Madras High Court
K.N.Unnikrishnan vs M.Sivakumar on 10 July, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10 / 07 / 2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.1602 of 2007 K.N.Unnikrishnan .. Petitioner Vs. M.Sivakumar .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the judgment of the learned Principal Sessions Judge of Erode District at Erode in C.A.No.69 of 2007, dated 26.09.2007 confirming the conviction and sentence passed by the learned Judicial Magistrate-II, Erode in C.C.No.327 of 2002, dated 05.03.2007. For Petitioner : Mr.A.K.Kumaraswamy For Respondent : Mr.N.Manokaran - - - ORDER
The revision petitioner herein / accused has preferred this Criminal Revision in Crl.R.C.No.1602 of 2007 against the judgment made in C.A.No.69 of 2007, on the file of Principal Sessions Judge, Erode confirming the conviction and sentence passed in C.C.No.327 of 2002, on the file of Judicial Magistrate-II.
2. The respondent / complainant's case is as follows:-
The complainant is running a textile business. The accused is the proprietor of the firm being run in the name and style of "Action Suit". The accused, in order to repay the loan advanced by one Govarthanam of "Govarthanam Textiles" had issued a cheque drawn on State Bank of Trvancore, Ernakulam Branch to the said Govarthanam. On 05.06.2002, the said Govarthanam had received a loan of Rs.2,00,000/- from one Sivakumar, the complainant herein and had endorsed the said cheque issued to him by the accused to and in favour of the complainant. On 21.06.2002, when the complainant had deposited the said cheque with his bankers viz., South Indian Bank, Erode Branch, it was returned with the endorsement of "payment stopped by drawer". The complainant came to know about return of cheque on 25.06.2002. The complainant had then issued a lawyer's notice to the accused on 05.07.2002. The accused had sent a reply notice making false allegations. Hence, the complainant had filed a complaint against the accused under Section 138 of Negotiable Instruments Act, before the Judicial Magistrate-II, Erode.
3. The accused pleaded not guilty before the trial Court and trial was conducted.
4. On the complainant's side, two witnesses were examined and thirteen documents were marked as Exs.P1 to P13 viz, Ex.P1-power of attorney deed dated 17.04.2003, Ex.P2-cheque dated 21.06.2002, Ex.P3-the endorsement made on Ex.P2 cheque, Ex.P4, the return memo of bank dated 24.06.2002, Ex.P5-debit advice dated 25.06.2002, Ex.P6, the copy of lawyer's notice dated 05.07.2002, Ex.P7, the postal receipt dated 05.07.2002, Ex.P8-acknowledgment card, Ex.P9-reply notice dated 11.07.2002, Ex.P10, copy of 'C' form, Ex.P11-copy of partnership deed, Ex.P12, the copy of bank account statement of accused and Ex.P13, the copy of extract of cheque return register. On the respondent's side, no witness was examined. One document was marked as Ex.R1, viz., certified copy of compromise agreement dated 25.10.2001.
5. P.W.1, Govarthanam, the power of attorney holder of the complainant had adduced evidence that the complainant is the partner of the firm, "K.K.S.R.Textiles"; that the said firm was a registered partnership firm, and in support of his evidence had marked Ex.P11; that the power of attorney letter given to him had been marked as Ex.P1; that there were business transactions in textiles between him and the accused; that in the course of business, the accused has to pay him a sum of Rs.2,00,000/-; that in order to settle the said debt, the accused had issued a cheque dated 21.06.2002, drawn on State Bank of Travancore, Ernakulam Branch, for a sum of Rs.2,00,000/- to him; that the said cheque was marked as Ex.P2; that he had endorsed the said cheque given to him by the accused to the complainant herein for settlement of loan payable by him to the complainant; that when the said cheque was presented for collection on 21.06.2002, with the complainant's bankers, viz., South Indian Bank, Erode, it was returned with the endorsement of "payment stopped by drawer" through return memo marked as Ex.P4; that the debit advice given by South Indian Bank was marked as Ex.P5; that the lawyer's notice was sent by the complainant to the accused on 05.07.2002 and the copy of the said notice has been marked as Ex.P6; that the postal receipt for proof of sending notice was marked as Ex.P7; that the acknowledgment card for proof of receipt of notice was marked as Ex.P8; that the reply notice sent by the accused was marked as Ex.P9; that the copy of 'C' form had been marked as Ex.P10; that the partnership deed had been marked as Ex.P11.
6.Thiru.Ganapathy, the Chief Manager of State Bank of Travancore, Ernakulam Branch was examined as P.W.2. He had adduced evidence that the accused firm viz., Akshay & Co. had a cash credit account (CC 8291) in their bank; that the said cheque issued by the accused (Ex.P2) came for collection at their bank on 24.06.2002; that the said cheque was returned for the reason of "payment stopped by drawer" and intimated through return memo marked as Ex.P4; that on that day, the amount payable by the accused to their bank was Rs.12,92,382.51/- ; that the bank account statement pertaining to this had been marked as Ex.P12; that the certified copy of extract of cheque return register had been marked as Ex.P13.
7. The learned Judicial Magistrate framed three issues viz.,
(i) Whether the complainant and the accused had business transaction relating to textiles?
(ii) Whether the complainant had sold the accused textiles on credit basis? and
(iii) Whether the accused had issued the cheque for Rs.2,00,000/- to the complainant for payment towards such supply of clothes?
8. It is seen from Ex.R1, the settlement agreement that business transactions existed between the accused and the complainant. It is also seen that the complainant had been supplying lungis to the accused. It is seen from the agreement that the accused had admitted that he owes the complainant a sum of Rs.11,55,653.54/-. As such, the learned Magistrate held that business transactions existed between the accused and the complainant.
9. The learned counsel for the complainant had argued that the complainant, viz., Sivakumar had the legal rights to launch this case as the holder in due course and that subsequent to the filing of the case, a petition had been filed to enable the said Govarthanam himself to be complainant in the present case and that the said petition was allowed and the said Govarthanam had been examined as the complainant in the present case. It is seen from Ex.P2 that the said Govarthanam had endorsed the cheque in favour of the said Sivakumar and this endorsement had been marked as Ex.P3. The learned counsel for the complainant had further argued that when the said cheque was presented for encashment, it was returned with the endorsement, "payment stopped by drawer" but at that point of time, the accused already owed the bank a sum of Rs.14,92,382.51- and as such this clearly proves the guilt of the accused.
10. The learned counsel for the accused had argued that the date of endorsement of the cheque to the said Sivakumar had not been mentioned and that when the said Govarthanam had endorsed the said cheque to the complainant Sivakumar, no transactions had occurred between them and as such the question to be answered is whether the said Sivakumar had the necessary requisites to be called as holder in due course when the said date of endorsement itself has not been mentioned and that this had not been proved on the complainant's side.
11. The learned Magistrate, on considering the oral and documentary evidences held the accused guilty of offence under Section 138 r/w 142 of Negotiable Instruments Act and sentenced the accused to undergo simple imprisonment for a period of one year and imposed a fine of Rs.3,000/- in default of payment of fine, the accused was to undergo a further period of simple imprisonment for two months. The learned Magistrate further directed that the present sentence has to be compounded with the sentence imposed on the accused in 243 of 2002.
12. Aggrieved by the conviction and sentence passed by the trial Court, the accused has preferred an appeal in Crl.A.No.69 of 2007, before the Principal Sessions Judge, Erode District. The learned counsel for the appellant has argued in his appeal that the complainant was not examined as a witness and that the complainant was not a holder in due course at the time of filing the complaint. It was argued that the vital submissions regarding the civil suit in O.S.No.350 of 2002, before the Sub Court, Ernakulam was not considered. It was pointed out that the trial Court have not considered that the respondent has admitted that there was an order by the Sub Court to produce the cheques before the Sub Court and that it was not obeyed by the complainant.
13. The learned appellate judge framed the following issues for consideration, viz., "(i) Whether the conviction and sentence of the trial Court is liable to be set-aside?
(ii) To what relief? "
14. The learned judge observed that the original complaint was filed by one Sivakumar and as per Crl.M.P.No.2998 of 2003, dated 15.09.2005, Mr.Govarthanam was impleaded as complainant. There was no revision against the said order. During trial, the said Govarthanam was examined as P.W.1 and the cheque was also drawn in favour of Govarthanam Textiles, Erode. As such, it is seen that the holder in due course was not the complainant and the payee of the cheque was examined as P.W.1. Hence, the learned judge held that there was no reason to conclude that the complaint is affected for the reason that passing of consideration has not been proved. The learned judge, on careful scrutiny of evidence of P.W.2, and considering that the civil suit in O.S.No.350 of 2002 has no relevance to the criminal proceedings, before this Court, and on considering the oral and documentary evidence, dismissed the appeal and confirmed the order of the trial Court.
15. Aggrieved by the dismissal of his appeal, the accused has preferred the present revision.
16. The learned counsel for the revision petitioner has argued that the complainant Sivakumar was not examined as a witness in the case and that it has not been proved that the cheque was issued towards any debt or liability. It was pointed out that the learned judge failed to see that the endorsement on the cheque was blank and it is not supported by consideration. It was further pointed out that the learned judge failed to see that a civil suit in O.S.No.350 of 2002 is pending on the file of the Sub Court, Ernakulam, between the parties, wherein the issue of disputed cheque is questioned. It was pointed out that the learned judge failed to note that P.W.1 had admitted in his evidence that he was directed to produce the cheque before the Sub-Court, Ernakulam by an order of Court but he did not obey the order. The learned counsel has contended that as the complainant had not produced the account books, there is no proof to show that the cheque in question was issued towards any existing liability.
17. The learned counsel for the respondent argued that as per Section 138 of Negotiable Instruments Act, four aspects arise for consideration, viz., issuance of cheque, validity of cheque, presentation of cheque, return of cheque and legal notice. These aspects have been proved before the trial Court and punishment had been imposed on the accused. The same was confirmed by the first appellate Court. The judgments of the Courts below have been well considered.
18. On verifying the facts and circumstances of the case and submissions made by the learned counsels and on scrutinizing the impugned judgments of the Courts below, this Court is of the considered view that there is no discrepancy in the judgments of the Courts below, as regards the conviction. However, the sentence of one year simple imprisonment imposed on the accused is on the higher side. Therefore, this Court reduces the sentence of simple imprisonment from one year to six months.
19. This Court further directs the accused to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs only), to the complainant as compensation, as it is found to be appropriate. Originally the case was filed in the year 2002. Therefore, this Court directs the Judicial Magistrate-II, Erode to issue bailable warrant on the accused and secure the accused into judicial custody to undergo simple imprisonment for a period of six months, as per this Court order. If the accused remits the compensation amount of a sum of Rs.2,00,000/- (Rupees Two Lakhs only) into the credit of C.C.No.327 of 2002, on the file of Judicial Magistrate-II, Erode before being remanded into judicial custody, the accused would be set at liberty and this Court order would not be operated against him any further. If the accused deposits the said compensation amount before the trial Court, it is open to the complainant to withdraw the same after filing a Memo before the trial Court. This modified order has been passed by this Court by invoking its discretionary power vested with it.
20. Resultantly, the above revision has been disposed of with the above observations. Consequently, the judgment of conviction and sentence passed in C.A.No.69 of 2007, on the file of Principal Sessions Judge, Erode, dated 26.09.2007, confirming the conviction and sentence passed in C.C.No.327 of 2002, on the file of Judicial Magistrate-II Erode, dated 05.03.2007 is modified. Accordingly ordered.
r n s To
1. The Judicial Magistrate-II, Erode.
2. The Principal Sessions Judge, Erode