Madras High Court
S.Swarna vs S.Mukanchand Bothra on 29 April, 2011
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.Nos.807 of 2005 and 556 of 2006 & Crl.M.P.No.3383 of 2006 S.Swarna .. Petitioner in Crl.R.C.No.556 of 2006 Vs. S.Mukanchand Bothra .. Respondent in Crl.R.C.No.556 of 2006 S.Mukanchand Bothra .. Petitioner in Crl.R.C.No.807 of 2005 Vs. S.Swarna .. Respondent in Crl.R.C.No.807 of 2005 Criminal Revision Case No.556 of 2006 filed against the judgment dated 10.5.2006 in Crl.A.No.83 of 2005 on the file of the Additional District and Sessions Court-Fast Track Court No.III, Chennai, against the order dated 1.3.2005 in C.C.No.3847 of 2004 on the file of the 4th Metropolitan Magistrate, Saidapet, Chennai. Criminal Revision Case No.807 of 2005 filed to set aside the judgment on the file of 4th Metropolitan Magistrate, Chennai, dated 1.3.2005 in C.C.No.3847 of 2004 insofar as it relates to the enhancement of the sentence and compensation. For petitioner in Crl.R.C.No.556 of 2006 : Mr.C.V.Kumar For respondent in Crl.R.C.No.556 of 2006 : Mr.S.Mukanchand Bothra, Party-in-person For petitioner in Crl.R.C.No.807 of 2005 : Mr.S.Mukanchand Bothra, Party-in-person For respondent in Crl.R.C.No.807 of 2005 : Service awaited ORDER
For the purpose of convenience, the parties are referred as they are ranked in the trial Court.
2. Crl.R.C.No.556 of 2006 is filed against the judgment dated 10.5.2006 in Crl.A.No.83 of 2005 on the file of the Additional District and Sessions Court-Fast Track Court No.III, Chennai, against the order dated 1.3.2005 in C.C.No.3847 of 2004 on the file of the 4th Metropolitan Magistrate, Saidapet, Chennai.
3. Before the trial Court in C.C.No.3847 of 2004, by order dated 1.3.2005, the accused was convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo six months' simple imprisonment, and to pay Rs.5,000/- as fine , in default, to undergo one month simple imprisonment.
4. Before the first appellate Court in Crl.A.No.83 of 2005, by judgment dated 10.5.2006, the sentence was modified to three months' simple imprisonment and the amount of Rs.2,00,000/- deposited before the trial Court by the accused was allowed to be withdrawn by the complainant and the balance amount of Rs.2,85,000/- was directed to be paid by the accused before the trial Court within two months from the date of judgment of the appellate Court, and upon such payment, the complainant was entitled to withdraw the said sum of Rs.2,85,000/- and the fine of Rs.5,000/- deposited by the accused, was appropriated to the cost of the proceedings.
5. Crl.R.C.No.807 of 2005 is filed by the complainant, for enhancement of the punishment.
6. The case of the complainant is as follows:
On 21.3.1996, the accused borrowed Rs.2 lakh from the complainant and executed Exs.P-4 and P-5 promissory notes and gave a letter of undertaking on the same day under Ex.P-6 to repay the same within three months. The accused further borrowed Rs.3 lakhs from the complainant on 10.10.1996 and executed Ex.P-7 promissory note and to discharge the same, she issued Ex.P-1 cheque dated 3.2.1997, which was presented and the same returned as per Ex.P-2 dated 4.2.1997 and the accused has not arranged for payment and the statement of accounts shows that she has not got sufficient funds to honour the cheque. Hence, the complainant issued statutory notice and the postal receipt is Ex.P-8 and the return notice is Ex.P-9. Since the accused has refused to receive the notice, the complainant preferred a private complaint under Section 138 of the Negotiable Instruments Act.
7. The trial Court, after considering the oral and documentary evidence, i.e. P.Ws.1 and 2 and Exs.P-1 to P-10, found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced as stated above, against which, she preferred appeal before the appellate Court, which modified the sentence with directions, as stated above, against which, the accused preferred Crl.R.C.No.556 of 2006 and the complainant has preferred Crl.R.C.No.807 of 2006 for enhancement of the punishment.
8. Learned counsel appearing for the accused submitted that no statutory notice has been received by the accused. To prove that the amounts mentioned in Exs.P-4, 5 and 7 have been paid, the complainant has not filed any document and so, the blank cheque alone has been issued and hence, both the Courts below have not considered this aspect in proper perspective. He further submitted that if at all the Court comes to the conclusion that the accused is guilty of the offence under Section 138 of the Negotiable Instruments Act, instead of sentencing the accused, she may be directed to pay compensation to the complainant. To substantiate his contentions, he relied on the decisions of the Apex Court and this Court.
9. Repudiating the said contentions, the complainant himself personally appeared and advanced his argument, stating that the accused has borrowed money as per Exs.P-4 and 5 and she has also given a letter of undertaking under Ex.P-6 and Ex.P-7 has also been executed subsequently and for discharging the same, Ex.P-1 has been issued. Even though notice has been issued, the accused refused to receive the same and so, the refusal of notice is deemed to be sufficient service of notice and so, the first appellate Court considered these aspects and came to the correct conclusion. The complainant-in-person further submitted that the accused is in the habit of borrowing money and issuing cheque and she has been facing 15 cases under Section 138 of the Negotiable Instruments Act and so, no leniency could be shown, because, she dragged on the proceedings from 1997 till now, i.e.2011 and hence, he prayed for enhancing the sentence and for confirming the conviction under Section 138 of the Negotiable Instruments Act.
10. Now, this Court has to consider as to whether both the Courts below are correct in holding the accused guilty of the offence under Section 138 of the Negotiable Instruments Act.
11. The issuance of the cheque and promissory notices are admitted. In such circumstances, the complainant is entitled to invoke the presumption under Sections 118 and 139 of the Negotiable Instruments Act. It is a rebuttable presumption. It is true that the defence can be proved based on "preponderance of probabilities" and not "beyond reasonable doubt". It can be proved on the basis of the oral and documentary evidence let in by the complainant.
12. At this juncture, it is appropriate on the part of this Court to consider the evidence of P.W.1 and P.W.2 /complainant and Exs.P-1 to P-10, which have clearly proved that the cheque has been issued only for discharging the existing liability. Exs.P-4 to 7 clearly proved that she has borrowed money and for discharging the same, she has not filed any document. But, on 3.2.1997 for discharging Exs.P-4,5 and 7, she issued cheque Ex.P-1, and so, I am of the view that the complainant has proved that Ex.P-1 has been issued only to discharge the legally enforceable debt. So, both the Courts below are correct in holding that the accused is guilty of the offence under Section 138 of the Negotiable Instruments Act.
13. Learned counsel appearing for the accused relied upon the judgment of this Court reported in CDJ 2011 MHC 379 (P.Gnanambigai Vs. S.Krishnasamy and another), wherein, this Court held as follows:
"10. The well settled legal position, which is reiterated in the recent larger bench judgment of Supreme Court reported in 2010 (4) CTC 118 in Rangappa V. Sri Mohan is that when an accused has to rebut the presumption under section 139 the standard of proof for doing so, is that of preponderance of probabilities and if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. It is further observed in the same judgment that the accused can rely on the materials submitted by the complainant in order to raise such a defence. It is also observed by the Supreme Court in the earlier judgment reported in 2008 (1) CTC 433 in Krishna Janardhan Bhat V. Dattatraya G.Hedge that the court must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the N.I. Act, the same may not lead to injustice or mistaken conviction and the accused for discharging the burden of proof placed upon him under the statute need not examine himself and he can discharge his burden on the basis of the materials already brought on records and the accused has a constitutional right to maintain silence and standard of proof on the part of the accused and that of the prosecution in a criminal case is different. It is also observed by the Supreme Court that the presumption of innocence as a human right and the doctrine of Reserve Burden introduced under section 139 should be delicately balanced and such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to the legal principles governing the same. The test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose on evidentiary burden and not a persuasive burden."
14. It is true that the presumption under Sections 118 and 139 of the Negotiable Instruments Act, is rebuttable and the defence can be proved based on preponderance of probabilities and it can be proved on the basis of the oral and documentary evidence let in by the complainant. While considering the abovesaid judgment of this Court, wherein this Court relied on the judgment of the Apex Court reported in 2010 (4) CTC 118 (Rangappa Vs. Sri Mohan), along with the facts of the present case, P.Ws.1 and 2 and Exs.P-4 to 7 have clearly proved that Ex.P-1 cheque has been issued only for discharging the legally enforceable debt.
15. Learned counsel appearing for the accused further submitted that no notice has been issued, but the above argument does not merit acceptance, because, while perusing Ex.P-9, it is clearly proved that the notice has been issued in the correct address, and the notice was refused by the accused. In such circumstances, I am of the view that the said notice is deemed to have been served on the accused, and so, there is a valid statutory notice issued to the accused, and hence, both the Courts below came to the correct conclusion that there is a valid notice issued under Section 138 of the Negotiable Instruments Act. So, I am of the view that both the Courts below are correct in holding that the accused is guilty of the offence under Section 138 of the Negotiable Instruments Act.
16. Now, this Court has to consider the quantum of sentence. Learned counsel appearing for the accused stated that instead of sending the accused to jail, she can be directed to pay compensation, i.e. the cheque amount including the amounts borrowed under the Promissory Notes, which will meet out the ends of justice. To substantiate his argument, learned counsel appearing for the accused relied upon the following decisions:
(a) CDJ 2010 SC 475 (Supreme Court) (K.A.Abbas H.S.A. and another Vs. Sabu Joseph and others):
"The High Court has modified the sentence imposed on the accused to the extent, that, if the petitioner pays the compensation amount of Rs.4 lakhs (keeping in mind that the petitioner had deposited an amount of Rs.1 lakh before the trial Court towards the compensation amount) within a period of five months, then he needs to undergo imprisonment only till the rising of the court and if the petitioner commits default in making the payment aforesaid, he shall undergo simple imprisonment for three months by way of default sentence."
(b) CDJ 2009 MHC 2127 (Madras High Court) (S.R.Gunasekaran Versus G.Sampoornam):
"21. Considering the facts and circumstances, to meet the ends of justice, I find it reasonable directing the petitioner/accused to deposit the balance of cheque amount of Rs.50,000/- (Rupees fifty thousand only) within 45 days from the date of receipt of a copy of this order, as a condition precedent for allowing the revision. If the amount is so deposited, the respondent will be entitled to file a petition before the trial court to withdraw the same. If the aforesaid condition is not complied with by the petitioner/accused, the revision petition will be deemed to be dismissed, confirming the Judgment rendered by the court below and the trial court shall secure the petitioner/accused to undergo the remaining period of sentence, pursuant to the Judgment passed by the court below, according to law."
(c) 2011 (1) TLNJ 331 (Criminal) (Madurai Bench of Madras High Court) (V.Deivanayagam Vs. K.Saravanan):
"8. In the result, the revision petition is modified, so far as the sentence is concerned and accordingly, the revision petitioner/accused is directed to pay a fine of Rs.1,00,000/- (Rupees one lakh only) in addition to the fine amount already paid and the same shall be paid as compensation to the respondent/complainant, instead of the sentence for a period of one year S.I., imposed by the Court below. The fine amount shall be paid before the Court below within six weeks from the date of receipt of a copy of this order. If the fine amount is not paid and the conditional order is not complied with, the petitioner/accused shall undergo the sentence already imposed by the Court below."
17. The complainant-in-person relied upon the decision rendered by this Court in Crl.A.No.261 of 2000 and Crl.R.C.No.736 of 1999 and Crl.M.P.No.6440 of 2000, dated 25.1.2002, { (2002) RD-TN 16} (Y.Sreelatha @ Roja Vs. Mukanchand Bothra), wherein, this Court observed as follows:
"71. It is noticed that the fine of Rs.5,000/- has already been paid in the trial Court. Therefore, the appellant/accused is directed to deposit the balance fine amount, namely Rs.3,95,000/- in the trial Court within four weeks from today, in default, the accused will undergo rigorous imprisonment for one year. After such deposit, the trial Court is directed to pay the entire cheque amount of Rs.2 Lakhs to the complainant.
72. With the above observation, the revision filed by the petitioner/complainant is liable to be allowed.
73. In the result, the Criminal Appeal and Crl.M.P.No.6440 of 2000 filed by the appellant/accused are dismissed and the Criminal Revision Case filed by the petitioner/appellant is allowed."
18. The above decisions relied on by learned counsel for the accused, are not applicable to the facts of the present case, because, in this case, the first appellate Court has considered the sentence of imprisonment and reduced the same from six months to three months' simple imprisonment and directed the accused to deposit the amount. Admittedly, at that time, the sentence of imprisonment was suspended by the appellate Court and the accused was directed to deposit the amount of Rs.2 lakhs, which was deposited before the trial Court and then only, she was directed to be enlarged on bail. In the judgment of the first appellate Court, it was observed as follows:
"11. In the result, this Criminal Appeal is dismissed and the Judgment passed by the IVth Metropolitan Magistrate, Saidapet, Chennai, dt.1.3.2005 in C.C.No.3847/2004 is confirmed, but modified as follows:-
So far, the imposition of sentence is concerned, the sentence of 6 months Simple Imprisonment is hereby modified to that of 3 months simple imprisonment. The amount of Rs.2,00,000/- deposited before the trial Court by the Appellant/Accused is allowed to be withdrawn by the respondent/complainant. With this modification of the sentence portion of the trial court, the complainant/Respondent is entitled to get back the amount mentioned in the cheque and therefore, the balance amount of Rs.2,85,000/- is directed to be paid by the Appellant/Accused before the trial Court within 2 months from this date, and upon such payment, the respondent/complainant is entitled to withdraw the said sum of Rs.2,85,000/-. The fine amount of Rs.5,000/- deposited by the Accused/Appellant is appropriated to the cost of the proceedings."
19. In the abovesaid judgment of the first appellate Court, two months' time has been granted to the accused to deposit the balance amount of Rs.2,85,000/- and the judgment of the first appellate Court is dated 10.5.2006, but she has not paid the amount till today. In such circumstances, the accused is not entitled to any leniency.
20. As already stated, the cheque issued is dated 3.2.1997 and the accused has not paid the amount, even though the judgment of the first appellate Court was rendered on 10.5.2006. Furthermore, she has been facing so many cases in the same nature of Section 138 of the Negotiable Instruments Act, which shows that she is in the habit of borrowing money and issuing cheque and not made arrangements for honouring the cheque, which resulted in initiation of criminal proceedings under Section 138 of the Negotiable Instruments Act. In such circumstances, the conduct of the accused clearly proved that she is not entitled to any leniency in the sentence imposed.
21. At this juncture, it is appropriate to consider the argument advanced by the complainant-in-person that the sentence imposed by the first appellate Court is not sufficient to meet out the ends of justice, because, she has been in the habit of borrowing money and issuing cheque, but the cheque(s) were dishonoured and she has been facing so many criminal cases under Section 138 of the Negotiable Instruments Act and so, to teach a lesson to her, the imprisonment has to be enhanced from three months to six months' simple imprisonment as imposed by the trial Court.
22. I do not find any merits in the said contention of the complainant, because, even though the trial Court has sentenced the accused to six months' simple imprisonment, and imposed fine of Rs.5,000/-, at the time of appeal before the first appellate Court, even though the sentence was reduced to three months' simple imprisonment, the first appellate Court directed the accused to deposit further Rs.2,85,000/- being the balance amount in respect of the cheque amount, i.e. already Rs.2,00,000/- was deposited before the trial Court, i.e. in total, Rs.4,85,000/- being the cheque (Ex.P-1) amount, was directed to be deposited and the complainant was permitted to withdraw Rs.4,85,000/-, i.e. the cheque amount.
23. In such circumstances, to meet out the ends of justice, the complainant is permitted to withdraw Rs.2 lakhs already deposited before the trial Court and the accused is hereby directed to deposit the balance amount of Rs.2,85,000/- within two months from today, failing which, she shall undergo one month simple imprisonment.
24. In the result:
(a) The conviction and sentence passed by the first appellate Court under Section 138 of the Negotiable Instruments Act, are confirmed.
(b) Since the accused is on bail, the trial Court is directed to take steps to secure her custody to undergo the remaining period of sentence, if any.
(c) The complainant shall withdraw Rs.2 lakhs already deposited before trial Court.
(d) The accused is hereby directed to deposit the balance amount of Rs.2,85,000/- within two months from today, failing which, she shall undergo one month simple imprisonment.
(e) On such deposit of Rs.2,85,000/- by the accused, the complainant is also permitted to withdraw the same.
(f) Both the Crl.R.Cs. are accordingly dismissed. Crl.M.P. is closed.
29.04.2011 Index: Yes Internet: Yes cs To
1. The Additional District and Sessions Judge, Fast Track Court No.3, Chennai.
2. The 4th Metropolitan Magistrate, Saidapet, Chennai.
3. The Record Keeper, Criminal Section, High Court, Madras.
R.MALA,J cs Judgment in Crl.R.C.No.807 of 2005 and 556 of 2006 29.04.2011