Madras High Court
V.Anuradha vs N.Kumudha on 25 June, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25.06.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.1194 of 2006 V.Anuradha .. Petitioner Vs. N.Kumudha .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to set-aside the judgment passed in C.A.No.16 of 2006, on the file of Additional District Sessions Court, (Fast Track Court No.I), Erode, dated 13.09.2006, against C.C.No.894 of 2004, on the file of Judicial Magistrate-I, Erode, dated 02.01.2006. For Petitioner : Mr.C.S.Saravanan For Respondent : Mrs.R.Hemalatha - - - ORDER
The brief facts of the case are as follows:-
The respondent herein / complainant had filed a case in C.C.No.894 of 2004, on the file of Judicial Magistrate-I, Erode, against the revision petitioner herein / accused for the offence under Section 138 r/w Section 142 of the Negotiable Instruments Act, stating that the accused had borrowed a loan of a sum of Rs.4,00,000/- from the complainant on 01.04.2004. In order to discharge the said loan, the accused had issued a cheque dated 05.06.2004 for a sum of Rs.4,00,000/- to and in favour of the complainant, drawn on Tiruchengode Co-operative Urban Bank Ltd., Tiruchengode. The complainant had presented the said cheque with his bankers viz., State Bank of Travancore, Erode Branch for realisation on 16.07.2004 and the same was returned with the endorsement of 'insufficient funds'. Thereafter, the accused had observed necessary formalities and had filed the said case.
2. On the side of complainant, two witnesses were examined and seven documents were marked as Exs.P1 to P7. The complainant was examined as P.W.1 and the bank manager was examined as P.W.2. Ex.P1 is the cheque, Ex.P2 is the return memo, Ex.P3 is the debit advice, Ex.P4 is the advocate notice, Ex.P5 is the acknowledgment card, Ex.P6 is the postal receipt and Ex.P7 is the statement of account of the accused.
3. On the side of the accused, five witnesses were examined and eleven documents were marked, which are as follows:-
Ex.R1-copy of the complaint on the file of Judicial Magistrate-II, Ex.R2-order copy of said complaint, Exs.R3 and R4-copy of the cheques, Ex.R5-statement of Gomathi, Ex.R6-statement of Seshadri, Ex.R7-evidence of Murugesan, Ex.R8-a copy of the statement made before Panchayatdars, Ex.R9-address of accused, which was given prior to opening of the bank account, Ex.R10-ration card and Ex.R11-a copy of complainant's bank account.
4. P.W.1 had adduced evidence stating that the accused had borrowed a sum of Rs.4,00,000/- on 01.04.2004. She had also issued post dated cheque for the said amount dated 05.06.2004. P.W.1 further stated that the cheque was presented on 16.07.2004. The same was returned. P.W.1 had marked Exs.P1-returned cheque, Ex.P2-return memo, Ex.P3-debit advice, Ex.P4-advocate notice, Ex.P5-postal receipt, Ex.P6-acknowledgment card.
5. P.W.2, the General Manager, who is attached to the Tiruchengode Urban Co-operative Bank had adduced evidence stating that the accused bank account is 4496. The said cheque came for collection on 22.07.2004. On that day, the bank balance in the accused account was a sum of Rs.921.51. Therefore, the said cheque was returned unpaid.
6. After the accused was questioned, she denied her guilt and hence trial was commenced.
7. R.W.1 had adduced that she had married one Vasudevan, teacher and that she was his second wife. He expired while he was in service. She further stated that she is unable to receive the death benefits of her late husband. One Gomathi, who was born to her late husband Vasudevan through his first wife had also claimed a share over the death benefits of her late father. Therefore, the amount had been shared between them. The said Gomathi had received Rs.25,000/- as her share and R.W.1. had received Rs.75,000/- as her share. Thereafter, the said Gomathi had arranged a panchayat. As per the panchayat decision, R.W.1. was ordered to pay a sum of Rs.1,65,000/- to the said Gomathi. At that time, she had no money and thereafter she issued four blank cheques and also gave two pronotes. R.W.1 further stated that the said Gomathi had filed a civil suit before the District Munsif Court, Tiruchengode against the Government and had sought for non-disbursal of death benefits of her late father. While the case was pending, the said Gomathi had filed C.C.No.48 of 2002, on the file of Judicial Magistrate-II, Erode for dishonour of cheque. In the said case, she had been acquitted. The said Gomathi had set up a person and filed a case against her. R.W.1, in support of her evidence, had marked Ex.R1-a copy of complaint filed by Gomathi, Exs.R3 and R4-copy of the two cheques, Ex.R5-statement of Gomathi, Ex.R6-statement of Seshadri, Ex.R7-evidence of Murugesan and Ex.R8-a copy of the statement made before Panchayatdars.
8. R.W.2 had adduced evidence stating that he knows the complainant. He further stated that he had adduced evidence before the Judicial Magistrate-II, Erode in C.C.No.487 of 2002. Therefore, the accused had received two cheques and handed this over to Gomathi. Out of the two cheques, one cheque was for a sum of Rs.1,00,000/- and another cheque was for a sum of Rs.40,000/-.
9. On considering the evidence laid down on both sides and on perusing the documents marked by both the parties, the learned Magistrate has opined that the Ex.P1, i.e, cheque for a sum of Rs.4,00,000/-, which was issued by the accused had not been honoured and hence held that the accused was guilty of offence under Section 138 r/w 142 of Negotiable Instruments Act. Hence, the learned Magistrate had sentenced the accused to undergo simple imprisonment for a period of one year and imposed a fine of a sum of Rs.1,000/- in default, she had to undergo further simple imprisonment for a period of one month.
10. Aggrieved by the said conviction and sentence, the accused had filed an appeal in C.A.No.16 of 2006 on the file of Additional District Sessions Court, Fast Track Court No.I, Erode. The learned judge, after hearing the arguments of the learned counsels on both sides and on perusing the trial Court's judgment, had observed that the signature in Ex.P1 had been admitted by the accused. Further, it is seen that there was a dispute between the complainant and accused. The said dispute had been sorted out before the Panchayatdars. At that time, four cheques were issued including Ex.P1-cheque. As the said cheque was dishonoured, the learned judge held the accused guilty of offence under Section 138 of Negotiable Instruments Act, dismissed the appeal and confirmed the trial Court's order.
11. Against the dismissal of the said appeal, the above revision has been filed by the accused.
12. The learned counsel for the revision petitioner submitted that the complainant is not a rich person to lend a loan of a sum of Rs.4,00,000/- to the accused. The trial Court had not considered the financial position of the complainant. The revision petitioner was not in a position to borrow money from the complainant. As such, there is no legally enforceable liability on the part of the petitioner.
13. The learned counsel for the complainant submitted that the cheque was presented in the presence of Panchayatdars and one of the Panchyatdars had also adduced evidence that the cheque was issued before the Panchayatdars. Further, the signature in the said cheque had been admitted by the accused. The learned counsel further submits that the case was proved before the Courts below and as such the complainant should be awarded compensation.
14. On verifying the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned judgment of the Courts below, this Court does not find any discrepancy in the said judgment. However, the complainant had established her case before the Courts below. Therefore, she is entitled to receive compensation from the accused. Accordingly, this Court directs the accused to pay compensation of a sum of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand only) to the complainant. Further, this Court directs the learned Judicial Magistrate-I, Erode to issue bailable warrant on the accused and secure her into judicial custody. If the accused remits the said compensation amount into the credit of C.C.No.894 of 2004, on the file of Judicial Magistrate-I, Erode, before being remanded into judicial custody, then the accused would be set at liberty and this Court order would not be operated any further. If the accused pays the said compensation of a sum of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand only), the complainant is at liberty to withdraw the same, after filing a Memo before the trial Court. The above observation has been made by this Court after invoking the discretionary power vested with it.
15. Resultantly, the above revision has been disposed of with the above modification. Consequently, the judgment and conviction passed in C.A.No.16 of 2006, dated 13.09.2006 on the file of Additional District Sessions Court, Fast Track Court No.I, Erode, confirming the conviction and sentence passed in C.C.No.894 of 2004, on the file of Judicial Magistrate-I, Erode, dated 02.01.2006 is modified. Accordingly ordered.
25.06.2012
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Index : Yes / No.
Internet : Yes / No.
To
1. The Judicial Magistrate-I,
Erode.
2. The Additional District Sessions Court,
Fast Track Court No.I, Erode,
C.S.KARNAN, J
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Crl.R.C.No.1194 of 2006
25.06.2012