Madras High Court
Pandian vs V. Sowrirajan on 16 September, 1998
Equivalent citations: 1999CRILJ1364
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. Pandian is the petitioner in Crl. R. C. No. 104 Of 1997 challenging the conviction and sentence for the offence under Section 138 of Negotiable Instruments Act to undergo R.I. for one year and to pay a fine of Rs. 5,000/-, in default to undergo simple imprisonment for 3 months, imposed upon him in C.C. No. 644/93 on the file of the Judicial Magistrate, Thiruvarur, confirmed in C.A. No. 54/96 on the file of the District and Principal Sessions Judge, Nagapattinam.
2. V. Sowrirajan is the petitioner in Crl. R. C. No. 438 of 1997 challenging the inadequate sentence imposed upon the respondent Pandian for the offence under Section 138 of the Negotiable Instruments Act to undergo one year R.I. and to pay a fine of Rs. 5,000/- in C.C. No,644/93 on the file of the Judicial Magistrate, Thiruvarur.
3. Since the parties are same and these revisions are arising out of a single case, both these revisions are being disposed of by a common order.
4. The case of the prosecution is this :-
(a) Pandian, the petitioner in Crl. R. C. No. 104/97, issued two cheques, Ex. P-1 and Ex. P-2, drawn on Indian Bank, Thiruvarur dated 15-2-93 and 17-2-93 for a total sum of Rs. 7,65,000/-, in favour of Sowrirajan, the petitioner in Crl. R. C. No. 438/97, towards discharge of the debt incurred by said Pandian on 15-10-92.
(b) These two cheques were presented on 17-2-93. They were dishonoured by the bank with the endorsement "insufficiency of funds" on 18-2- -93.
(c) on 4-3-93, the complainant, Sowrirajan, sent a statutory notice demanding the cheque amount. The said notice is Ex. P-4. On receipt of the notice, the accused, Pandian, sent a reply to the complainant on 15-3-93.
(d) Since there was no payment, on 16-4-93, the complainant filed a private complaint against the accused Pandian before the Chief Judicial Magistrate, Kumbakonam. After taking sworn statement, it was made over to the learned Judicial Magistrate, Thiruvarur, who was within the district jurisdiction.
5. During the course of trial, on the side of the prosecution, P.Ws. 1 to 5 were examined and Ex. P-1 to Ex. P-8 were marked. On the side of the defence, none was examined, but Ex. D-1 and Ex. D-2 were marked.
6. The trial Court, after consideration of these materials, found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him to undergo R.I. for one year and to pay a fine of Rs. 5,000/-and out of the said fine amount of Rs. 5,000/- Rs. 4,900/- was directed to be paid as compensation to the complainant. This was confirmed by the lower appellate Court after hearing the parties. Hence, the revision by accused Pandian in Crl. R. C. No. 104/97. Since the sentence is inadequate, the complainant filed the revision for enhancement of the sentence in Crl. R. C. No. 438/97.
7. Mr. B. K. Singh, the learned counsel appearing for the petitioner in Crl. R. C. No. 104/97, while attacking the conviction, would submit the following in order to show that the impugned judgments are liable to be set aside and the accused is entitled to be acquitted.
(a) Though the cause of action arose at Thiruvarur, the complaint was filed before the Chief Judicial Magistrate, Kumbakonam, who-has no jurisdiction. Therefore, the entire proceedings are vitiated.
(b) The statutory notice was sent on 4-3-93 and the same was received on 6-3-93. The seal found in the complaint shows that it was filed on 19-5-93. Therefore, the complaint was barred by limitation.
(c) The complaint is vague. The averment in the complaint do not show the ingredients for the offence under Section 138 of the Negotiable Instruments Act.
(d) There is no acceptable proof that there is valid service of statutory notice on the accused.
(e)There is no material to show that the cheques were issued by the accused towards the discharge of any liability.
(f) The complaints filed in the police station, Ex. D-1 and Ex. D-2, would reveal that these cheques would not have been issued in favour of the complainant on 15-2-93 and 17-2-93. Moreover, the case of the accused is that the signatures found in these cheques were forged ones.
(g) Both the Courts below have not considered the scope of the presumption, as contained in Section 118(g) of the Negotiable Instruments Act and the burden of proof as envisaged in Section 101 of the Evidence Act.
8. In reply to these contentions, Mr. K. Srinivasan, the counsel for the respondent in Crl. R. C. No. 104/97, pointed out that all these points have been dealt with in detail by both the trial Court and the lower appellate Court.
9. I heard the counsel for the parties and perused the records.
10. According to P.W. 1, the accused was indebted to one Kumar (P.W. 2) a sum of Rs. 3,25,000/- and to one Sambasivam (P.W. 3) a sum of Rs. 2,20,000/-. As requested by the accused, the complainant, a close friend, discharged those debts on behalf of the accused pursuant to a panchayat held on 15-10-92. Besides this, the complainant gave a sum of Rs. 2,00,000/- to the accused as loan which carried an interest of Rs. 20,000/-. Towards the discharge of the said liability, the complainant received two post-dated cheques for a total value of Rs. 7,65,000/- with the dates 15-2-93 and 17-2-93. When the cheques were presented, they were dishonoured.
11. P.W. 2 Kumar and P.W. 3 Sambasivam stated that the accused was liable to pay the amount of Rs. 3,25,000/- and Rs. 2,20,000/- respectively to them and as a result of a panchayat, the said amount was discharged by the complain- ant by making payment to them for the sake of the accused. P.W. 4 would also state about the panchayat and the discharge of the loans by the complainant for the accused.
12. Therefore, it cannot be said that there is no proof regarding the liability to be discharged by! the accused. In fact, the evidence of P.Ws. 2 and 3, who have no axe to grind as against the accused, would squarely show that the accused was indebted to them and in order to discharge the said loans, originally he issued cheques in their favour which were dishonoured and the said dishonoured cheques, Ext. P-6 and Ex. P-7, were marked through P.W. 2. Regarding this, the Bank Manager also, on the basis of the bank account, would state that the cheques were issued earlier by the accused in favour of P.W. 2 and P.W. 3.
13. In such circumstances, it could be very well concluded that the evidence of P.Ws. 2 and 3 would corroborate the evidence of P.W. 1, who stated that towards the discharge of the said liability, for having settled the amounts due to P.Ws. 2 and 3 for the sake of the accused, P.W. 1 received those two cheques dated 15-2-92 and 17-2-92, Ex. P-1 and Ex. P-2. from the accused.
14. Under Section 118(g) of the Negotiable Instruments Act, it shall be presumed that unless the contrary is proved the holder of the cheque, namely, the complainant herein received the cheque of the nature referred to in Section 138 of the Act for the discharge of the debt. It is true that; this presumption is rebuttable. But in the instant; case, there is no need to invoke Section 139 of the Negotiable Instruments Act, as the materials produced before this Court would make it clear that the accused was liable to pay the cheque amount to the complainant. Therefore, the decisions cited in A.S. Duraisami Chettiar Sons v. S. Rathnaswami Gounder; AIR 1949 Bom 257 Tarmahmed v. Tyeb Ebrahim; 1998 Cri LJ 759 Narender Anand v. Maruthi Udyog Ltd.; would not be of any use in favour of the petitioner/accused.
15. Regarding the jurisdiction, the learned counsel referred to the decisions in Narang Industries Ltd. etc. v. Ashok Leyland Finance Ltd. (1997) 2 LW (Crl) 699 and Anjillath Mohammed Kunhi v. K.K. Abdul Kajeed 1996 Cri LJ 2395 (Kerala High Court) and contended that the Chief Judicial Magistrate, Kumbakonam, has no jurisdiction to take the case on file.
16. This submission does not have any substance, since, as pointed by the counsel for the complainant, the Chief Judicial Magistrate, Kumbakonam has got the overall jurisdiction of the entire district of Thanjavur. Moreover, the learned Chief Judicial Magistrate received the complaint on 16-4-93and made over to the learned Judicial Magistrate Thiruvarur, who has got the territorial jurisdiction. The records would reveal that actually, the complaint was presented by the complainant on 16-4-93, that is, within the period of limitation and that thereafter, sworn statement was taken. As such, the point regarding the period of limitation also would not succeed.
17. The learned counsel for the petitioner would also cite, 1998 Cri LJ 580 B. Ramesh v. State of Gujarat (Gujarat High Court), in order to show that the complaint would not be considered to be valid, if the averments in the complaint are vague. This would not apply to the case on hand, since in the instant case, the entire trial is over and as such, this Court is not only concerned with the complaint, but also with the materials produced in the course of trial.
18. Placing reliance on 1997 Cri LJ 479 V.S. Geetha v. A. Aiyarkunju (Kerala High Court), the learned counsel for the petitioner would submit that the Court ought to have sent the records for the opinion of the expert, since the defence of the accused was that the cheques were forged ones. This submission, in my view, does not merit acceptance, in view of the fact that the trial Court itself has compared the signatures found in the cheques with the admitted signature of the accused and found that they were tallied. This is permissible under Section 73 of the Evidence Act.
19. As a matter of fact, the accused had never taken any step to file an application before the Court to seek for the opinion of the expert. On the side of the defence, though Ex. D-1 and Ex-D-2 were marked, namely, police complaints, no persons were examined.
20. Moreover, the records would reveal that the case was adjourned on the request of the accused to enable him to examine some witnesses on his behalf. On 28-7-95, the accused was questioned under Section 313, Cr.P.C. On that date, he requested for adjournment to produce his witnesses. Therefore, it was adjourned to 14-8-95. On the said date, no witness was produced. Thereafter, the case was periodically adjourned to the following dates, namely, 15-9-95, 10-10-95, 25-10-95, 31-10-95, 7-11 -95, 15-12-95, 30-1 -96, 8-3-96, 15-3-96, 19-4-96, 13-5-96, 27-6-96, 22-7-96,21 -8-96,12-9-96,25-9-96,7-10-96 and 9-10-96. So, this shows that the accused did not have any interest in showing that he Was not the author; of the cheques. These adjournments would only go to show that he was interested in dragging on the proceedings.
21. Therefore, none of the grounds urged by the counsel for the petitioner would, in my view, help the defence. On the other hand, the materials as well as the reasonings given by both the Courts below would clearly show that the accused had committed the offence under Section 138 of the Negotiable Instruments Act. Hence, the Revision in Cri. R.C. No. 104 of 1997 has to be dismissed;
22. In Cri. R. C. No. 438 of 1997, the counsel for the complainant/petitioner, would contend that the punishment for the offence under Section 138 of the Negotiable Instruments Act is for a term which may extend to one year or with a fine which may extend to twice the amount of the cheque or with both. But even then, the accused was convicted for one year and to pay a fine of Rs. 5,000/-. According to the counsel for the petitioner/complainant, the appropriate sentence would be one year R.I, with a fine which may extend to twice the cheque amount or at least the . cheque amount.
23. Though the Section would provide for punishing the accused for one year imprisonment i and fine for twice the amount of the cheque, the sentence would be depending upon the facts and circumstances of each case.
24. In the instant case, the accused was convicted and sentenced to the maximum punishment of one year. The reading of the provisions i would show that either he could be sentenced to imprisonment or sentenced to pay a fine. When the trial Court thought it fit to impose the fine alone, then it could be concluded that the fine amount of Rs. 5,000/- is not sufficient. Merely because the Court is provided with the powers to impose the fine which may extend to twice the cheque amount, it need not invariably impose such an amount of fine.
25. Moreover, the trial Court convicted and sentenced the accused on 14-11-96. Immediately, the accused filed an appeal before the lower appellate Court. The lower appellate Court con firmed the conviction and sentence on 18-2-97. As against the said conviction and sentence, the petitioner/accused preferred revision in Crl. R. C. No. 104/97 on 19-2-97. Though the conviction and sentence were imposed by the trial Court on 14-11-96, the complainant did not prefer any revision against the inadequate sentence before the higher forum immediately.
26. As a matter of fact, the revision Crl. R.C. No. 438 of 1997 filed by the complainant on 10-2-97 against the sentence was admitted only on 16-7-97, that is, long subsequent to the admission of Crl. R.C. No. 104/97 before this Court. This shows that the complainant party was not diligent in challenging the sentence imposed upon by the trial Court. Therefore, this revision does not have any merit and as such, the same is liable to be dismissed.
27. In the result, both the Revisions are dismissed.