Madras High Court
S.Mohammed Saleem vs M/S.City Optical Co on 28 June, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 28 / 06 / 2012
Coram
THE HON'BLE MR.JUSTICE C.S.KARNAN
Crl.R.C.No.1248 of 2009
S.Mohammed Saleem .. Petitioner
Vs.
M/s.City Optical Co.,
Represented by its Partner,
I, Zakir Alikhan, Aged 40 years,
S/o.Ismailkhan
having office at D.No.3,
Pookoodai Complex, Salem-9. .. Respondent
Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the judgment of the appellate Court in C.A.No.121 of 2006 on the file of the Principal Sessions Court, Salem, dated 22.04.2008 was confirmed the conviction and sentence of the trial Court, viz., the Judicial Magistrate Court-I, Salem in C.C.No.1056 of 2004, dated 13.09.2006 to call for the records and revise the judgments of the lower Court.
For Petitioner : Mr.C.Prakasam
For Respondent : Mr.M.Mohammed Riyaz
- - -
ORDER
The brief facts of the case are as follows:-
The respondent herein / complainant had initiated a case in C.C.No.1056 of 2004, on the file of Judicial Magistrate Court-I, Salem against the revision petitioner herein / accused stating that the accused had introduced one Salim, who is the proprietor of "Star Marketing Consultants", Chennai, regarding a business deal towards the supply of Raybon Sun Glasses, 6000 in numbers; towards this business transaction, as part payment, the complainant has paid a sum of Rs.8,10,000/- by way of demand draft to the said Salim. The said Salim had issued a receipt on 30.09.2003 under the assurance that the materials would be delivered on or before 10.01.2004.
2. As the materials were not supplied to the complainant, the accused being a guarantor to the said Salim had issued three cheques for a sum of Rs.5,00,000/-, Rs.3,00,000/- and Rs.50,000/- respectively. All the three cheques were presented by the complainant with his bankers viz., Indian Overseas bank, Salem and the cheques were returned with an endorsement of "insufficient funds". Thereafter, the complainant had observed all necessary formalities and filed the above case for punishing the accused under Section 138 of Negotiable Instruments Act.
3. On the side of the complainant, he had been examined as P.W.1 and he had marked 12 documents viz., Ex.P1- copy of demand draft for Rs.8,10,000/-, Ex.P2-cheque for a sum of Rs.5,00,000/-, Ex.P3-cheque for a sum of Rs.3,00,000/-, Ex.P4-cheque for a sum of Rs.50,000/-, Exs.P5 to P7-return memo, Ex.P8-debit advice, Ex.P9-lawyer's notice, Ex.P10-acknowledgment card, Ex.P11-reply notice and Ex.P12-company registration certificate. On the side of the accused, no witness was examined and Ex.R1 had been marked for payment of Rs.7,50,000/-.
4. P.W.1 had adduced evidence stating that he is the partner of the firm; that he knows the accused from his childhood; that the accused had introduced one Salim to him; that the said Salim had agreed to supply "Raybon Glasses", 6000 in numbers to his firm; that he had paid a sum of Rs.8,10,000/- to the said Salim; by way of demand draft; that after receipt of the demand draft, the said Salim had not supplied the said goods. Therefore, the accused, being a guarantor, had issued three cheques for a sum of Rs.5,00,000/- dated 23.02.2004, Rs.3,00,000/- dated 10.03.2004, Rs.50,000/- dated 20.02.2004. P.W.1 further stated that all the three cheques had been presented by him with his bankers viz., Indian Overseas Bank, Salem Branch but all the cheques were returned unpaid. The dishonoured cheques had been marked as Exs.P2, P3 and P4 and the demand draft had been marked as Ex.P1. The return memos were marked as Exs.P5, P6 and P7 and the debit advice was marked as Ex.P8. Advocate notice was marked as Ex.P9; acknowledgment card was marked as Ex.P10.
5. On considering the evidence of the complainant and on perusing the exhibits marked by both the parties and on hearing the arguments of the learned counsels on either side, the learned Magistrate has held that the accused had admitted that he had issued the cheques after duly signing it, as guarantor. Therefore, the learned Magistrate held the accused guilty of offence under Section 138 of Negotiable Instruments Act, and sentenced him to undergo simple imprisonment for one year and also imposed a fine of Rs.15,00,000/- in default, the accused was to undergo a further period of simple imprisonment for a period of two months.
6. Against the conviction and sentence passed in C.C.No.1056 of 2004, on the file of Judicial Magistrate Court-I, Salem, the appeal in C.A.No.121 of 2006 on the file of the Principal Sessions Court, Salem, had been filed by the accused. The learned judge, after hearing the arguments of the learned counsels on either side, and on perusing the impugned judgment of the trial Court, dismissed the appeal. The learned judge had observed that the accused had not denied the complainant's contention regarding the cheque dishonour. The accused had also filed M.P.No.302 of 2007, for additional documentary evidence. This petition was also dismissed.
7. Against the dismissal of the appeal in C.A.No.121 of 2006 on the file of the Principal Sessions Court, Salem, dated 22.04.2008, the above revision has been filed by the revision petitioner.
8. The learned counsel for the revision petitioner vehemently argued that the compensation amount of a sum of Rs.15,00,000/- had been awarded and simple imprisonment for a period of one year had been imposed on the accused, which is not sustainable in the instant case. The accused is a guarantor for one Salim. But actually the business transaction exists only between the complainant and the said Salim. The accused is in no way connected with the said business. Just because of the fault of introducing the said Salim to the complainant, the accused should not be punished, since he has not benefited in the said transaction and since there is no legally enforceable debt involved in this case.
9. The learned counsel for the complainant submits that the accused had introduced one Salim and had also revealed his business ability regarding "Raybon Sun Glasses". On believing the statements of the accused, the complainant had drawn a demand draft to and in favour of the said Salim for a sum of Rs.8,10,000/- for supply of 6000 numbers of "Raybon Sun Glasses". After receipt of the said demand draft, the said Salim had not supplied the said goods. For mode of payment, regarding the business transaction, the said Salim had also issued receipt to the complainant. Thereafter, the accused, being a guarantor, had agreed to pay the said amount to the complainant. In order to settle the said amount, the accused had issued three cheques, which had been duly signed by him and handed over to the complainant. The learned counsel for the complainant further submits that the accused had not denied the issuance of cheques and his signature affixed in it. Therefore, the case was proved against the accused after adducing evidence and after marking the relevant documents before the trial Court. The well considered judgment of the trial Court was confirmed by the Principal Sessions Judge, Salem. There is no irregularity or illegality committed by the Courts below, in their respective judgments. The learned counsel for the complainant further submitted that this Court imposed a condition on the accused to deposit a sum of Rs.2,00,000/-, but this has not been complied with by the accused.
10. The learned counsel for the complainant had marked the citations which are as follows in support of his contentions:-
(i) Alexander Vs. Joseph Chacko, Criminal Appeal No.719 of 1992 Negotiable Instruments Act, 1881 - Section 138. A cheque drawn by one person towards a debt or liability of another person - Dishonour of cheque. Whether the drawer of cheque can be held liable for offence under Section 138 of the Act? (Yes, it is immaterial that the cheque was issued for discharge of his own debt or liability or for another man's debt or liability).
Held: The section deals with a cheque drawn by a person "for the discharge, in whole or in part, of any debt or other liability." The section does not say that the cheque should have been drawn for the discharge of any debt or other liability of the drawer towards the payee. If the intention of the Parliament was otherwise the words "of any debt or other liability" would have been further qualified by adding the words "of the drawer". Even in Section 139 of the Act, by which a legal presumption is created Parliament has only fixed the presumption that the cheque was received "for the discharge, in whole or in part, of any debt or other liability". This means, the debt or other liability may be due from any person. It is not necessary that the debt or liability should be due from the drawer.
Result: Appeal allowed. Order of acquittal set aside. Case remitted tot he trial Court for disposal of the case afresh."
(ii) Vaidynathan etc., v. M/s.Dodla Dairy Limited etc., reported in 1991 L.W. (Crl.) 395 "Negotiable Instruments Act, Ss.138 and 141 - Description of the name of the accused as the Deepika Milk Marketing by proprietrix M/s.Revathi Vaidyanathan validity of complaint property concern does not come within the firm or company in S.141 - Prosecution against the drawer of the cheque - Maintainability - Proprietorship concern by itself if not a legal entity apart from its proprietor."
(iii) Sreelatha @ Roja, Y. Vs. Mukanchand Bothra reported in 2002 (1) CTC 530 Code of Criminal Procedure, 1973, Section 200, Negotiable Instruments Act, 1881, Section 138-
"Competency of power of attorney to file criminal complaint - Individual or corporate body can file criminal complaint through power of attorney - Court can adjudicate genuineness or validity of power of attorney if same is questioned - Complainant filed complaint under Section 138 of Negotiable Instruments Act through power of attorney and also examined himself as witness - Conviction by trial Court assailed on ground of invalid power of attorney sustained in appeal-
Negotiable Instruments Act, 1881, Section 138 and 7 -
"Payee - Name of payee and complainant differently spelled - Cheque issued by accused dishonoured not on ground of defect or difference in spelling of payee but on account of insufficiency of funds - Accused did not raise questions of spelling mistake even in reply notice - Complaint maintainable-"
Negotiable Instruments Act, 1881, Sections 139 and 118-
"Sections 118, 138 and 139 of Negotiable Instruments Act creates statutory presumption of liability of drawer of cheques for amount for which cheques are drawn - Courts shall raise such presumption where factual presumption is established - Presumption contemplated under Section 139 and 118 are distinguishable from presumption of fact - Once facts necessary for raising presumption is established Court has no option but to raise such presumption in favour of complainant and such presumption can be rebutted by accused-"
11. Per contra, the learned counsel for the accused submits that already the accused had suffered imprisonment in judicial custody for 7 months. The accused does not have the capacity to pay the said amount.
12. On verifying the entire facts and circumstances of the case and on arguments submitted by the learned counsels on either side and on perusing the judgments of the Courts below, this Court is of the considered view that the compensation which had been imposed on the accused i.e., a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only), is on the higher side. Besides, the punishment of simple imprisonment for one year imposed on the accused is also on the higher side. The accused had already suffered imprisonment for a period of seven months in judicial custody. Therefore, this Court is of the view that the punishment already undergone by the accused is adequate and hence waives the rest of the punishment and simple imprisonment imposed by the Courts below. This Court reduces the compensation payable to the accused from Rs.15,00,000/- (Rupees Fifteen Lakhs only) to Rs.1,00,000/- (Rupees One Lakh only), considering the financial position of the accused. In default of payment of the compensation awarded by this Court, i.e., a sum of Rs.1,00,000/- (Rupees One Lakh only) the accused would be sentenced to a further period of simple imprisonment for three months. Therefore, this Court directs the accused to pay the said compensation amount i.e., a sum of Rs.1,00,000/- into the credit of C.C.No.1056 of 2004, on the file of Judicial Magistrate Court-I, Salem, within a period of one month from the date of receipt of this order. If the accused fails to comply with this order, the learned Magistrate is directed to issue bailable warrant on the accused and secure him into judicial custody forthwith. This direction has been given by this Court after invoking the discretionary power vested with it.
13. Resultantly, the above criminal revision has been disposed of with the above modification. Consequently, the judgment and conviction passed in C.A.No.121 of 2006, on the file of the Principal Sessions Court, Salem, dated 22.04.2008, confirming the conviction and sentence passed in C.C.No.1056 of 2004, on the file of Judicial Magistrate Court-I, Salem dated 13.09.2006 is modified. Accordingly ordered.
/ 06 / 2012
r n s
Index : Yes / No.
Internet : Yes / No.
To
1. The Judicial Magistrate Court-I,
Salem.
2. The Principal Sessions Court,
Salem.
C.S.KARNAN, J
r n s
Pre-Delivery order made in
Crl.R.C.No.1248 of 2009
28 / 06 / 2012
Pre-Delivery order made in
Crl.R.C.No.1248 of 2009
To
THE HON'BLE MR.JUSTICE C.S.KARNAN
Most respectfully submitted
R.Narender.
P.A. to the Hon'ble Judges