Madras High Court
T.Kalavathy .. Revision vs Veera Exports on 31 March, 2015
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31.03.2015 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.NO.891 of 2004 T.Kalavathy .. Revision Petitioner Vs. Veera Exports represented by Rajendran 10th Cross Sengunthapuram Karur ..Respondent/Complainant Prayer: Criminal Revision Petition filed under Section 397 r/w 401 Cr.P.C., against the judgment dated 08.03.2004 in C.A.No.34 of 2003 on the file of the District and Sessions Judge, Karur confirming the conviction and sentence in C.C.No.1071 of 1996 on the file of the Judicial Magistrate, No.I, Karur. !For Petitioner :: Mr.V.K.Sathyamurthy for Mr.C.Rajan ^For Respondent :: Mr.R.Karthikeyan :ORDER
The revision petitioner is the accused in C.C.No.1071 of 1996 on the file of the Court of Judicial Magistrate, No.I, Karur. The respondent herein filed the said private complaint seeking prosecution of the revision petitioner/accused under Section 138 read with 142 of the Negotiable Instruments Act. The trial Court, on consideration of oral and documentary evidences, has convicted the revision petitioner vide judgment dated 24.06.2000 and sentenced her to undergo rigorous imprisonment for 9 months, compensation of Rs.4 lakhs within three months from the date of the order with default sentence of three months simple imprisonment. The revision petitioner, aggrieved by the conviction and sentence imposed by the trial Court, preferred an appeal in C.A.No.34 of 2003 on the file of the Court of Sessions Judge, Karur. The lower appellate Court vide impugned judgment dated 08.03.2004 has confirmed the sentence and conviction awarded by the trial Court. Challenging the legality of the same, the accused has filed this revision petition.
2. The case of the respondent/complainant that it is a registered partnership Firm and it is carrying on business in Handlooms. The revision petitioner/accused is the Proprietor of Southern Mills and she had business dealings from the year 1994 with the respondent Firm and as per the books of accounts maintained by the respondent/complainant, a sum of Rs.12,33,114.55/- is due and payable. Towards discharge of part of the said dues, the revision petitioner/accused had issued cheques dated 09.04.1995, 13.04.1995, 17.04.1995, 18.04.1995, 21.04.1995, 24.04.1995, 27.04.1995 and 30.04.1995 for a sum of Rs.50,000/- each. The respondent/private complainant had presented all eight cheques for collection on 15.05.1995 with its bank, namely, Central Bank of India, Karur Branch and all the cheques were returned and when the respondent/complainant asked about the non-honouring of cheques, she told that she is not having enough funds to honour the cheques and sought a time of six months and taking into consideration of the longstanding business relationship, the respondent/private complainant has also granted time.
3. During January 1996, the revision petitioner/accused came to the business place of the respondent/private complainant and told them that she is unable to arrange for the funds and hence revalidate all the cheques by altering the year of the cheques from 1995 to 1996. The respondent Firm also issued a notice on 17.07.1996 to the revision petitioner/accused stating that they are going to present the cheques and asked her to take steps to honour the said cheques. On 18.07.1996, the cheques were presented by the respondent/private complainant and it was returned with an endorsement ?stop payment?. In this regard, the respondent/private complainant has issued a statutory notice on 08.08.1996 and though it was received by the revision petitioner/accused on 13.08.1996, she did not take any steps to honour the cheques, but sent a reply under Ex.P16 contending false allegations. Since the revision petitioner/accused did not honour the cheques, in spite of receipt of statutory notice, the respondent/complainant came forward to file the said private complaint seeking her prosecution for the commission of the offence under Section 138 read with 142 of the Negotiable Instruments Act.
4. The trial Court, on appearance of the revision petitioner/accused, has questioned her as to the commission of offences and she pleaded not guilty. The respondent/complainant in order to sustain its case has examined one of its partners as P.W.1 and also P.Ws.2 and 3 and marked Exs.P1 to P36.
5. The revision petitioner/accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances made out against her, in the evidence rendered by the prosecution, she denied it as false.
6. On behalf of the revision petitioner/accused, five witnesses were examined and Exs.D1 to D6 were marked. The trial Court, on consideration of oral and documentary evidences, has convicted and sentenced the revision petitioner/accused as stated above and on appeal, it was also confirmed and hence, this revision.
7. Mr.V.K.Sathyamurthy, learned counsel for the revision petitioner, made the following submissions:
(i) The sworn statement of one of the partners of the respondent Firm does not contain the relevant particulars and so also the complaint.
(ii) Material alteration has been done in the cheques to extend the period of limitation.
(iii) Originally a case in C.C.No.617 of 1996 was pending on the file of the Judicial Magistrate, No.I, Karur and as per the order passed by this Court, it was transferred to the file of Judicial Magistrate, Trichy and renumbered as C.C.No.539 of 1996 and summons were issued to the revision petitioner/accused for appearance on 12.07.1996 and she also appeared on that date and on that date, she was kidnapped and kept in illegal custody for three days and during that time only, she was forced to alter the year of the cheques from 1995 to 1996 and she was also forced to sign in blank papers and in this regard she has also lodged a complaint. Based on which, Karur Town Police Station has registered a case in Crime No.964 of 1996 and subsequently it was closed as 'Mistake of Fact' and no proper investigation in that case was conducted and the revision petitioner/accused was also not put on notice with regard to the filing of the referred charge sheet and therefore, the closure of the said case would not come to the aid of the revision petitioner/complainant. All the documents relating to the closure of the said case have been filed by the respondent/complainant and it is also substantiated the fact that the concern police station was in active collusion with the respondent/complainant and without there being proper investigation, they have erroneously closed the case.
(iv) Even as per the version of the respondent/complainant, there was earlier presentation of the cheques in question and therefore, the cause of action started to run even from the date of dishonour of the earlier presentation and therefore, the alleged second presentation based on the alteration of the year made in the cheques pursuant to filing of the present complaint on the face of it, is unsustainable in law.
(v) The respondent/complainant without filing any petition to let in additional evidence had straight away marked number of documents and it is a procedural irregularity, which has affected the core of the case projected by the respondent/private complainant.
(vi) In sum and substance, it is the submission of the learned counsel for the revision petitioner/accused that under threat and coercion, the year has been altered in the cheques and it is a material alteration as contemplated under Section 87 of the Negotiable Instruments Act and by practising fraud and deception, the respondent/complainant has filed the above said complaint and the Courts below, without properly appreciating the oral and documentary evidences, has convicted and sentenced the revision petitioner/accused and hence prays for interference.
8. Per contra, Mr.R.Karthikeyan, learned counsel for the respondent/complainant, has invited the attention of this Court to the impugned judgments passed by the Courts below and would submit that the Courts below, on appreciation of oral and documentary evidences in proper perspective, had rightly reached the conclusion to convict and sentence the revision petitioner/accused and this Court in exercise of its revisional jurisdiction may not interfere with the well considered finding rendered by the Courts below and prays for dismissal of this revision petition.
9. This Court has carefully considered the rival submissions and also perused the impugned judgment passed by the Courts below as well as the original records.
10. The respondent/complainant after dishonour of cheques has issued statutory notice under Ex.P15 dated 08.08.1996, for which, on behalf of the revision petitioner/accused, a reply notice was sent through a lawyer under Ex.P16 and in the reply, it has been stated that the revision petitioner/accused has issued post dated cheques for business transactions and there was an earlier notice on 02.02.1996 and immediately receipt of the said notice, a detail reply has been sent on 13.02.1996 stating among other things that the amounts due and payable mentioned in the said notice have also been paid by way of cash and demand draft and in spite of payment, the respondent/complainant did not return the cheques and by using the same, filed the false complaint.
11. It is further stated in the said reply notice that in pursuant to the summons issued by the Court of Judicial Magistrate, No.I, Karur, in C.C.No.617 of 1996, the revision petitioner/accused appeared on 12.07.1996 and after attending the hearing, she was kidnapped and was kept in illegal custody and forced to put signatures in the cheques as well as corrections have also been made in the cheques and using the same, the present complaint came to be lodged.
12. On behalf of the respondent/complainant one of the partner was examined as P.W.1. In the cross examination, he denied the suggestion that when the revision petitioner/accused appeared before the Court of Judicial Magistrate, No.I, Karur, in connection with C.C.No.617 of 1996 on 12.07.1996, she along with her husband were kidnapped and signatures were forcefully obtained in blank papers as well as stamp papers and cheques have also been altered and also admitted in Exs.P3 to P10, the year mentioned therein has been altered and the said fact has not been disclosed in the sworn statement as well as Ex.P15 statutory notice.
13. He would further state that with regard to the kidnapping, a case in Crime No.964 of 1996 was registered by the Karur Town Police Station and he took efforts to summon the document in connection with the said case and denied the suggestion that while referring the case, notice has not been served on the revision petitioner/accused, who was the de-facto complainant. D.W.1 was the Head Clerk of Judicial Magistrate No.I, Trichy and he speaks about the presence of the accused. He has pleaded ignorance about the presence of the accused before Judicial Magistrate,No.I, Karur on 12.07.1996 and no records available to that effect with regard to the criminal case registered against P.W.1 on the basis of the complaint given by revision petitioner.
14. D.W.2 is a Lawyer and he has spoken about the fact of effecting compromise at the instance of one Mr.Saidai Duraisamy, former Member of Legislative Assembly, between the revision petitioner/accused and the respondent/complainant and he denied the suggestion that Ex.D4 has been fabricated.
15. A perusal of Ex.D4 dated 29.09.1995 marked through D.W.2 would disclose that it was sent by D.W.2 to the revision petitioner and the contents of the same reads that the respondent/complainant has received a sum of Rs.1 lakh on 29.09.1995 as part satisfaction and the post dated cheque corresponding to the said amount, would be returned (cheque bearing Nos.495354 dated 25.05.1995 for Rs.50,000/- and 495355 dated 25.05.1995 for Rs.50,000/-).
16. The complainant has also marked Exs.P18 to P32 to show that there was business transactions between them.
17. It is the submission of the learned counsel for the revision petitioner/accused that admittedly a criminal case came to be registered against P.W.1 alleging kidnapping on his part and getting signatures in blank stamp papers as well as other papers and with regard to the alteration of cheques and the said case, after investigation was referred as 'Mistake of fact' and she was not at all put on notice by the jurisdictional Magistrate Court.
18. But the fact remains that subsequently the revision petitioner/accused became aware of the closure of the case and she did not take any steps either to file a protest petition or to lodge a private complaint. Therefore, the closure of the case on the part of the jurisdictional police with regard to the allegation of kidnapping and altering the cheques in question as well as getting signatures in blank papers as well as stamp papers, became final.
19. A perusal of the reply notice, marked as Ex.P16 would also disclose that the revision petitioner/accused has also pleaded discharge and it is her further allegation that in spite of discharge, the respondent/private complainant did not return back the cheques, which have been given as security. But it is also to be pointed out that she did not take any immediate steps to get back the return of cheques in question.
20. It is the specific case of the respondent/complainant that when the cheques were presented on earlier occasion and get dis-honoured and immediately they contacted the revision petitioner/accused, who prayed for six months time to settle the amount and subsequently voluntarily came forward to alter the year of the cheques from 1995 to 1996. Though it is the specific case of the revision petitioner/accused that it amounts to material alteration, as already pointed out in criminal complaint lodged, in this regard, has become final, as the jurisdictional police has closed the case as 'Mistake of Fact' and no further steps have been taken either to reopen the case or to file a private complaint.
21. Ex.D4 marked through D.W.2 would also disclose that there was a settlement of part of the amount and it is also evidenced the fact that there was a business transactions between the revision petitioner/accused and the respondent/private complainant.
22. Though the learned counsel for the revision petitioner/accused made attempts to urge some points, which have not been advanced either before the trial Court or before the lower appellate Court, this Court is unable to accept the same for the reason that the revision petitioner/accused did not take any effective steps to dislodge the presumption cast upon her.
23. The Courts below had recorded the concurrent findings as to the guilt on the part of the revision petitioner/accused for the commission of offence under Section 138 of the Negotiable Instruments Act and this Court, on an independent application of mind to the entire material placed before it, is of the considered view that there is no error apparent or infirmity on the findings rendered by the Courts below.
24. At this juncture, the learned counsel for the revision petitioner/accused made alternately that the revision petitioner being a lady has imposed with a present sentence of nine months simple imprisonment and considering the fact that she has also levied with a compensation of Rs.4 lakhs, sentence of imprisonment may be set aside and on the said submission, the Court heard the submission of the learned counsel for the respondent/private complainant also and this Court, after considering the said plea and taking into consideration of the fact that now the revision petitioner is aged about 62 years, is of the view that sentence of imprisonment awarded by the trial Court as confirmed by the lower appellate Court is to be set aside, instead, the default sentence is to be imposed in the event of non payment of compensation.
25. In the result, the criminal revision is dismissed confirming the conviction of the revision petitioner/accused under Section 138 read with 142 of the Negotiable Instruments Act, which has been upheld by the lower appellate Court.
26. However, the sentence of imprisonment awarded by the trial Court as confirmed by the lower appellate Court is set aside and the sentence of award of compensation by the trial Court as confirmed by the lower appellate Court is maintained. Meantime, insofar as the award of compensation by the trial Court as confirmed by the lower appellate Court is concerned, pending disposal of the revision petition, the revision petitioner has deposited Rs.2 lakhs and remains in deposit.
27. The revision petitioner/accused is granted six months time from the date of receipt of a copy of this order to pay the balance amount of Rs.2 lakhs towards compensation amount to the respondent/complainant, failing which, she shall undergo one month simple imprisonment. The respondent/private complainant is permitted to withdraw the sum of Rs.2 lakhs deposited by the revision petitioner during the pendency of this revision.
31.03.2015 Index :Yes/No Internet:Yes RR To
1.The Principal Sessions Judge, Virudhunagar at Srivilliputhur
2.The Judicial Magistrate (Fast Track) Court, Srivilliputhur
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
M.SATHYANARAYANAN,J.
RR Crl.R.C.(MD)NO.891 of 2004 31.03.2015