Madras High Court
Ramasubbu vs R.Muthulakshmi Ammal Ammal on 2 March, 2015
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.03.2015 CORAM THE HON'BLE MR.JUSTICE M.SATHYANARAYANAN Criminal Appeal (MD)Nos.298 of 2005 and 299 of 2005 Ramasubbu : Appellant/Respondent/Complainant in both Crl.Apls Vs. R.Muthulakshmi Ammal Ammal : Respondent/Appellant/Accused in both Crl.Apls. Prayer: Criminal Appeals are filed under Section 378 of Code of Criminal Procedure praying to call for the records relating to the orders of acquittal dated 25.02.2005 of the Additional District and Sessions Judge, Fast Track Court No.II, Madurai in C.A.Nos.196 and 197 of 2001 reversing the orders of conviction in CC.No.633 and 634 of 1998 dated 01.08.2001 of the Judicial Magistrate No.II, Madurai and set aside the same and allow the appeals as prayed for and pass such further or other orders as this Hon'ble Court deems it fit and proper. !For Appellant : Mr.R.Sundar Srinivasan ^For Respondent : Mrs.M.M.E.Philips Legal Aid Counsel :COMMON JUDGMENT
Criminal Appeal No.298 of 2005 arises out of an order of acquittal in C.A.No.197 of 2001 on the file of the Additional District and Sessions Judge cum Fast Track Court-II, Madurai which reversed the order of conviction in C.C.No.634 of 1998 on the file of the Judicial Magistrate No.II, Madurai. Similarly, Criminal Appeal No.299 of 2005 arises out of an order of acquittal in C.A.No.196 of 2001 on the file of the Additional District and Sessions Judge cum Fast Track Court-II, Madurai, which reversed the order of conviction in C.C.No.633 of 1998, on the file of the Judicial Magistrate No.II, Madurai.
2. Since both the appeals arise out of the issuance of three cheques in pursuant to the agreement marked as Ex.P -7, dated 11.01.1998, both the appeals are disposed of, by this common judgment.
3. A perusal of the materials available on record in the form of typed set of documents and additional typed set of documents would disclose the following facts:-
An agreement dated 20.07.1997 came into being between the appellant/private complainant and respondents, namely, Ramakarishnan son of Sundaram Pillai (No.1), R.Muthulakshmi Ammal (No.2) wife of Ramakrishnan and their sons, namely, R.Palanikumar, (No.3) R.Buvaneshwaran (No.4) and a daughter, namely, Pramashanthi (No.5) with regard to the immovable property situated at Vadaku Masi Veethi, Door No.20, (presently Town Survey No.1044), Madurai Town Survey Ward No.7, (presently Ward 36), Madurai Town. As per the said agreement dated 20.07.1997, a sale consideration was fixed as Rs.8,26,000/- (Rupees Eight Lakhs and Twenty Six Thousand only). In terms of the said sale agreement, 1B Schedule was conveyed in favour of the brother of the complainant, namely, P.K.N.Kannan, by means of sale agreement, dated 27.08.1997, registered as Document No.1590 of 1997. In respect of the balance properties, there was a difference of opinion between the parties, subsequently, it was compromised and a fresh agreement dated 11.01.1998 came into being which was marked as Ex.P.7. As per Ex.P.7, the subsequent agreement, the parties in second part to the said agreement had received the excess amount of Rs.3,26,760/- from the party No.1 and the said amount should be repaid to him, within six months from the date of agreement, with 12% interest per annum and in this regard, the parties in second part, namely, Muthulakshmi Ammal (No.2) had issued three post-dated cheques. The agreement further reads that in the event of the said amount being paid within a period of six months, the earlier agreement dated 20.07.1997 stands cancelled and in the event of failure to pay the said amount within the stipulated period, the parties in second part shall convey 'A' and 'C' schedule properties in favour of the first part, namely, the appellant/private complainant. In the event of failure to do so, it is open to the first part to take appropriate legal proceedings against the second part.
4. It is the case of the appellant / private complainant that the parties of the second part marked as Ex.P.7, vide its agreement dated 11.01.1998 failed to perform their obligation. All the three cheques given by the said Muthulakshmi Ammal were dishonoured as 'insufficient funds' and it was followed by statutory notices, for which replies were sent containing untenable allegations and amount involved having not been repaid, the appellant herein came forward to file two complaints in C.C.Nos.633 and 634 of 1998 respectively, on the file of the learned Judicial Magistrate No.II, Madurai against the said Muthulakshmi Ammal, who issued the cheques in favour of appellant/private complainant.
5. The trial Court had taken cognizance of both complaints, issued summons to the respondent / accused who on appearance, pleaded not guilty to the charges framed against her. During the trial of the case, two witnesses were examined on behalf of the complainant and in C.C.No.633 of 1998 Ex.P.1 to 3 were marked. The accused was questioned under Section 313 of Criminal Procedure Code with regard to the incriminating circumstances made out against her by the appellant/private complainant and she denied it as false. The accused did not examine nor let in any evidence, but marked Ex.D.1 to D.7. Similarly, in C.C.No.634 of 1998, very same witnesses were examined as P.W.1 and P.W.2 and Ex.P.1 to P.7 were marked and the accused here again was questioned under Section 313 Criminal Procedure Code with regard to incriminating circumstances made out against her by the appellant/private complainant and she denied it as false. On behalf of her, no oral or documentary evidence was marked, but marked Ex.D.1 to D.7.
6. The trial court, on consideration of oral and documentary evidences, found that the complainant has proved the case and accordingly, vide separate judgment dated 01.08.2001, has convicted her and sentenced her to pay a fine of Rs.1000/- with the default sentence of one month simple imprisonment and further directed her to pay the cheque amounts due and payable under three cheques under Section 357(3) Criminal Procedure Code to the appellant. The accused aggrieved by the said conviction and ordering repayment of amounts due and payable under the cheques in question under Section 357(3) Criminal Procedure Code, has filed Criminal Appeal Nos.196 and 197 of 2001, respectively, on the file of the Court of Principal Sessions Judge, Madurai, which in turn made over to the Additional District and Sessions Court, Fast Track Court No.II, Madurai. The lower appellate Court found that in the event of breach of EX.P.7 agreement dated 11.01.1998, the proper course available to the appellant would be to initiate civil proceedings. The appellant has also suited O.S.No.551 of 2000 on the file of the Court of II Additional Subordinate Judge and also got interim attachment of the properties in question in I.A.No.315 of 2000.
7. In the light of the same and by assigning the said reasons, it has allowed both the appeals vide separate judgment dated 25.02.2005 and acquitted the accused. Hence, the criminal appeals have been filed by this appellant.
8. The learned counsel appearing for the appellant has invited the attention of this Court regarding the agreement dated 11.01.1998, marked as Ex.P.7 and would contend that with regard to the excess amount available at the hands of party No.2 to the said agreement, the cheques in question have been issued by the said Muthulakshmi Ammal, on presentation. all the cheques got dishonoured for the reasons that there was 'insufficient funds'. Therefore, rightly, the appellant/complainant has instituted civil suit for recovery of the said amount and ad-interim attachment of the said property. The fact remains that the criminal prosecution is independent of the civil proceedings. The said vital aspect has been completely overlooked by the lower appellate court and prayer for allowing of these criminal appeals.
9. When these appeals were listed for final disposal on 02.06.2014, it was noted that the learned counsel appearing for the respondent, namely, Mr.M.M.E.Philips, appointed through a Legal Aid Committee, was absent and this Court having taken note of the fact that the respondent/accused was unrepresented, listed the matter on 05.06.2014. When the appeals are listed for hearing today, the learned counsel appearing for the respondent is present and made submissions by contending that since the appellant / private complainant has also invoked the civil remedy by filing a civil suit, it is not open to him to maintain the criminal prosecution and would further add that reasons assigned by the lower appellate court is perfectly in order and eventually, prayed for the dismissal of the civil appeals.
10. This Court has carefully considered and also perused the additional typed set of documents.
11. A perusal of the agreement Ex.P.7, dated 11.01.1998 would disclose the fact that with regard to the excess amount available, one of the parties to the agreement, namely, Muthulakshmi Ammal had issued three cheques for a sum of Rs.3,27,760/- and as per the said agreement, it should be paid on 30.06.1998. It also contains the consequences of compliances / non- compliances of the said conditions. No doubt, all the three cheques have been presented before 30.06.1998 and got dishonoured stating that 'funds insufficient'. However, all the private complaints came to be lodged only after 30.06.1998. No doubt, the appellant / private complaint has also instituted civil proceedings by filing a suit in O.S.No.551 of 2000, on the file of the III Additional Sub-Court, Madurai, for recovery of the said sum along with interest and costs and also got an order of ad-interim attachment of properties in I.A.No.315 of 2000. The institution of civil suit by the appellant is a separate and independent proceedings and it has nothing to do with the criminal prosecution. There is no dispute that those three cheques in question have been given as security to the appellant. The execution of Ex.B.7 agreement is also not under serious dispute. Therefore, the reasons assigned by the lower appellate Court in reversing the sentence passed by the lower appellate Court in C.A.Nos.196 and 197 of 2001 are unsustainable.
12. In the result, these Criminal Appeals are allowed and the judgment dated made in C.C.Nos.633 and 634 of 1998 shall stand restored.
13. The Tamil Nadu Legal Service Committee, Madurai is directed to pay remuneration as per the norms to the learned counsel for the respondent.
02.03.2015 Index :Yes/No Internet :Yes/No ssm To
1.The Additional District and Sessions Judge, Fast Track Court No.II, Madurai.
2.The Judicial Magistrate No.II, Madurai.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
M.SATHYANARAYANAN, J.
ssm Judgment made in Criminal Appeal (MD)Nos.298 and 299 of 2005 Dated:
02.03.2015