Madras High Court
T.M.Shanmugam vs S.Gunasekaran on 2 July, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 02.07.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.653 of 2006 T.M.Shanmugam .. Petitioner Vs. S.Gunasekaran .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to set-aside the conviction imposed in the judgment dated 30.11.2005 made in C.A.No.186 of 2002, on the file of the Additional District & Sessions Court / Fast track Court, Namakkal, confirming the conviction imposed in the judgment dated 05.04.2002 made in C.C.No.8 of 1999, on the file of the learned Judicial Magistrate, Tiruchengode. For Petitioner : Mr.N.Manokaran For Respondent : Mr.P.Mani - - - ORDER
The revision petitioner / appellant / accused has preferred the present revision against the judgment passed in C.A.No.186 of 2002, on the file of the Additional District & Sessions Court / Fast track Court, Namakkal, confirming the conviction and sentence passed in C.C.No.8 of 1999, on the file of the learned Judicial Magistrate, Tiruchengode.
2. The short facts of the case are as follows:-
The complainant is running a lorry firm in the name and style of "Deepam Transport" and the accused is running a firm in the name and style of "TMS Transport". The accused, in order to improve his business, had borrowed a sum of Rs.1,00,000/- from the complainant on 21.08.1998 and in order to discharge the said loan had issued a cheque dated 02.09.1998, drawn on State Bank of India, Tiruchengode Branch. When the complainant presented the said cheque for encashment with his bankers, viz., Karur Vysya Bank on 03.09.1998, it was returned unpaid due to insufficiency of funds in the account of the accused. On the request made by the accused, the cheque was re-presented on 21.10.1998 but it was returned again with an endorsement of 'insufficient funds'. The complainant sent a lawyer's notice to the accused on 29.10.1998 and the accused in spite of receiving the notice, had neither sent a reply nor paid the cheque amount. Hence, the complainant had filed the complaint against the accused for an offence under Section 138 of Negotiable Instruments Act.
3. On being questioned, the accused pleaded not guilty and hence, trial was conducted. On the complainant's side, three witnesses were examined and seven documents were marked as Exs.P1 to P7, viz., Ex.P1-cheque dated 02.09.1998, Ex.P2-return memo issued by State Bank of India, dated 03.09.1998, Ex.P3-return memo issued by State Bank of India, dated 21.10.1998, Ex.P4-notice dated 29.10.1998, Ex.P5-acknowledgment card, Ex.P6-debit advice and Ex.P7-copy of bank account statement of accused. On the side of the accused, no witness, no documents.
4. P.W.1, the complainant had adduced evidence which is corroborative of the statements contained in the complaint and in support of his evidence, he had marked Exs.P1 to P7. P.W.2, Vasudevan, the Manager of Karur Vysya Bank had adduced evidence that the complainant had a savings bank account in their firm and that when the cheque marked as Ex.P1 was presented at their bank for collection, it was returned unpaid due to insufficient funds in the account of accused. P.W.3, Mohan, the Assistant Manager of State Bank of India, Thiruchengode Branch had adduced evidence that when the cheque (Ex.P1) issued by the accused was presented at their bank for collection on 21.10.1998, it was returned unpaid due to insufficiency of funds, as the balance in the account of the accused was only Rs.874/- and in support of his evidence, he had marked Ex.P7, copy of bank account statement of accused.
5. The learned Judicial Magistrate, on scrutiny of evidence of P.W.1 to P.W.3 and on observing that the accused had not denied his signature in the cheque issued (Ex.P1), held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of six months and also imposed a fine of Rs.5,000/- and in default to undergo further period of simple imprisonment for three months. The complainant was permitted to receive the fine of Rs.5,000/- as compensation. Aggrieved by the conviction and sentence imposed by the trial Court, the accused has filed an appeal C.A.No.186 of 2002, before the Additional District & Sessions Court / Fast track Court, Namakkal. The learned appellate Court Judge, on scrutiny of order of trial Court and on scrutiny of oral and documentary evidence, dismissed the appeal and confirmed the conviction and sentence imposed by the trial Court.
6. Aggrieved by the dismissal of his appeal, the appellant has preferred the present revision.
7. The learned counsel for the revision petitioner has contended in his revision that the Courts below failed to note that the respondent herein is a man of no means and there is no material to show that the respondent herein was in a position to pay a huge amount of Rs.1,00,000/-. It was also contended that the Courts below failed to see that the non-denial of the signature found in the cheque would not attract the penal provision under Section 138 of Negotiable Instruments Act. The presumption under Section 20 of Negotiable Instruments Act will apply only to the stamped instruments and it cannot be made applicable to the cheque transaction. It was contended that the Courts below failed to note that the respondent herein had failed to comply with Section 138(b) of Negotiable Instruments Act as there is no material available on record to show that the notice was duly served on the petitioner, while so, there is no cause of action to sustain the complaint.
8. The learned counsel for the revision petitioner has further submitted that the petitioner had paid a sum of Rs.1,00,000/- to the complainant through a banker's cheque drawn on State Bank of India, dated 14.06.2012 for settlement of the cheque amount. The learned counsel further submitted that as the petitioner belongs to the weaker section of the society and as he has financial problems at present, he is unable to pay any more amount. Hence, it was prayed to set-aside the judgment of the appellate Court.
9. The learned counsel for the complainant has submitted that the loan was advanced to the accused in the year 1998 and as the case has been proved before both the Courts below, the complainant is entitled to get double the cheque amount.
10. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on observing that the petitioner had already paid a sum of Rs.1,00,000/- to the complainant, which is the cheque amount, through a bankers cheque drawn on State Bank of India on 14.06.2012, this Court is inclined to set-aside the sentence of simple imprisonment imposed on the accused and sets him at liberty.
11. In the result, the above revision is disposed of. Consequently, the conviction and sentence passed in C.A.No.186 of 2002, on the file of the Additional District & Sessions Court / Fast track Court, Namakkal, dated 30.11.2005 confirming the conviction and sentence passed in C.C.No.8 of 1999, on the file of the learned Judicial Magistrate, Tiruchengode, dated 05.04.2002 is set-aside. Accordingly ordered.
02.07.2012
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Index : Yes.
Internet : Yes.
To
1. The Additional District & Sessions Court / Fast track Court,
Namakkal.
2. The Judicial Magistrate, Tiruchengode.
C.S.KARNAN, J
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Crl.R.C.No.653 of 2006
02.07.2012