Madras High Court
M.Mohammed Faisal vs V.Christy on 28 February, 2020
Author: B.Pugalendhi
Bench: B.Pugalendhi
Crl.R.C(MD)No.203 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON :29.11.2019
PRONOUNCED ON : 28.02.2020
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.R.C(MD)No.203 of 2014
M.Mohammed Faisal ...Petitioner
Vs
V.Christy ...Respondent
PRAYER: Criminal Revision Case has been filed under
Section 397 r/w 401 of the Criminal Procedure Code,
to call for the records relating to the judgment of
the I Additional District Sessions Judge, Thoothukudi
in Crl.A.No.90 of 2013 dated 01.02.2014 confirming
the conviction and sentence passed by the Judicial
Magistrate (Fast Track Court), Thoothukudi in C.C.No.
311 of 2012, dated 24.09.2013 and set aside the same.
For petitioner : Mr.T.Senthil Kumar,
Legal Aid Counsel
For Respondent : Mr.A.Thiruvadi Kumar
ORDER
This criminal revision case has been filed as against the concurrent findings of the learned Judicial Magistrate, Thoothukudi in C.C.311 of 2012, http://www.judis.nic.in 1/30 Crl.R.C(MD)No.203 of 2014 dated 27.09.2013 and I Additional District Sessions Judge, in C.A.No.23 of 2014, on the complaint filed by the respondent under Section 138 of NI Act
2.The case of the respondent / complainant is as follows:
(i)The complainant is one of the reputed fish brokers, purchasing of fish at Thoothukudi Fishing Harbour and selling it to various seafood processing industries in Tamil Nadu and Kerala. The petitioner / accused used to purchase fish in huge quantities from the complainant on credit basis. In that business transaction during the period from 22.09.2003 to 02.10.2013, the accused owe a sum of Rs.16,50,000/-
to the complainant. Therefore, the complainant demanded the above said amount from the petitioner/accused, who in turn, issued a cheque[ExP1] bearing No.546600 dated 28.12.2003 drawn in favour of the complainant for a sum of Rs. 16,50,000/- towards discharge of the above said liability.
http://www.judis.nic.in 2/30 Crl.R.C(MD)No.203 of 2014
(ii)The complainant presented the cheque for collection in Bank of India, Thoothukudi on 11.05.2004. But the cheque was dishonoured and returned with an endorsement 'funds insufficient' on 14.05.2004 through a memo [ExP2].
(iii) On 26.05.2004 the complainant issued a legal notice [ExP3]to the accused insisting the accused to pay the cheque amount within fifteen days. The legal notice was received by the accused on 31.05.2004 and the acknowledgment card is marked as [ExP4]. However, the accused neither replied nor paid the amount as stipulated under the Negotiable Instruments Act. Therefore, the respondent/complainant filed the above complaint for the offence under Section 138 of NI Act before the Judicial Magistrate, Thoothukudi in C.C.No.311 of 2012.
3.In conclusion of the trial, the trial Court found the petitioner / accused guilty under Section 138 NI Act and convicted and sentenced him to undergo simple imprisonment for one year and directed to pay compensation of Rs.16,50,000/- to the complainant to http://www.judis.nic.in 3/30 Crl.R.C(MD)No.203 of 2014 within a period of one month and in default of payment, one month simple imprisonment was also ordered. As against the conviction and sentence, the accused preferred an appeal before the learned I Additional District Sessions Judge, Thoothukudi in Crl.A.No.90 of 2013, wherein, the appellate Court, dismissed the appeal by confirming the judgment of the trail Court.
4.Aggrieved over the judgment of the appellate Court, the accused has filed the present criminal revision case.
5.When the matter was taken up for hearing on 09.04.2019, at the request of the learned Counsel on either side, the matter was referred to Mediation Centre attached to this Bench. However, the parties were not present before the Mediation Centre and therefore, mediation could not be effected in this case.
6.When the matter was taken up for hearing on 25.07.2019, the learned Counsel on record for the petitioner filed a memo dated 18.07.2019 withdrawing http://www.judis.nic.in 4/30 Crl.R.C(MD)No.203 of 2014 his appearance for the petitioner in this case, on the ground no instructions from the petitioner.
7.Even on 13.09.2019 when the matter was taken up for hearing, there was no representation for the petitioner and the matter was posted on 19.09.2019, even on that day there was no representation on behalf of the petitioner. Therefore, this Court recalled the earlier order suspending the sentence passed by this Court in MP(MD)NOs.2 and 3 of 2014, dated 18.06.2014 and the Inspector of Police, South Police Station, Tuticorin was directed to secure the petitioner/accused and to produce him before this Court on 15.10.2019.
8.Further on 15.10.2019 also, there was no representation on behalf of the petitioner and the Police also did not secure the petitioner/accused. Therefore, this Court by order dated 15.10.2019 appointed Mr.T.Senthil Kumar, who is having 20 years of experience in criminal side, as Legal Aid Counsel to defend the petitioner and to proceed with the revision case.
http://www.judis.nic.in 5/30 Crl.R.C(MD)No.203 of 2014
9.Heard Mr.T.Senthil Kumar learned Counsel for the revision petitioner and Mr.A.Thiruvadi Kumar, learned Counsel for the respondent.
10.The learned Counsel for the petitioner has raised the following grounds:
(i) There is no documentary evidence in respect of the transaction between the petitioner and the respondent during the period from 22.09.2003 to 02.10.2003.
(ii)The complainant has not discharged the burden of proof that there was a legally enforceable debt against the petitioner.
(iii) The cheque was issued for the security purpose and not for any legal liability.
(iv) PW1 has not offered any explanation regarding the involvement of one Christal Paso who was in charge of the day to day affairs of the business.
(v)PW1's evidence was inconsistence and from her evidence it is clear that she was not aware of the transaction between her husband and the revision petitioner and therefore, her evidence is to be discarded.
http://www.judis.nic.in 6/30 Crl.R.C(MD)No.203 of 2014
(vi) As per Section 143 of NI Act, the trial Court ought to have taken the case only as summary proceedings,but the learned Magistrate has tried the case as a warrant case under C.C.No.311 of 2012 without any order to that effect.
(vii) As per Section 261 CrPC, the Magistrate can impose maximum sentence only for six months. Hence, the entire case is hit by the provision of Section 461(i),(n)and (m) of CrPC.
11.In support of his contention the learned Counsel for the revision petitioner, also relied on the following judgments.
(i) Vinita S.Rao Vs Essen Corporate Services Private Limited and another, reported in (2015) 1 SCC (Cri) 726.
(ii) A.C.Narayanan Vs State of Maharashtra and another, reported in (2014) 11 SCC 790.
(iii) Swaminathan Pillai Vs A.Senthil Kumar, reported in 2013 1 Bankmann 42
(iv) J.V.Baharuni and another V State of Gujarat and another, dated 16.10.2014. http://www.judis.nic.in 7/30 Crl.R.C(MD)No.203 of 2014
12.By relying on the above said judgments, the learned Counsel submits that the trial Court has not appreciated the legal position in a proper manner. The legally enforceable debt has to be independently proved by the complainant in order to relate the cheque, which got bounced and omission to prove the existence of debt, the complaint under Section 138 of NI Act cannot be sustained.
13.Per contra, Mr.A.Thiruvadi Kumar, learned Counsel appearing for the respondent/complainant submits that originally the cheque was issued in favour of one Vitalis, husband of the respondent and the complaint was originally filed by the said Vitalis and pursuant to his death, the present complainant was brought on record as per the order of the learned Judicial Magistrate in Cr.M.P.No.856 of 2012, dated 29.01.2013. Regarding the existence of debt, the failure to mention the accounts cannot be a fatal in view of the law laid down by the Hon'ble Apex Court in a Catena of decisions.
14.The learned Counsel further submits that in this case, the respondent/ Christy stepped in to http://www.judis.nic.in 8/30 Crl.R.C(MD)No.203 of 2014 the shoes of her husband, who died pending the proceedings. The ignorance if any admitted in the evidence of Christy (wife) cannot be a sole ground to reject the case of the complainant and the fact remains that the Christy was aware of the transaction. Further, the transactions pertains to the year 2003 and the said Christy was cross examined in the year 2013.Insofar as the failure to examine Christal Paso is concerned, the burden is upon the petitioner/accused to rebut the presumption, when the execution of the cheque is admitted.
15.The offence under Section 138 of NI Act is triable as a summon case or summary trial case. The NI Act itself is a self contained Code and it would prevail over the procedure laid down under CrPC.
16.The learned Counsel in support of his contention relied on the following judgments:
(i) Ambica Quarry Works Vs State of Gujarat and others, reported in (1987) 1 SCC 213;
(ii) Rangappa Vs Sri Mohan, reported in 2010 (2) MWN (Cr) DCC 5 (SC);
http://www.judis.nic.in 9/30 Crl.R.C(MD)No.203 of 2014
(iii)Kalidas, Director, Kaveri Engineering Industries Limited, Trichy -4 Vs Industrial Reconstruction Bank of India (IRBI), Chennai, reported in 2010(2) MWN (Cr) DCC 14.
(iv)Anbarasu Vs Mukanchand Bothra, reported in 2019 (3) MWN (Cr) DCC 1(Mad)
17.This Court paid its anxious consideration to the rival submissions made on either side and perused the materials documents.
18.The present revision has been filed by the accused as against the concurrent findings of the trial Court and the appellate Court.
19.The question of facts with regard to the issuance of the cheque, presentation of cheque, dishonour of the cheque and the issuance of legal notice were established before the trial Court and both the Courts below held that the procedures as contemplated under Section 138 of NI Act were strictly complied with and the respondent/complainant has established his case as against the accused. http://www.judis.nic.in 10/30 Crl.R.C(MD)No.203 of 2014
20.The scope of Criminal Revision under Section 397 r/w 401 CrPC is very limited and this Court cannot re-appreciate the case, unless and until there is a illegality, perversity or impropriety in the findings of the trial Court and the appellate Court.
21.This Court in Anbarasu Vs Mukanchand Bothra, reported in 2019 (3) MWN (Cr) DCC 1(Mad) held that while exercising the revisional powers under Section 397 r/w 401 CrPC, the Court is required to find out if there is any illegality or impropriety in the findings of the trial Court and the appellate Court warranting interference and it is not open to this Court to exercise the revisional power as second appellate forum.
22.The Hon'ble Supreme Court in J.V.Baharuni and another Vs State of Gujarat and another, reported in 2015 (1) CTC 284, has held as follows:
“Having heard the learned Counsel for the parties, the following issues arise for our determination.
http://www.judis.nic.in 11/30 Crl.R.C(MD)No.203 of 2014 22.1.What is the legislative intent of the Negotiable instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the object of incorporating Section 143.
22.2.What are the factors, the appellate Court has to keep in mind while arriving at a conclusion about the procedure adopted by the trial Court in conducting the trial?
22.3.In what circumstances a case should be remanded back for de novo trial?
23.The legislature, having noticed that the prevailing sections 138 to 142 of the NI Act could not completely achieve the desired result, has chosen to insert Sections 143 to 147 with an avowed object of speedy disposal of cases relating to dishonour of cheques. To achieve the speedy disposal, the legislature has recommended a simplified procedure for trial of the offences under the NI Act, ie.
“summary trial”. The amendment to the Act also made the offence “compoundable” as the punishment provided in the unamended Act was inadequate and the procedure was found to be cumbersome. Thus, incorporation of Sections 143 to 147 was especially aimed at early disposal of cases in a simplified procedure http://www.judis.nic.in and more particularly, to do away with all the 12/30 Crl.R.C(MD)No.203 of 2014 stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising with the right of the accused for a fair trial. This results in overcoming the huge docket of the courts with matters pertaining to dishonour of cheques as their prolonged trials became a serious matter of concern.
24.Sub Section (1) of Section 143 of the NI Act, makes it clear that all the offences under Chapter XVII of the NI Act shall be tried by the Magistrate “summarily” applying, as far as may be, the provisions of Section2 262 to 265 CrPC. It further provides that in case of conviction in a summary trial, the Magistrate may pass a sentence of imprisonment for a term not exceeding one year and a fine exceeding Rs.5000/- Sub Section (1) of Section 143 of the NI Act, further provides that during the course of a summary trial, if the Magistrate is of the opinion that the nature of the case requires a sentence for a term exceeding one year or for any other reason, it is undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness whom he had http://www.judis.nic.in examined, or proceed to rehear the case, Sub- 13/30 Crl.R.C(MD)No.203 of 2014
section (2) mandates that so far as practicable, the trial has to be conducted on a day to day basis until its conclusion.
25.An analysis of Section 143 brings out that the Magistrate, initially, should try the case “summarily” if he is of the opinion that he is not going to pass sentence of imprisonment not exceeding one year and fine of Rs.5000/-. In case during the course of trial, if the Magistrate forms a different opinion that in the circumstances of the case, he may order a sentence of a term exceeding one year or for any other reason, it is undesirable to try the case summarily, he must record the reasons for doing so and go for a “regular trial”. Thereafter, the Magistrate can also recall any witness, who has been examined and proceed to hear or rehear the case. So, the second proviso to Sub Section (1) of the Section 143, gives discretion to the Magistrate to conduct the case other than in summary manner.”
26. This Court in Madvi Coop.Bank after analyzing the objects and importance of Sections 143 to 147 of the NI Act, this Court observed that Section 143 of the Act gave power to the Court to try cases summarily. At paras 20, 21, 25 and 29 of the http://www.judis.nic.in said judgment, this Court observed; 14/30 Crl.R.C(MD)No.203 of 2014
“20.It may be noted that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of Section 146 similarly depart from the principles of the Evidence Act, Section 143 makes it possible for the complaints under Section 138 of the NI Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily.”
21.It is, however, significant that the procedure of summary trial is adopted under Section 143 subject to the qualification 'as far as possible', thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non obstante clause and the expression 'as far as possible' used in Section 143 coupled with the non obstante clause in Section 145 allow for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a http://www.judis.nic.in summary trial under the Code of Criminal 15/30 Crl.R.C(MD)No.203 of 2014 Procedure) in view of Sections 251 and 254 and especially Section 273 of the Code. The accused, however, is fully protected, as under Sub Section (2) of Section 145, he has the absolute and unqualified right to have the complainant and any or all of this witnesses summoned for cross examination.
22. It is not difficult to see that Sections 143 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make trial and procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial. Here we must take notice of the fact that cases under Section 138 of NI Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of little help and cases of dishnonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court http://www.judis.nic.in system. 16/30 Crl.R.C(MD)No.203 of 2014
29.Once it is realised that Sections 143 to 147 were designed especially to lay down a much simplified procedure for the trial of dishonoured cheque cases with the sole object that the trial of those cases should follow a course even swifter than a summary trial and once it is seen that even the special procedure failed to effectively and expeditiously handle the vast multitude of cases coming out to the Court, the claim of the accused that on being summoned under Section 145(2), the complainant or any of his witnesses whose evidence is given on affidavit must be made to depose in examination-in-chief all over again plainly appears to be a demand for meaningless duplication, apparently aimed at delaying the trial.”
43.There is no straitjacket formula to try the cases falling under the NI Act. The law provided therefor is so flexible that it is up to the prudent judicial mind to try the case summarily or otherwise. No doubt, the second proviso to Section 143 of the Act specifies that in case the Magistrate does not deem the case fit to try summarily, he shall record an order to that effect after hearing the parties. Just because this directive is not followed scrupulously by http://www.judis.nic.in the trial Court would itself not vitiate the 17/30 Crl.R.C(MD)No.203 of 2014 entire trial and appellate Court should not direct for a de novo trial merely on the ground that the trial court had not recorded the order for not trying the case summarily.
60.However, to summarise and answer the issues raised herein, the following directions are issued for the Courts seized of with similar cases:
60.1. All the subordinate Courts must make an endeavour to expedite the hearing of cases in a time-bound manner which in turn will restore the confidence of the common man in the justice delivery system. When law expects something to be done within prescribed time-limit, some efforts are required to be made to obey the mandate of law.
60.2.The learned Magistrate has discretion under Section 143 of the NI Act either to follow a summary trial or summons trial. In case, the Magistrate wants to conduct a summons trial, he should record the reasons after hearing the parties and proceed with the trial in the manner provided under the second proviso to Section 143 of the NI Act. Such reasons should http://www.judis.nic.in necessarily be recorded by the trial Court 18/30 Crl.R.C(MD)No.203 of 2014 so that further litigation arraigning the mode of trial can be avoided.”
23.In the light of the above settled principle, this Court proceeds to decide the issue.
24.Mr.T.Senthil Kumar, learned Counsel for the petitioner submits that neither in the complaint nor through any evidence the complainant has established the legally enforceable debt of Rs.16,50,000/- was due to the complainant. Not even a scrap of paper filed in support of their claim except this cheque in dispute and the complainant who was examined in this case was not at all aware of the transaction between the complainant and the accused.
25.Pending the trial, the complainant one Vitalis died on 02.11.2007 and therefore, his wife Christy the present respondent was impleaded as complainant and her evidence was also recorded.
26. The learned Counsel for the petitioner in support of his contention relied upon the judgment of the Hon'ble Supreme Court in A.C.Narayanan Vs State http://www.judis.nic.in 19/30 Crl.R.C(MD)No.203 of 2014 of Maharashtra and another, reported in (2014) 11 SCC 790, wherein the Hon'ble Supreme Court held as follows:
“In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant- payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous”.
27.In the said decision the Hon'ble Supreme Court has laid down the guidelines as regards the validity of the evidence of power of attorney holder http://www.judis.nic.in 20/30 Crl.R.C(MD)No.203 of 2014 and the mode of proof as regards the transaction.
The respondent/complainant was examined as power holder in the absence of the complainant Vitalis, since the said Vitalis died on 02.011.2007 during the trial.
28.The respondent/complainant Christy in this case had stepped into the shoes of her husband and died after institution of the complainant. The transaction between the complainant and the accused is on fishing trade. The complainant was a broker, who purchased fishes from fishermen and supplied to the accused. They have been doing the business for several years and with certain trust on 15.10.2009 the respondent/complainant was aware of the transaction between her husband and the accused. However, as a rustic fisher woman, she was not in a position to explain the details with regard to the transaction between her husband and the accused during the trial. The fact remains that the transaction has taken place between 22.09.2003 and 02.10.2003. The evidence was recorded in the year 2003, after nine long years and the entire business was also dealt with by her husband Vitalis and in http://www.judis.nic.in 21/30 Crl.R.C(MD)No.203 of 2014 this case the respondent/complainant has stepped into the shoes of her husband without any other option, as he died during the trial and therefore, the ratio laid down in A.C.Narayanan's case could not be made applicable to the facts and circumstances of this case.
29.It is useful to refer to the decision of the Hon'ble Supreme Court in Ambica Quarry Works Vs State of Gujarat and others, reported in (1987) 1 SCC 213, wherein the Hon'ble Supreme Court has held as follows:
“18. ... ... ... The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. But in view of the mandate of Article 141 that the ratio of the decision of this Court is a law of the land.
30.In yet another judgment in Sushil Suri Vs Central Bureau of Investigation and another, reported in (2011) 2 SCC (Cri) 764;
http://www.judis.nic.in 22/30 Crl.R.C(MD)No.203 of 2014
32.It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. In this regard, the following words of Lord Denning, quoted in Haryana Vs Financial Corpn Vs Jagdamba Oil Mills are also quite apt:
“22... Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases(as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line case falls, the broad resemblance to another case is not at all decisive.”
31.Considering the above principles laid down by the Hon'ble Supreme Court, the facts and circumstances of the case on hand, this ground raised by the learned Counsel for the petitioner/accused cannot be sustained.
http://www.judis.nic.in 23/30 Crl.R.C(MD)No.203 of 2014
32.The non examination of one Christal Paso was taken as a main ground by the learned Counsel for the petitioner that the said Crhistal Paso was an employer of the complainant and he knows the entire transaction between the accused and the complainant. The said Christal Paso had also lodged a similar complaint against one of the partners of the accused firm and therefore, the non examination of the said Christal Paso, according to the petitioner is one of the main grounds in this case.
33.The accused was charged for the offence under Setion138 of NI Act and he has not denied that the cheque was not issued by him and the signature found in the cheque was not that of him and therefore, the presumption under Section 139 of the NI Act would come into play. The cheque on presentation returned as insufficient funds. The complainant has also issued legal notice, which was also acknowledged by the accused and there was no reply for the statutory notice issued by the complainant. By referring the vague statement of PW1, the accused cannot take benefit of the transaction or existence of legally enforceable debt. The accused is http://www.judis.nic.in 24/30 Crl.R.C(MD)No.203 of 2014 supposed to prove the case of preponderance of probabilities and this vague statement is not sufficient to record the presumption as provided under the Act. In Rangappa Vs Sri Mohan, reported in 2010 (2) MWN (cr) DCC 5 (SC), a Three Judges Bench of the Hon'ble Supreme Court held that the failure to reply to the statutory notice would lead to the inference that there was merit in the complainant's version. Since the signature of the cheque was not disputed the statutory presumption comes into play and when the accused failed to raise the probable defence and rebut the presumption, the accused cannot take advantage.
34.The learned Counsel for the petitioner had also raised an interesting point that as per Section 143 of NI Act that the trial Court ought to have taken the complaint only as a summary proceedings and if the Magistrate was willing to try the case summarily, he ought to have recorded the reasons for the same after hearing both parties and thereafter recall any witness, who have been examined and proceed to hear or rehear the case in the manner provided under the Code and in this case, the trial http://www.judis.nic.in 25/30 Crl.R.C(MD)No.203 of 2014 Court without following the procedure as contemplated under Section 143 of the NI Act, straight away taken the case as warrant case in C.C.No.311 of 2012 and failed to dispose of the case as contemplated under Section 248 CrPC.
35.He further relying upon the Hon'ble Supreme Court in Swaminathan Pillai Vs A.Senthil Kumar, reported in 2013 1 Bnankmann 42, submitted that as per Section 261 CrPC, the Magistrate can impose a maximum sentence only for six months and if the Magistrate wants to convert the summon case into a warrant case, he must proceed with as contemplated under Section 259 CrPC and none of the above said procedures have been complied with by the trial Court and therefore, the entire trial proceedings is vitiated as per the provision of Section 461 (i),(n) and (m) of CrPC.
36.Section 143 of NI Act laid down procedures that the offence under Section 138 of NI Act is triable as summons case or summary trial. Though the Magistrate is having power to treat the summons case as that of a warrant case, then the Magistrate has to http://www.judis.nic.in 26/30 Crl.R.C(MD)No.203 of 2014 assign reasons for converting the same as that of a warrant case. Mere because of the case was taken on file in C.C.No.311 of 2012, it cannot be presumed that the case was tried as a warrant case. The Negotiable Instruments Act is a self contained code, which provides for trial. It would prevail over the procedures laid down under the Criminal Procedure Code.
37.In this case the accused has been questioned under Section 313 CrPC and the trial Judge had followed the procedure as that of summons case and as such there is no procedural violations and there is no ground to hold that the trial is vitiated of procedural lapses. The maximum punishment is two years. However, the minimum punishment alone was imposed.
38.The grounds raised in the criminal revision case and the additional grounds raised by the learned Counsel for the petitioner are not sufficient to interfere with the findings of the trial Court and the appellate Court. The accused has not denied the issuance of cheque and has not denied http://www.judis.nic.in 27/30 Crl.R.C(MD)No.203 of 2014 the signature found in the cheque ExP1 and moreover, the during the trial, the accused has taken as plea that the cheque was issued only for a security purpose on the other hand he has taken a plea that the entire amount was paid to one Christal Paso, who is the employer of the complainant.
39.This Court is of the view that the accused has not rebutted the presumption. Therefore, this revision case deserves dismissal and accordingly, the criminal revision case is dismissed. The judgment of the I Additional District Sessions Judge, Thoothukudi in Crl.A.No.90 of 2013 dated 01.02.2014 confirming the conviction and sentence passed by the Judicial Magistrate (Fast Track Court), Thoothukudi in C.C.No. 311 of 2012, dated 24.09.2013 is hereby confirmed. The trial Court is directed to secure the accused and confine him to prison to undergo the remaining period of imprisonment.
28.02.2020 Index : Yes/No Internet : Yes /No dsk http://www.judis.nic.in 28/30 Crl.R.C(MD)No.203 of 2014 To
1.I Additional District Sessions Judge, Thoothukudi
2.The Judicial Magistrate, (Fast Track Court), Thoothukudi.
3.The Section Officer(2 copies) V.R. Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 29/30 Crl.R.C(MD)No.203 of 2014 B.PUGALENDHI.J., dsk Crl.R.C(MD)No.203 of 2014 28.02.2020 http://www.judis.nic.in 30/30