner : Mr.Devaraj Mahesh For Respondent : Mr.V.Balamurugan - - - ORDER
The revision petitioner has filed the present revision against the judgment and conviction, dated 13.10.2010 made in C.A.No.54 of 2010 on the file of the learned Additional District & Sessions Judge, Fast Track Court-I, Erode, confirming the judgment and conviction dated 15.04.2010 in C.C.No.15 of 2009 on the file of the learned Judicial Magistrate-III, Erode.
2. The complainant's case is as follows:-
On 28.02.2007, the accused borrowed a sum of Rs.1,50,000/- from the complainant for his urgent expenses and to discharge the same, he was issued a post dated cheque for Rs.1,50,000/- vide cheque No.643054, dated 30.03.2007, in favour of the complainant, drawn on Canara Bank, Madakkurichi. On request of the accused, the complainant presented the above said cheque for collection on 14.06.2007 through Canara Bank, Bangalawpudur. But, the same was returned as unpaid due to insufficiency of funds in the accused's bank account with a bank memo stating "account closed" and the same was received by the complainant on 26.06.2007. The complainant issued a legal notice on 28.06.2007 calling upon the accused to pay the said amount of Rs.1,50,000/- within 15 days from the date of receipt of notice. The postal department has intimated to the accused on 04.07.2007, but the accused purposely evaded to receive the notice and returned it, as not claimed on 13.09.2007. Hence, the complainant had lodged a complaint in the Court of Judicial Magistrate-III, Erode in C.C.NO.15 of 2009, under Section 138 r/w 142 of the Negotiable Instruments Act.
3. The accused had pleaded not guilty before the Judicial Magistrate and hence enquiry was conducted. On the side of the complainant, the power of attorney holder of the complainant-Anant Kumar was examined as P.W.1 and he had marked six documents as Exs.P-1 to P6 viz., Ex.P1-cheque dated 30.03.2007, Ex.P2-return memo dated 26.06.2007, Ex.P3-lawyer's notice dated 28.06.2007, Ex.P4-postal receipt dated 28.06.2007, Ex.P5-unclaimed acknowledgment card dated 13.07.2007 and Ex.P6-power of attorney deed. On the side of the accused, the officer of the Madakkurici Branch of Canara Bank was examined as R.W.1 and two documents were marked viz., Ex.R1-letter sent by the complainant on 26.02.2007 and Ex.R2-statement of accounts.
4. P.W.1 in his evidence deposed that he is the power of attorney holder of the complainant; that on 28.02.2007, the accused had received a loan of a sum of Rs.1,50,000/- from the complainant for his urgent expenses; that to discharge the said loan, he had issued a cheque, dated 30.03.2007 (marked as Ex.P1) for a sum of Rs.1,50,000/- in favour of the complainant; that on the request of the accused, the said cheque was deposited with the bank on 14.06.2007; that the said cheque was returned with a Memo (Ex.P2) stating insufficient funds and that account was closed; that on return of cheque, the complainant had issued a legal notice to the accused through his lawyer on 28.06.2007 (Ex.P3); that the accused was intimated by the postal department about the notice on 04.07.2007, but the accused had evaded receipt of the said notice; that the accused had not repaid the money or sent any reply notice even after 15 days from the date of the notice; that the complainant had then lodged a complaint under Section 138 r/w 142 of the Negotiable Instruments Act with the Judicial Magistrate.
5. On the side of the accused, the officer of Canara Bank, Madakkurichi Branch, one Balraj was examined as R.W.1. R.W.1., in his evidence had deposed that the accused had a Savings Bank account in their bank; that on 26.02.2007, the accused had intimated to him to close his account through a letter (Ex.R1) and based on this, the account of the accused was closed. He further deposed that the accused had stated in the said letter that three of his cheques were missing. But the serial numbers of the missing cheques were not given. On cross examination, he had produced the statement of accounts of the accused, pertaining to the period from 04.09.2006 to 20.03.2010 and marked as Ex.R-2.
6. On the side of the accused, it was argued that as the account of the accused was closed on 20.02.2007 and that some of the cheques of the accused were stolen and that one such cheque has been used against him in the present case. It was also argued that as the legal notice said to have been issued by the complainant had not been received by the accused and as such the case filed under Section 138 of the Negotiable Instruments Act is not maintainable against the accused. But, the learned Judicial Magistrate, on considering that the notice had been returned to the Court with the endorsement of "intimation delivered, unclaimed" were of the opinion that if the accused had really not resided in the said address, such a response would not have been given by the postal department. Further, the learned Magistrate was of the opinion that through the three cheques that had been reported as missing as per Ex.R1, serial numbers of the cheques had not been furnished and the accused had not given any complaint to the concerned authorities. Further, the learned Magistrate, after scrutiny of citation produced by complainant, in P.Vadivelu Vs. K.Thangaraj reported in 2009 (1) T.N.L.R.1 (Mad) , wherein, "the respondent had taken defence that a cheque book was lost and cheque presented by the complainant was a forged one - held, no F.R. preferred by accused for loss of cheque; hence defence of accused not sustainable - further endorsement of Bank clearly show that cheque was dishonoured for insufficient fund - Hence respondent accused is liable."
held that the facts of the present case is similar to the case cited and hence held the accused guilty of offence under Section 138 of the Negotiable Instruments Act and sentenced him 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 further undergo simple imprisonment for a period of three months.
7. Aggrieved by the said order passed by the learned Judicial Magistrate-III, Erode, the accused had preferred a Criminal Appeal in C.A.No.54 of 2010 before the learned District and Sessions Judge, Fast Track Court-I, Erode, stating that the lower Court failed to consider that there are no transactions between the appellant and respondent; that the respondent has failed to prove the appellant's permanent address, and that the lower Court failed to consider that Ex.P5 is a forged one.
8. The learned appellate judge, after scrutiny of impugned order of the trial Court and after hearing the arguments advanced by the learned counsels on either side and the citations produced on both sides dismissed the appeal and confirmed the conviction and sentence imposed by the trial Court.
9. Aggrieved by the said dismissal of the appeal, the accused has preferred the above revision.
10. The learned counsel for the revision petitioner has argued that even as per the revision of the complainant, the impugned cheque was presented for collection on 14.06.2007 and the return memo was received by complainant on 26.06.2007 and the statutory notice, dated 28.06.2007 sent by the complainant was intimated to the accused on 04.07.2007 and the returned cover was received by the complainant on 13.07.2007 and the complaint was filed on 05.01.2008. It was pointed out that when the limitation for filling of the complaint is to be computed, it should be computed taking 04.07.2007 and taking the same into account, the period of 15 days ends on 20.07.2007 and the complaint ought to have been filed on or before 19.08.2007. Since the complaint was preferred on 05.01.2009, the same has been preferred with a delay of 139 days. It was contended that the trial Court has condoned the delay of 127 days and the balance days delay has not been condoned. It was also argued that the trial Court erred in failing to consider Ex.R1, which is the letter given by the revision petitioner to his bankers to close his account, wherein he has stated that three cheques were lost and R.W.1., the Manager of the accused's bank confirmed the same. As per the revision of the complainant, the accused issued the cheque on 28.02.2007 and it is an admitted fact that Ex.R1 was issued on 26.02.2007. The learned counsel further argued that the trial Court as well as the appellate Court failed to appreciate the fact that the statutory notice was not served on the petitioner/accused, and that it is pertinent to note that Ex.P5-being the returned cover containing the statutory legal notice was returned to the complainant as "not claimed". The learned counsel further pointed out that on the returned cover, there is an endorsement, above the "To address" and the same has been struck out and even then visible to the naked eye, to the effect that "No such addressee, Return to sender" and below such endorsement the signature of the person, who made the endorsement can be found.
11. It was also argued that when the petitioner has questioned the existence of debt as well as the transaction, the burden of proof rests on the complainant to prove the existence of the lending transaction and that the impugned cheque in question was issued in discharge of the debt or a liability. Hence, it is the duty of the respondent to provide for some statement of accounts or bank statement or promissory note or some other kind of secondary evidence so as to strengthen and solidify the presumption in his favour. It was contended that in the instant case, the respondent/complainant has failed to do so. The learned counsel has further pointed out that the petitioner herein had also taken a specific defence that the signature found in the cheque was not his signature and filed a petition praying that the impugned cheque may be sent for forensic examination and in the said issue, the petitioner did not pay the appropriate fee for such forensic examination and therefore, the said petition came to be closed. As such, it was argued that both the Courts below had erred in failing to compare the signatures as per provisions of Section 73 of Indian Evidence Act.
12. The learned counsel for the respondent herein argued that the complainant was examined as P.W.1 and he had marked six documents in order to establish his case. The Bank Manager was examined and he narrated the particulars and facts regarding dishonour of cheque. The accused had alleged that he had lost three cheques only to evade payment, and as such it is not a genuine statement. The further allegation of the accused is that one of the lost cheques is the impugned cheque in the present case and this is absolutely not true. The trial Court, after considering the evidence of both sides and on perusing the documentary evidence, had convicted the accused and imposed a sentence and the same was confirmed by the appellate Court, after verifying the trial Court's judgment and after hearing the arguments advanced by both the parties. The quantum of punishment and fine imposed on the accused are also reasonable. Further, the Courts below had not committed any irregularity or illegality in their respective judgments.
13. On verifying the facts and circumstances of the case and on arguments advanced by the learned counsels on either side, on scrutiny of the impugned judgment of the appellate Court, this Court does not find any discrepancy in the said order. This Court further views that normally a person would not initiate a criminal complaint, on the strength of possession of a stolen cheque to punish the accused through Court of law. But, in this case, the accused had stated that three cheques were missing, out of which, one cheque was subject matter of this case. If this had been genuine, then he should have initiated separate Criminal Proceedings against the complainant, instead of this, the accused had raised the issue of 'missing cheques' only in the complainant's case, which is highly irregular. Therefore, this Court confirms the impugned judgment and consequently, dismissed the above revision.
14. This Court directs the learned Judicial Magistrate-III, Erode to issue non-bailable warrant of arrest on the accused and secure him into judicial custody forthwith. This Court gives an option that if the accused pays the cheque amount of a sum of Rs.1,50,000/- as compensation before being remanded into judicial custody, then this Court order would not be operated. This observation has been made as per and upon and the discretionary powers vested with this Court. On deposit of the compensation amount by the accused, the complainant is at liberty to withdraw the same, at once, after filing a Memo before the trial Court. Accordingly ordered.
15. In the result, the above Criminal Revision is disposed of with the above observation. Consequently, the judgment and sentence passed in C.A.No.54 of 2010, on the file of the learned Additional District & Sessions Judge, Fast Track Court-I, Erode, dated 13.10.2010, confirming the conviction passed in C.C.No.15 of 2009, on the file of the learned Judicial Magistrate-III, Erode, dated 15.04.2010 is confirmed.
r n s To
1. The Judicial Magistrate-III, Erode.
2. The Additional District & Sessions Judge, Fast Track Court I Erode