Madras High Court
M/S.K.G.Mills (A Unit Of Kadri Mills ... vs M/S.Sangeetha Exports on 4 June, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 04.06.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.1109 of 2006 M/s.K.G.Mills (A Unit of Kadri Mills (CBE) Ltd.,) Rep. by M.Subramaniam, Having its Registered Office at Trichy Road, Ondipudur, Coimbatore - 641 016. .. Petitioner Vs. 1.M/s.Sangeetha Exports, Rep. by its Partner R.Kulandaivelu, L.223A, Kootapalli Colony, Tiruchengode, Namakkal District. 2.R.Kulandaivelu .. Respondents Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the order dated 28.07.2005, passed in Crl.A.No.362 of 2004, on the file of Additional District and Sessions Judge, Fast Track Court-III, Coimbatore varying the punishment given in the judgment dated 13.07.2004, passed in C.C.No.380 of 2000, on the file of Judicial Magistrate Court-V, Coimbatore. For Petitioner : Mr.K.Vijayakumar For Respondents : No appearance - - - ORDER
The revision petitioner herein / complainant has preferred the criminal revision in Crl.R.C.No.1109 of 2006, against the judgment made in Crl.A.No.362 of 2004, on the file of Additional District and Sessions Judge, Fast Track Court-III, Coimbatore, modifying the judgment of sentence and fine passed in C.C.No.380 of 2000, on the file of Judicial Magistrate Court-V, Coimbatore and has prayed for enhancement of punishment and fine imposed on the accused.
2. The complainant's case is as follows:-
The accused 2 and 3 are partners in the first accused firm. The accused 2 and 3 have purchased cotton yarn from the complainant, who runs a cotton yarn mill. In order to settle the amount of Rs.3,34,600/- for purchase of cotton yarn, the accused had issued four cheques to the complainant viz., cheque for Rs.88,200/-, dated 14.02.2000, cheque for Rs.84,001/-, dated 14.02.2000, cheque for Rs.84,000/-, dated 15.02.2000 and cheque for Rs.78,400/- dated 15.02.2000, drawn on Federal Bank, Erode Branch, to and in favour of the complainant. The complainant presented the said cheques with his bankers viz., Bank of India, Oppanakara Branch, Coimbatore, but the said cheques were returned unpaid on 23.02.2000 due to insufficient funds. The complainant issued lawyer's notice to the accused on 02.03.2000, which was received by the second accused on 06.03.2000. The notices sent to the first and third accused were returned undelivered. In spite of receipt of notice, the accused had not paid the said cheque amount. Hence, the complaint was filed against the accused for the offence under Section 138 of Negotiable Instruments Act before the Judicial Magistrate-V, Coimbatore. The accused pleaded not guilty before the trial Court and hence trial was conducted.
3. On the complainant's side two witnesses were examined and twelve documents were marked as Exs.P1 to P12, viz., Ex.P1-authorization letter marked by P.W.1, dated 24.02.1996, Ex.P2-copy of invoices (8 in numbers), Ex.P3-cheque for Rs.84,000/-, dated 15.02.2000, Ex.P4-cheque for Rs.78,400/- dated 15.02.2000, Ex.P5-return memo dated 21.02.2000, Ex.P6-return memo dated 21.02.2000, Ex.P7-copy of lawyer's notice dated 02.03.2000, Ex.P8-acknowledgment card, Exs.P9 and P10-returned covers ,Exs.P11 and P12-statement of account. On the accused side, the second accused R.Kulandaivelu was examined as R.W.1 and no documents were marked.
4. The accountant in the complainant's firm, Subramani, the power of attorney holder of the complainant, was examined as P.W.1. P.W.1 had adduced evidence that he has been authorized by the complainant herein to represent the case and has marked the authorization letter as Ex.P1; that four cheques had been issued by the accused for settlement of purchase of yarn and that the copy of the 8 invoices for this amount had been marked as Ex.P2; that the present complaint had been preferred for dishonour of two cheques each dated 15.02.2000, for an amount of R.84,000/- and Rs.78,400/- drawn on Federal Bank, Erode Branch and that these have been marked as Exs.P3 and P4; that when the said cheques were presented for encashment with the complainant's bankers viz., Bank of India, Oppanakara Branch, Coimbatore, it were returned with the endorsement of "insufficient funds" in the account of accused on 21.02.2000 through return memos marked as Exs.P5 and P6; that the complainant had then issued a lawyer's notice to the accused on 02.03.2000, a copy of which had been marked as Ex.P7; that the notice sent to the accused No.1 and 3 were returned and the copy of returned covers had been marked as Exs.P9 and P10; that the acknowledgment card for receipt of notice by the second accused was marked as Ex.P8; that the bank account statement of the complainant was marked as Ex.P11.
5. The Senior Manager of Federal Bank, Erode was examined as P.W.2. P.W.2 had adduced evidence that the accused had a current account in their firm; that the account number is 6239; that the said cheques were returned unpaid on 21.02.2000 due to insufficient funds in the account of accused; that the bank account statement of accused has been marked as Ex.P12.
6. The second accused, Kulandaivelu was examined as R.W.1. R.W.1. had adduced evidence that the first accused firm is a partnership firm; that he and the third accused are partners in the said firm; that one Rajasekaran was the Depot-in-charge of the complainant's company and that one Manickam was the agent in the complainant's company; that it is the practice to register orders for supply of materials to the said Rajasekaran and Manickam; that at the time of registering orders, blank unfilled cheques were collected from them and that he used to only affix his signature in the said cheques; that he had given these cheques to the said Manickam; that he had not received the goods ordered by him; that the said cheques had not been given for discharge of any legally enforceable debt; that he is not liable to pay any amount to the complainant herein.
7. It was contended on the side of the accused that there is no documentary proof of delivery of goods, allegedly supplied by the complainant as per invoices marked as Ex.P2. It was also argued that even in the invoices, the accused have not affixed their signature for acknowledgment of the said delivery of goods. But the learned Magistrate opined that the accused had not sent reply notice to the notice sent by the complainant. Further, the learned Magistrate was of the view that if the accused had not really received the materials, as alleged by them, they could have sent a reply notice stating that they are not liable to make payments towards the invoices cited as the goods pertaining to the invoices had not been supplied. However, as the accused had not done this, the learned Magistrate opined that the contentions alleged by the accused had been made as an afterthought, at the time of trial.
8. It was also contended on the side of the accused that the accused 2 and 3 are not responsible for the conduct of day to day affairs of the company and as no documents had been marked on the side of the complainant to show that they are partners in the said firm, the accused should be discharged from the criminal proceedings.
9. The learned Magistrate, on considering the evidence given by R.W.1 opined that the second accused had signed in the said cheques and he had also stated in his evidence that he is one of the partners of the first accused firm. However, the learned Magistrate, on considering that the third accused had not signed in the said cheques and also considering that no documentary proof had been furnished on the complainant's side to show that he was responsible for the conduct of day to day affairs of business of the company, acquitted him and discharged him from the criminal proceedings. The learned Magistrate, on considering that the second accused had also not taken any steps to examine the said Manickam to prove his allegation that the said Manickam had not returned the cheques signed by him even after non-delivery of goods and after considering the oral and documentary evidence held the first and second accused guilty of offence under Section 138 of Negotiable Instruments Act and imposed a fine of Rs.2,000/- on the first accused firm payable by the second accused and also imposed a sentence of simple imprisonment of four months on the second accused and to pay a fine of Rs.3,000/- in default of payment of fine, the second accused was to undergo further period of simple imprisonment for one month.
10. Aggrieved by the said sentence and conviction imposed by the trial Court, the accused have filed a criminal appeal in Crl.A.No.362 of 2004, before the Additional District and Sessions Judge, Fast Track Court-III, Coimbatore. The learned judge, after careful scrutiny of trial Court's judgment of conviction and sentence, dismissed the appeal, but exonerated the second appellant of simple imprisonment for a period of four months. The learned judge also confirmed the imposition of fine of Rs.3,000/- on the second appellant and in default of payment of fine, he was to undergo simple imprisonment for a period of one month.
11. Not being satisfied with the judgment of conviction and sentence imposed by the Courts below, the revision petitioner herein / complainant has preferred the present revision.
12. The learned counsel for the revision petitioner has argued that the learned Judicial Magistrate after having found that the respondents/accused have committed the offence under Section 138 of Negotiable Instruments Act has erred in law in awarding only a lesser punishment without assigning any reason or justification for doing so. It was also pointed out that the lower appellate Court erred in law in varying the sentence imposed by the trial Court after having dismissed the appeal, and as such the appellate Court has exceeded its power in varying the sentence. It was also argued that the lower appellate Court had not given any justifiable reason for reducing the sentence. As such, it was pointed out that the Courts below, after finding the accused guilty of offence under Section 138 of Negotiable Instruments Act, ought to have awarded the maximum punishment and also imposed a fine amount equal to twice of the cheque amount.
13. The revision has been filed in the year 2006. Therefore, this Court decides to pass final orders on the basis of available materials. On considering the judgments passed by the Courts below and on hearing the arguments of the learned counsel for the revision petitioner, this Court is of the considered view that the complainant has proved his case before the Courts below. The learned appellate judge had exonerated the sentence of four months simple imprisonment imposed on the second accused, which is not appropriate, since the complainant had proved his case against the accused. Therefore, this Court restores the sentence of conviction of four months simple imprisonment passed by the Judicial Magistrate-V, Coimbatore. Besides this, the complainant is entitled to get compensation. Hence, this Court awards a compensation of a sum of Rs.1,62,400/- (Rupees One Lakh Sixty Two Thousand and Four Hundred only) to the complainant payable by the accused, as it is found to be appropriate in the instant case. Originally, the case was filed in the year 2000. Therefore, this Court directs the learned Judicial Magistrate-V, Coimbatore to issue bailable warrant on the second accused, viz., Mr.R.Kulandaivelu and secure him into judicial custody forthwith. If the accused pays the compensation amount, as per this Court order, into the credit of C.C.No.380 of 2000, on the file of Judicial Magistrate Court-V, Coimbatore, before being remanded into judicial custody, he would be set at liberty, and this Court order would not be operated any further. If the accused pays the said compensation amount into 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 after invoking the discretionary power vested with it.
14. Resultantly, the above revision is allowed with the above modifications, and the judgment and conviction passed in Crl.A.No.362 of 2004, on the file of Additional District and Sessions Judge, Fast Track Court-III, Coimbatore, dated 28.07.2005, modifying the conviction and sentence passed in C.C.No.380 of 2000, on the file of Judicial Magistrate Court-V, Coimbatore, dated 13.07.2004 is rectified. Accordingly ordered.
04.06.2012
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r n s
Index : Yes / No.
Internet : Yes / No.
C.S.KARNAN, J
r n s
To
1. The Judicial Magistrate Court-V,
Coimbatore.
2. The Additional District and Sessions Judge,
Fast Track Court-III, Coimbatore.
Crl.R.C.No.1109 of 2006
04.06.2012
(1/2)