Madras High Court
Thiruppathi vs Gurusamy on 26 November, 2018
Author: P. Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.11.2018
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.(MD) No.189 of 2012
and
Crl.O.P.(MD) No.10879 of 2012
in Crl.R.C.(MD) No.189 of 2012
Thiruppathi ... Petitioner
vs.
Gurusamy ... Respondent
PRAYER:- Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records of the learned
Principal Sessions Judge, Dindigul in Crl.A.No.27 of 2011 by
judgment dated 09.04.2012 confirming the conviction and sentence of
imprisonment imposed by the learned Judicial Magistrate, Nilakottai
in C.C.No.235 of 2004 by the judgment dated 22.06.2011 and set
aside the judgments of the Courts below.
For Petitioner : Mr.S.Mahendrapathy for
Mr.K.Manavalan
For Respondent : Mr.R.R.Kannan
in Crl.O.P.(MD) No.10879 of 2012
C.Gurusamy ... Petitioner
Vs.
Thirupathi ...Respondent
http://www.judis.nic.in
2
Prayer: This Criminal Original Petition filed under Section 482
Cr.P.C., to set aside the order made in Cr.R.P.No. 7 of 2012 dated
09.04.2012 on the file of the learned Principal Sessions Judge,
Dindigul confirming the order made in C.C.No. 235 of 2004 dated
22.06.2011 on the file of the learned Judicial Magistrate, Nilakottai
and award double the cheque amount i.e., Rs.3,00,000/- as
compensation as well as enhance the sentence to one year as per the
provision of the Negotiable Instruments Act 1881.
For Petitioner : Mr.R.R.Kannan
For Respondent : Mr.S.Mahendrapathy for
Mr.K.Manavalan
COMMON ORDER
Crl.R.C.(MD) No.189 of 2012 has been filed to set aside the order dated 09.04.2012 passed in Crl.A.No.27 of 2011 by the learned Principal Sessions Judge, Dindigul.
2.Crl.O.P.(MD) No.10879 of 2012 has been filed to set aside the order made in Cr.R.P.No. 7 of 2012 dated 09.04.2012 on the file of the learned Principal Sessions Judge, Dindigul
3.The case of the respondent / complainant is that the petitioner in Crl.R.C.(MD) No.189 of 2012 has borrowed a sum of Rs. 1,50,000/- from the respondent / complainant as debt and he issued a cheque bearing Reg.No.156824, Canara Bank, Batagundu Branch for a sum of Rs.1,75,000/-. When the cheque was presented before http://www.judis.nic.in 3 the said bank, the same was returned as 'insufficient funds' on 06.05.2004. Therefore, the respondent had sent a statutory notice on 14.05.2004 to the petitioner. Though he has sent a reply, he has not paid the amount as demanded in the statutory notice. Hence, the respondent / complainant had filed a complaint before the learned Judicial Magistrate, Nilakottai, for the offence under Section 138 of Negotiable Instruments Act and the same was taken on file in C.C.No. 235 of 2004.
4.After enquiry, the learned Judicial Magistrate, Nilakottai, found the petitioner guilty for the offence under Section 138 of Negotiable Instruments Act and convicted and sentenced him to undergo 6 months simple imprisonment and to pay a fine of Rs. 5,000/- in default, to undergo 1 month simple imprisonment, against which, the convict had filed an appeal in Crl.A.No.27 of 2011 and also the respondent / complainant had filed a revision in Cr.R.P.No.7 of 2012 before the learned Principal Sessions Judge, Dindigul.
5.After hearing the arguments advanced by the learned counsel on either side and also perusing the records, the learned Principal Sessions Judge, Dindigul, passed a common judgment dismissing both the revision and also the appeal, against which, the respondent / http://www.judis.nic.in 4 complainant had filed Crl.O.P.(MD) No.10879 of 2012 and also the petitioner / accused had filed Crl.R.C.(MD) No.189 of 2012.
6.Heard the learned counsel on either side. Records perused.
7.There is no dispute with regard to the signature found in the cheque and also the execution of the cheque. Once the signature found in the cheque and also the execution of the cheque are admitted, there is a statutory presumption that the cheque was issued for legally enforceable debt and the said presumption is a rebutted presumption. The petitioner / accused has not rebutted the statutory presumption. Both the Courts below have found the petitioner / accused guilty for the offence under Section 138 of Negotiable Instruments Act. The judgments of the Court below are concurrent judgment, since the issuance of the cheque and also the signature found in the cheque are admitted and also the statutory presumption has not been rebutted by the petitioner / accused. While exercising the revisional jurisdiction, this Court need not to sit in the armchair of the judgment of the appellate Court. It is enough to see as to whether any perversity in the orders of the Courts below while appreciating evidence of finding regarding the facts.
http://www.judis.nic.in 5
8.On reading of the entire materials placed before this Court, this Court does not find any perversity in the judgment of both the Courts below while appreciating evidence. Both the Courts below found the petitioner guilty for the offence under Section 138 of Negotiable Instruments Act and awarded compensation.
9.In view of the conviction passed by the Courts below are concerned, there is no perversity in the sentence imposed by the Courts below. The award of compensation passed by the Courts below are concerned, there is no reason for not awarding compensation. To meet the ends of justice, if the petition is filed under Section 357(ii) Cr.P.C., it is the appropriate case to avoid compensation.
10.In view of the above, the petitioner / accused in Crl.R.C.(MD) No.189 of 2012 is directed to pay a sum of Rs.3,00,000/-, which is equal to twice the amount of disputed cheque to the credit of Cr.R.P.No.7 of 2012 within a period of one month from today i.e., 26.11.2018. If the petitioner / accused pays the said amount within the reasonable time, the sentence imposed by the lower Court as against the petitioner / accused shall stand set aside, in default, the http://www.judis.nic.in 6 P. VELMURUGAN, J.
mm sentence imposed by the lower Court as against the petitioner / accused shall stand confirmed.
11.With the above modification and direction, the criminal revision case and the criminal original petition are disposed of.
Index : Yes / No 26.11.2018
Internet : Yes / No
mm
To
1.The Principal Sessions Judge,
Dindigul.
2.The Judicial Magistrate,
Nilakottai.
Crl.R.C.(MD) No.189 of 2012
and
Crl.O.P.(MD) No.10879 of 2012
http://www.judis.nic.in