Madras High Court
N.Balraj vs M.Ponnusamy on 31 October, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31 / 10 /2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.1041 of 2007 N.Balraj .. Petitioner Vs. M.Ponnusamy .. Respondent PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., to call fore the records and set-aside the order, confirming the sentence of two years rigorous imprisonment and also directed to pay Rs.5,00,000/- as compensation to the respondent / complainant herein passed by the learned Judicial Magistrate, Mettupalayam in C.C.No.459 of 2000, dated 28.03.2005, by the learned Additional District Sessions Judge, Fast Track Court-I, Coimbatore in Crl.A.No.155 of 2005, dated 26.06.2007. For Petitioner : Mr.N.Damodaran For Respondent : No appearance ******* O R D E R
The revision petitioner / appellant / accused has preferred the present revision in Crl.R.C.No.1041 of 2007, against the judgment made in C.A.No.155 of 2005, on the file of Additional District Sessions Judge, Fast Track Court-I, Coimbatore, confirming the judgment passed in C.C.No.459 of 2000, on the file of the learned Judicial Magistrate, Mettupalayam.
2. The respondent / complainant's case is as follows:-
The accused had borrowed a sum of Rs.5,00,000/- from the complainant on 05.08.1998 and executed a promissory note to this effect. In order to discharge the said debt, the accused had issued a cheque dated 18.09.2000, drawn on UCO Bank, Udagamandalam Branch, Nilgiris District, for a sum of Rs.5,00,000/- to and in favour of the complainant. When the complainant deposited the said cheque for encashment with his bankers, viz, Corporation Bank, Mettupalayam Branch, on 19.09.2000, it was returned unpaid with an endorsement of "account closed" on 29.09.2000. The complainant sent a lawyer's notice to the accused on 12.10.2000, which was received by the accused on 16.10.2000. The accused sent a reply notice dated 21.10.2000 making false allegations. The complainant sent a rejoinder on 08.11.2000 which was received by the accused on 09.11.2000. In spite of receipt of notice, the accused did not pay the cheque amount. Hence, the complainant had filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the Judicial Magistrate, Mettupalayam.
3. On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant's side, the complainant was examined as P.W.1 and 12 documents were marked as Exs.P1 to P12, viz., Ex.P1-promissory note dated 05.08.1998, Ex.P2-cheque dated 18.09.2000 for Rs.5,00,000/-, Ex.P3-deposit receipt for cheque dated 19.09.2000, Ex.P4-return memo dated 21.09.2000, Ex.P5-debit advice dated 29.09.2000, Exs.P6 and P7-copy of lawyer's notice dated 12.10.2000 and 13.10.2000, Exs.P8 and P9-acknowledgment cards, Ex.P10-reply notice dated 21.10.2000, Ex.P11-rejoinder letter of complainant dated 08.11.2000, Ex.P12-acknowledgment card. On the side of the accused, two witnesses were examined and one document was marked as Ex.R1, viz., letter written by R.W.2.
4. P.W.1, the complainant had adduced evidence that on 05.08.1998, the accused had borrowed a sum of Rs.5,00,000/- from him as loan and executed a promissory note to this effect (Ex.P1). Subsequently, the accused had neither paid any amount towards principal or interest. On 17.09.2000, the accused had issued a cheque dated 18.09.2000 for Rs.5,00,000/-, agreeing to pay the interest later. P.W.1 deposed that he deposited the said cheque (Ex.P2) for encashment with his bankers, viz, Corporation Bank, Mettupalayam Branch on 19.09.2000. The deposit challan issued by bank was marked as Ex.P3. The said cheque was returned unpaid with an endorsement of "account closed" on 29.09.2000 through return memo marked as Ex.P4. The debit advice issued by his bankers was marked as Ex.P5. P.W.1 deposed that he sent a lawyer's notice to the accused on 12.10.2000 (Ex.P6). As there was a typing error in the said notice and as the date of return of cheque was mentioned incorrectly as 21.09.2000 instead of 29.09.2000, he had sent another rectified lawyer's notice on 13.10.2007 (Ex.P7). The accused received both the notices on 16.10.2000 as per acknowledgment cards marked as Exs.P8 and P9. P.W.1 deposed that the accused sent a reply notice on 21.10.2000 (Ex.P10), for which, the complainant had sent a rejoinder on 08.11.2001to the counsel of accused and accused (Ex.P11). The accused received the rejoinder as per acknowledgment cards marked as Exs.P12 and P13. In spite of notice, the accused did not pay the cheque amount.
5. R.W.1. had adduced evidence denying the allegations of the complainant that he had received a loan of Rs.5,00,000/- and executed a promissory note and issued a cheque on 18.09.2000. R.W.1 adduced evidence that he had issued the cheque (Ex.P2) to one Sathishkumar (R.W.2) a financier as security and that it was given as a blank signed cheque. R.W.1 deposed that he had asked the complainant to produce the statement of accounts in his reply notice and that the complainant had replied that no account books had been maintained by him. R.W.1 further deposed that the said Sathishkumar would be aware of how the cheque got into the possession of the complainant as the said R.W.2 was the owner of the house, wherein he was the tenant. R.W.1 deposed that the complainant had got the cheque from R.W.2 and misused it to file a false case against him. He further deposed that the cheque had been returned on 21.09.2000 and the notice had not been sent within the statutory period. R.W.2, Sathishkumar had adduced evidence that he is acquainted with the accused in the course of business relations which existed between them. He deposed that the accused used to borrow money from him for his requirements. R.W.2 deposed that on one occasion, the accused had borrowed a sum of Rs.5,00,000/- from him and had given him a cheque and a promissory note. He deposed that a case had been filed against the accused and is pending in the Court at Ooty. R.W.2 deposed that he was aware of the fact that the accused had borrowed a sum of Rs.5,00,000/- from the complainant. R.W.2 deposed that if the accused pays the sum of Rs.5,00,000/- due to him, he would ask the complainant to withdraw the case filed by him against the accused. He deposed that as the accused had not paid him the amount due to him, he had not requested the complainant to withdraw the case. R.W.2 deposed that the said document marked as Ex.R1 is the letter written by him to the accused.
6. The learned Magistrate observed that the accused had admitted his signature in the exhibits marked as P1 and P2. Though it had been contended on the side of the accused that he had given blank signed promissory note and cheque to the said Sathishkumar in the year 1998, while borrowing a loan from him and that these transactions had been reflected in the income tax returns filed by him, the accused had not produced the relevant income tax records in court, to prove the said contentions. It is seen from evidence of R.W.2, that R.W.2 had categorically stated that the accused had separate transactions with both the complainant and R.W.2 and that these transactions are not interconnected. The learned Magistrate observed that R.W.2 had only promised the accused that he would request the complainant to withdraw the case filed against the accused and get him some more time for payment of his dues to the complainant, if the accused settled his dues to R.W.2. R.W.2 in his evidence had clearly stated that the accused had borrowed a sum of Rs.5,00,000/- from the complainant. Though it had been argued on the side of the accused that as per lawyer's notice marked as Ex.P6, the date of return of cheque had been mentioned as 21.09.2000 and as such, the statutory notice should have been sent within 15 days of return of cheque, whereas in the instant case, the statutary notice was sent only on 13.10.2000 and hence, the case is not maintainable. The learned Magistrate opined that though the cheque had been returned by UCO bank, Ooty on 21.09.2000, the intimation regarding return of cheque had been given to the complainant by his bankers viz., Corporation Bank, Mettupalayam, only on 29.09.2000. As such, the learned Magistrate, opined that the statutary notice has been served on time to the accused. It was contended on the side of the accused that the complainant had not produced his account books to prove the said advancement of loan to the accused. However, the learned Magistrate observed that such account books have to be produced only by registered firms and that there is no necessity for an individual to produce such books. To prove the advancement of loan, a promissory note to this effect alone would suffice. Hence, the learned Magistrate, after considering the oral and documentary evidence held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced the accused to undergo rigorous imprisonment for two years. The learned Magistrate further directed the accused to pay a compensation of a sum of Rs.5,00,000/- to the complainant.
7. Aggrieved by the sentence and compensation imposed by the trial Court, the accused has preferred an appeal in C.A.No.155 of 2005, before the Additional District Sessions Judge, Fast Track Court-I, Coimbatore. The learned judge after scrutiny of the oral and documentary evidence, dismissed the appeal and confirmed the order of the trial Court.
8. Aggrieved by the dismissal of his appeal, the appellant / accused has preferred the present revision.
9. The learned counsel for the revision petitioner has contended that the cheque in question as well as the pronote was given in bank, as collateral security to R.W.2, Sathishkumar, while obtaining a loan from him and there was no transaction with the respondent / complainant herein. It was pointed out that if the Courts below had properly looked into Ex.R1, it would have acquitted petitioner herein, since through Ex.R1, the R.W.2 Sathishkumar agreed to withdraw the complaint filed by the respondent / complainant herein, if the petitioner herein paid the due amount to him. It was pointed out that the lower appellate Court failed to note that while convicting the petitioner herein, the trial Court held that the petitioner herein did not produce any statements of account in connection with the income tax returns or did not take any effort to produce any witness on that aspect. Hence, the petitioner herein was forced to file two petitions under Section 391 and Section 91 of Cr.P.C. to produce the relevant documents as well as witnesses before the Court of law to prove his innocence as provided by law. But, without considering the merits and genuinety of the petitioner herein, the lower appellate Court, erroneously failed to note the importance of the petitions filed under Section 391 and 91 of Cr.P.C and dismissed those petitions mechanically. It was also pointed out that the statutory notice was not sent within the prescribed time and as such, the complaint itself was not maintainable.
10. The learned counsel for the revision petitioner vehemently argued that the accused had never received a sum of Rs.5,00,000/- from the complainant as alleged by him and also denied the execution of pronote which had been said to have been executed by him. The accused is an auditor and possessed valuable property at Connoor. The learned counsel for the revision petitioner has cited the following judgments in support of his contentions:-
(i) Shri Taher N. Khambati v. M/s.Vinayak reported in 1995 CRI L.J.560 "Negotiable Instruments Act (26 of 1881) S.138-Dishonour of cheque complainant Creditor advancing certain sum and obtaining a signed blank cheque from debtors with a view to make use of it, as a threat for realization of amount Cheque cannot be said to be issued voluntarily for discharge of debt or legal liability Provisions of S.138, not attracted. Negotiable Instruments Dishonour of cheque complainant creditor advancing certain sum to debtor and obtain a signed blank cheque with a view to make use of it, for realisation of amount Cheque not issued voluntarily for discharge of debt Provisions of S.138 not attracted."
(ii) Kamalammal v. C.K.Mohanan reported in 2007 CRI.L.J.3124 "(A) Negotiable Instruments Act (26 of 1881) Ss.138, 139 Dishonour of cheque presumption under Section 139 When available S.139 applies only if "cheque" is established to be of nature stated in S.138 Court cannot presume that cheque is "issued / executed / drawn" by accused Issuance of blank cheque cannot give rise to presumption that implied authority is given to holder of cheque to fill it up towards discharge of debt etc."
(iii) Krishna Janardhan Bhat v. Dattatraya G.Hegde reported in (2008) 4 SCC 54 "A. Negotiable Instruments Act, 1881 S.139 Presumption under Scope of - Held, S.139 merely raises a presumption in favour of holder of cheque that the said cheque has been issued for discharge of any debt or other liability Existence of legally recoverable debt is not a matter of presumption under Section 139."
(iv) Kumar Exports v. Sharma Carpets reported in (2009) 1 SCC (Cri) 823 "A. Negotiable Instruments Act, 1881 Ss.139 and 138 Presumption that cheque was issued in discharge of debt or liability Presumption how to be displaced Declaration made by the complainant himself to the Sales Tax Department that no sale had taken place Accepted as a valid proof that cheques were not issued by accused in discharge of any debt or liability to complainant Accused therefore by producing this evidence, held to have displaced the presumption under S.139 and therefore offence under Section 138 not proved against accused."
11. The learned counsel for the revision petitioner had sent a notice to the complainant by R.P.A.D. and the same was served on him. To that effect, proof of service has also been filed. Therefore, this court passes the final order.
12. On verifying the facts and circumstances of the case and arguments advanced by the learned counsel for the revision petitioner and on perusing the impugned judgments of the Courts below, this Court does not find any discrepancy in the conclusions arrived at for convicting the accused. However, the sentence of two years rigorous imprisonment imposed on the accused is on the higher side. Therefore, this Court reduces the period of imprisonment from two years rigorous imprisonment to three months simple imprisonment. The compensation amount of a sum of Rs.5,00,000/- (Rupees Five Lakhs only) awarded by the lower Court is also on the higher side. Therefore, this Court modifies the compensation from a sum of Rs.5,00,000/- to Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand only), as it is found to be appropriate in the instant case. The accused has to either pay the compensation of a sum of Rs.2,50,000/- or to undergo three months simple imprisonment. This Court directs the learned Judicial Magistrate, Mettupalayam, to issue bailable warrant and secure the accused into judicial custody forthwith, in order to undergo three months simple imprisonment. If the accused remits the said compensation amount of a sum of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand only) into the credit of C.C.No.459 of 2000, on the file of the learned Judicial Magistrate, Mettupalayam before being remanded into judicial custody, the accused would be set at liberty and the sentence of simple imprisonment for three months imposed on the accused would not be operated upon any further. If the accused deposits the said amount, it is open to the complainant to withdraw the same after filing a Memo before the trial Court. This order has been passed by this Court after invoking the discretionary power vested with it.
13. Resultantly, the above revision is partly allowed with the above modifications. Consequently, the conviction and judgment passed in C.A.No.155 of 2005, on the file of Additional District Sessions Judge, Fast Track Court-I, Coimbatore, dated 26.06.2007, confirming the judgment made in C.C.No.459 of 2000, on the file of the learned Judicial Magistrate, Mettupalayam dated 28.03.2005 is modified. Accordingly ordered.
r n s To
1. The Judicial Magistrate, Mettupalayam.
2. The Additional District Sessions Judge, Fast Track Court-I, Coimbatore