Madras High Court
V.P.Kumarasamy vs S.Ayyappan on 8 February, 2018
Author: R. Suresh Kumar
Bench: R. Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.02.2018 CORAM THE HONOURABLE MR. JUSTICE R. SURESH KUMAR Crl.A.No.481 of 2016 V.P.Kumarasamy Appellant Vs. S.Ayyappan Respondent Prayer: Criminal Appeal is filed under Section 378 of the Code of Criminal Procedure to set aside the order of acquittal dated 07.12.2015 made in C.A.No.25 of 2014 on the file of the learned II Additional District Sessions Judge, Erode, reversing the order of conviction dated 10.02.2014 made in S.T.C.No.433 of 2009 on the file of the learned District Munsif -cum- Judicial Magistrate, Kodumudi, Erode. For Appellant : Ms.R.Shase For Respondent : Mr.N.Manokaran JUDGMENT
This appeal has been filed against the order passed in C.A.No.25 of 2014 by the learned II Additional District Sessions Judge, Erode, vide order dated 07.12.2015, by which, the Judgment and conviction made in S.T.C.No.433 of 2009 of the learned District Munsif -cum- Judicial Magistrate, Kodumudi, Erode, dated 10.02.2014, has been reversed.
2.The appellant herein is the complainant and the respondent herein is the accused before the trial Court.
3.The case of the complainant was that, the accused had borrowed a sum of Rs.3,00,000/- from the complainant on 08.03.2009 with an assurance that the same would be paid back within one month i.e, on 09.04.2009. Accordingly, the accused had issued a cheque dated 09.04.2009 for the said sum of Rs.3,00,000/- drawn on ING Vysya Bank Limited, Erode Branch, in Cheque No.241733.
4.The said cheque was presented by the complainant and the same was returned on 18.05.2009 by the Canara Bank stating that the account of the accused was closed, whereby the accused had issued the said cheque knowingfully well that he had already closed the bank account and no money available in his account. Therefore, the complainant had issued a statutory notice under Section 138 (b) of the Negotiable Instruments Act, 1881 on 03.06.2009 through his Lawyer and having received the said notice, the accused on 10.06.2009, had not come forward to settle the amount. Therefore, the complainant filed private complaint against the accused seeking appropriate legal action to punish the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. (NI Act in short).
5.The learned Magistrate, after taking the complaint on file in STC No.433 of 2009 and after issuance of summons to the accused, examined the witnesses. The complainant himself had been examined as P.W.1 and Ex.P.1 to Ex.P.8 were marked on the side of the complainant. On behalf of the accused, the Branch Manager of Canara Bank, Nadupalayam Branch, had been examined. Also, the accused had been examined as D.W.2.
6.After having recorded the evidences and considering the depositions and evidences put forth by both sides, the trial Court had come to a conclusion that the respondent/accused committed an offence punishable under Section 138 of the Negotiable Instruments Act and accordingly, the trial Court has convicted the accused for the offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for six months and also, directed the accused to pay the Cheque amount of Rs.3,00,000/- to the complainant under section 357(3) of CrPC within a period of three months, in default the accused shall undergo Simple Imprisonment for two months.
7.Aggrieved over the said Judgment and conviction, the accused preferred an appeal before the First Appellate Court i.e., the learned II Additional District and Sessions Judge, Erode, in Crl.A.No.25 of 2014. The learned Judge, after having considered the evidences and the findings given by the trial Court and taken into account the document namely, the copy of the Insolvency Petition No.54 of 2008 filed by the accused and the contents therein, has acquitted the accused by allowing his appeal by order dated 07.12.2015. Against which, the present appeal has been filed by the complainant.
8.I have heard Ms.R.Shase, learned counsel appearing for the appellant as well as Mr.N.Manoharan, learned counsel appearing for the respondent.
9.The case of the complainant before the trial Court was that the accused had borrowed a sum of Rs.3,00,000/- on 08.03.2009 with an assurance that the same would be paid back to the complainant within one month period i.e., on 09.04.2009 and accordingly, a cheque dated 09.04.2009 drawn on ING Vysya Bank Limited, Erode Branch, was given by the accused. When the said cheque was presented, it was returned for the reason that the account of the accused has already been closed. Thereafter, statutory notice was issued by the complainant and the accused having receipt of the same, had not come forward to pay back the cheque amount and therefore, private complaint was filed under Section 138 and 142 of the Negotiable Instruments Act to punish the accused.
10.In support of the said case, on the side of the complainant, he himself has been examined as P.W.1 before the trial Court and Ex.P.1 to Ex.P.8 were marked. On the side of the accused, the Branch Manager of the Bank namely, Canara Bank, Nadupalayam Branch, was examined as D.W.1, who deposed before the trial Court that the complainant is having S.B. Account No.3069 at the DW1's Bank between the period i.e., 01.02.2009 and 10.03.2009 and the statement of accounts which was marked as Ex.D.1, shows that in the said account, only a sum of Rs.31,037/- was available and during that period, there was no transaction of Rs.3,00,000/-.
11.Also, the accused himself had been examined before the trial Court as D.W.2. According to him, he did not know the complainant himself. The son-in-law of the complainant one L.P.Palanisamy was running a chit and from whom, he had taken chit amount and he had settled the entire chit amount and at the time of chit transaction, he had issued some cheque leaves during the year 2008-2009 and such cheques had not been returned back to him. It was the further case of the accused before the trial Court that, because of his financial position, he had to file an Insolvency Petition in I.P.No.54 of 2008 before the concerned Court. According to the accused, the said Palanisamy had given cheque leaves, which were given by the accused as guarantee, at the time of chit transaction, to his father-in-law Kumarasamy i.e., the complainant and the said cheque has been misused by the complainant against the accused and therefore, there was no legally enforceable debt between the complainant and the accused and therefore, the accused has not committed any offence under Section 138 of the Negotiable Instruments Act, and hence, he had to be acquitted.
12.The said aspects were considered in detail by the trial Court. The Trial Court has gone into the evidences cogently submitted by the complainant side, that in lieu of the loan of Rs.3,00,000/- borrowed by the accused from the complainant, he had issued a cheque No.241733, dated 09.04.2009 drawn on ING Vysya Bank Limited, Erode Branch, and the same was marked as Ex.P.1. At the time of reply to the statutory notice as well as the cross examination of D.W.2, the accused had accepted that the cheque belongs to him and he only executed the said cheque and the signature made in is his, but, the only defence therein, according to the accused side was that, the said cheque had been given to the son-in-law of the complainant one L.P.Palanisamy and he only misused the same through his father-in-law.
13.In this regard, the trial Court has gone into the aspects that, the accused has stated that the entire amount which he borrowed from the son-in-law of the complainant, out of chit transaction, since had been fully settled or paid, there was absolutely no transaction therein between the son-in-law of the complainant as well as the accused. The trial Court has gone into the aspects that if at all, the amount has been settled out of chit transaction to the son-in-law of the complainant, whatever documents claimed to have been given by the accused to the son-in-law of the complainant should have been obtained back and absolutely, no attempt to that effect, had been made by the accused and therefore, the trial Court had come to the conclusion that unless an acceptable rebuttal has come from the side of the accused, the statutory presumption which is always in favour of the complainant under the Negotiable Instruments Act, cannot be brushed aside.
14.In this regard, the learned Magistrate has given the following findings:
,e;j epiyapy; nkw;go fhnrhiy kw;Wk; g[nuh nehl;Lf;fis epiwa egh;fSf;F g{h;j;jp bra;ag;glhky; bfhLj;Js;sJ jtW vd;Wk;/ gpd;dpl;L mJ jdf;F vjpuhf gad;gLj;jf;TLk; vd;W bjhpe;j epiyapnyna mtw;iw bgw;Ws;shh;. ,e;j epiyapy; mjw;fhf Vw;gLk; tpist[fis ,e;j vjphpjhd; re;jpf;f nehpLk;. mnj rkak; khw;WKiw Mtzr;rl;lk; gphpt[ 139 kw;Wk; 118-d; fPH; nkw;go fhnrhiy mjpYs;s kWgad; kw;Wk; mjpy; Fwpg;gpl;Ls;s njjp Fwpg;gpl;l egh;fsJ bgaUf;Fjhd; kWgaDf;fhf vJt[k; ep+gpf;fg;glhj tifapy; mDkhdk; bfhs;s ntz;Lbkd;W Fwpg;gplg;gl;Ls;sJ. ,Ug;gpDk; initial burden mjid ep+gpf;f ntz;oaJ ,e;j thjpapd; flikahFk;. mtw;iw ,e;j g[fhh;thjp gzk; bfhLj;jJ gw;wpa[k; mJ Fwpj;J fhnrhiy ePjpkd;wj;jpy; jhf;fy; bra;J vjphpapd; bjhHpy;/ FLk;gk; gw;wpa tpgu';fis Fwpg;gpl;Ls;shh;. Mdhy; vjphp jug;gpy; nkw;go mDkhdj;ij kWf;Fk; ;tifapy; khwhf VjhtJ ep+gpf;fg;gl;Ls;sjh? vd;gij ghh;f;ifapy; nkw;go fhnrhiy vy;.gp.gHdpr;rhkpf;F rPl;L nghl;L gzk; vLj;J mjw;F ghJfhg;ghf fhnrhiy bfhLj;jjhft[k; rPl;L gzk; midj;ija[k; fl;o Koj;Jtpl;ljhft[k;/ Mdhy; fhnrhiyia ehd; th';ftpy;iy vd;Wk; Fwpg;gpl;Ls;shh;. ,t;thW rPl;L gzk; fl;o Koj;Jtpl;l epiyapy; nkw;go fhnrhiy th';fhky; tpl;Ltpl;nld; vd;W Fwpg;gpLtJ ek;g[tjw;Fhpajhf ,y;iy. ,Ug;gpDk; Tl mJ cz;ik vd;gij ep+gzk; bra;a[k; tifapy; VnjDk; fhty;epiyaj;jpy; g[fhh; bfhLj;njh my;yJ tHf;fwp"h; \yk; mwptpg;g[ mDg;gg;gl;oUe;jhy; Tl nkw;go tPjk; Vw;gl;oUf;Fk; vd;gij mDkhdpg;gjw;fhd Kd; Kfhe;jpuk; cs;sJ. Mdhy; mt;thW vJt[k; me;j fhnrhiy jpUk;g bgWtjw;fhd eltof;if vJt[k; vLj;jjhf vjphp jug;gpy; Fwpg;gpltpy;iy.
15.Further, the trial Court has gone into the further case of the accused that, he had filed an Insolvency Petition in I.P.No.54 of 2008. In this regard, he did not file any document before the trial Court and the Insolvency Petition had been really filed by the accused or not, has not been proved before the trial Court.
16.Insofar as the other defence taken by the accused that, during the relevant period, in the said Bank account, only a sum of Rs.31,037/- was available, is concerned, the trial Court held that, based on the account of complainant, it cannot be presumed that the complainant did not have means to lend the loan of Rs.3,00,000/- to the accused. This aspect has also been gone into in detail by the trial Court and in this regard, the deposition of P.W.1 has been taken into account, where he had stated that, he is having lands, where he cultivates sugarcane and turmeric and out of the said cultivation, he earned money and out of the said earnings, the said amount of Rs.3,00,000/- has been paid. Therefore, it is the specific case of the complainant that those income derived from the agricultural activities, cannot be shown in the account for the purpose of income and therefore, merely because there is no enough money available with the bank, it cannot be presumed that the complainant did not have enough source to lend the loan of Rs.3,00,000/- to the accused. By giving all these reasons, the learned trial Judge has come to the conclusion that the accused has committed an offence under Section 138 of the Negotiable Instruments Act and therefore, the conviction and sentence to undergo Simple Imprisonment for six months has been inflicted against the accused with a fine of Rs.3,00,000/- to be paid within three months, in default, the accused has to undergo Simple Imprisonment for a further period of two months.
17.When this Judgment was appealed before the First Appellate Court, the learned Appellate Judge, after having taken into account the factual matrix discussed above, has concluded that the Judgment of the trial Court is liable to be reversed.
18.The reasons for the said decision taken by the First Appellate Court are that, the accused has set up a case stating that the cheque, which was in question i.e., Ex.P.1 was not given to the complainant and it was given to one L.P.Palanisamy, who is the son-in-law of the complainant. The trial Court has also not given much credence on the statement given by D.W.1 stating that between 01.02.2009 and 10.03.2009, there was only a sum of Rs.31,037/- was available with the Savings Bank Account of the complainant and during that period only the said amount of Rs.3,00,000/- was given to the accused.
19.The First Appellate Court has in fact taken into account the copy of the Insolvency Petition No.54 of 2008 filed by the accused before the First Appellate Court. While taking into consideration the said Insolvency Petition, the learned Appellate Judge, has given his findings that, in the said Insolvency Petition at Schedule A (Liabilities), the Cheque Nos.689081 to 689100 had been given and since the said Insolvency Petition filed before the First Appellate Court was the Certified copy obtained from the concerned Court the same can be taken into account and accordingly, it has been taken into account by the First Appellate Court.
20.However, the First Appellate Court has further given a finding that, the cheque in question had already been given to one L.P.Palanisamy, the son-in-law of the complainant and the same had been reflected in the Insolvency Petition in the year 2008, and in that Insolvency Petition, the said Palanisamy was the respondent No.8 and therefore, on that basis the learned appellate Judge has come to the conclusion that the cheque in question was not given to the complainant.
21.In this regard, in order to appreciate the said reasons, the entire discussions and the reasonings given by the First Appellate Court are re-produced hereunder:
6)gpur;rid vz;.1:
tprhuiz kd;wj;jpy; g[fhh;jhuuhd thjp jd;id th.rh.1 Mf tprhhpj;Jf; bfhz;L jd;Dila rhl;rpaj;jpw;fhf gpukhz thf;F\yj;ij jhf;fy; bra;J FWf;F tprhuizf;Fl;gl;L ,Uf;fpwhh;. mtuJ FWf;F tprhuizapy; tHf;F fhnrhiy thjpapd; kUkfd; vy;.gp.gHdprhkpf;F bfhLj;jJ vd;Wk;/ mth; thjpia fUtpahf gad;gLj;jp tHf;Fj; jhf;fy; bra;ag;gl;L ,Ug;gjhfj; jhd; FWf;F tprhuiz bra;ag;gl;L ,Uf;fpwhh;. v.rh.1 Mf tprhhpf;fg;gl;l fduh t';fp nkyhsh; jpU RFkhud; jd; eLg;ghisak; fduh t';fpapy; thjpf;F nrkpg;g[ fzf;F 3069 vd;w vz; bfhz;l fzf;F cs;sJ vd;Wk;/ 1.2.2009 njjpapy; ,Ue;J 10.3.2009 njjp tiuahd fhy fl;lj;jpy; thjpapd; fzf;fpy; +.3 yl;rk; tut[ bryt[ vJt[k; ,Uf;ftpy;iy vd;Wk;/ +.31/037/- kl;Lk; jhd; mtUila fzf;fpy; ,Ue;jJ vd;Wk;; rhl;rpakspj;jpUf;fpwhh;. vjphp jd;id v.rh.2 Mf tprhhpj;Jf; bfhz;L jd;Dila rhl;rpaj;jpy; thjpapd; kUkfd; vy;.gp.gHdprhkpaplk; rPl;L nghl;L gzk; vLj;jjhft[k;/ mjw;F ghJfhg;gpw;fhf fhnrhiy bfhLf;fg;gl;ljhft[k; rPl;L gzk; fl;oa[k; fhnrhiyia jpUk;g th';ftpy;iy vd;Wk;/ behog;g[ epiy kD vz;.54 / 2008 y; ,J Fwpj;J Fwpg;gpl;L;s;sjhft[k; rhl;rpakspj;jpUf;fpwhh;. behog;g[ epiy kD vz;.54 / 2008 kD kw;Wk; cj;jutpd; rhd;wpl;l efy; jhd; jw;nghJ TLjy; Mtzkhf ,k;kd;wj;jpy; jhf;fy; bra;ag;gl;Ls;sJ. Mjpy; fld;fs; Vbrl;oa{y; gl;oaypy; fhnrhiy vz;fs;.689081 Kjy; 689100 Fwpg;gplg;gl;L ,Uf;fpd;wd vd;Wk;/ chpa ePjpkd;wk; tH';fpa rhd;wpl;l efy; vd;gjhy; me;j Mtzk; ghprPyidf;FhpaJ jhd; vd;W ,k;kd;wk; jPh;khdpj;J mjd; r';fjpfis ghprPyidf;F Vw;Wf; bfhs;fpwJ.
7)thjp Fwpg;gpLk; njjpf;F Kd;ng ,e;j fhnrhiy thjpapd; kUkfd; vy;.gp.gHdpr;rhkpf;F bfhLf;fg;gl;L ,Ug;gjhf 2008k; tUlj;jpnyna behog;g[ epiy kD jhf;fy; bra;ag;gl;Ls;sJ. thjpapd; kUkfd; gHdpr;rhkp jhd; behog;g[ epiy kDtpy; 7k; vjph;kDjhuh;. mth; ,k;kd;wj;jpy; rhl;rpakspj;Js;shh;. kUkfDf;F Vw;fdnt vjphp gzk; ju ntz;oa epiyapy; vjphp gzk; juhky; behog;g[ epiy kD jhf;fy; bra;jpUf;Fk; NH;epiyapy;/ khkdhh; vGjpf; bfhLj;j bjhifahd +.3yl;rj;ij flDWjpr;rPl;L Tl ,y;yhky; fldhf bfhLj;jjhf TWtJ cz;ikahf ,Uf;f ,ayhJ. gHdpr;rhkpf;Fk; Fkhurhkpf;Fk; tpnuhjk; vd;gjhfnth/ ngr;Rthh;j;ij ,y;iy vd;gjhfnth/ nghf;Ftuj;J ,y;iy vd;gjhfnth nk.K.rh.1 gHdprhkp FWf;F tprhuiz bra;ag;gltpy;iy. nkw;fz;l NH;epiyfspy; thjp Fwpg;gpLtJ nghy; 08.03.2009 njjpapy; vjphp +.3yl;rk; fldhf bgw;Wf; bfhz;lhh; vd;Wk;/ 09.04.2009 njjpapy; mij jpUg;gpr; brYj;Jtjhf Twp tHf;F fhnrhiy bfhLj;jhh; vd;W TwtJk; ek;g[k;goahf ,y;iy. Fw;w tHf;fpy; Fw;wr;rhl;lhdJ jFepiy ma;aj;jpw;F mg;ghw;gl;L ep+gpf;fg;gl ntz;Lk;. Mdhy; ek; ghprPyidapy; ,Uf;Fk; ,e;j tHf;fpy; fhnrhiy thjpf;F bfhLf;fg;gl;lJ my;y vd;gJk;/ thjpapd; kUkfDf;F tHf;fpy; Fwpg;gpl;l njjpf;F Kd;ng bfhLf;fg;gl;lJ vd;Wk; brhy;tJ bjsp[[tgLj;jg;gl;Ls;sJ. Mf thjp Fwpg;gpLk; njjpapy; tpjj;jpy; jhthf; fhnrhiy thjpaplk; bfhLf;fg;gl;lJ vd;gJ ma;aj;jpw;Fhpajhft[k; thjpapd; Tw;W ek;gKoahjjhft[k; mike;J ,Uf;fpwJ vd;W ,k;kd;wk; fUJfpwJ. Mf 09.04.2009 njjpapy; +.3 yl;rk; flid brYj;Jtjw;fhf 241733 fhnrhiy thjpf;F vjphp bfhLj;jhh; vd;gJ ep+gpf;fg;gltpy;iy vd ,k;kd;wk; fUJfpwJ. ,e;j gpur;ridf;F ,t;thwhf tpil fhzg;gLfpwJ.
22.The learned appellate Judge has come to the conclusion mainly on the ground that, the cheque in question had not been given to the complainant. But, the fact remains that the cheque in question is Cheque No.241733, drawn on ING Vysya Bank Limited, Erode Branch, which was marked as Ex.P.1. Whereas, the Cheque Numbers, which are mentioned in the Insolvency Petition No.54 of 2008 are Cheque Nos.689081 to 689100 of ICICI Bank. The said copy of the Insolvency Petition has also been filed before this Court, which has been perused by this Court. No doubt, it discloses that in the Insolvency Petition in Schedule 'A' (Liabilities) at Sl.8, the name of the said L.P.Palanisamy has been mentioned and under the Head 'Nature of Debts', it has been mentioned as ICICI Bank, Cheque Nos.689081 to 689100 for a sum of Rs.2,00,000/-. It is very interesting to note that in the said Insolvency Petition, one Muthukumar has also been shown as Sl.No.7 and he has also been arrayed, by accused as one of the creditors. In the very same schedule 'A (Liabilities), the name of Muthukumar has been mentioned at Sl.No.7, against whom under the Column Nature of Debts, the very same Cheque Nos.689081 to 689100 of ICICI Bank had been given for the amount of Rs.1,00,000/-. The relevant portion of the Schedule A (Liabilities) in the Insolvency Petition, is extracted hereunder:
Sl.No. Name of the Creditor Nature of debts Amount in Rs.7
Muthukumar ICICI Bank C.Nos.689081 to 689100 1,00,000.00 8 L.P.Palanisamy ICICI Bank C.Nos.689081 to 689100 2,00,000.00
23.Therefore, it is unambiguously clear that the accused had shown some Cheque Numbers of ICICI Bank in respect of the said Palanisamy as well as one Muthukumar, who were, according to the accused, among the list of creditors in the Insolvency Petition, where the Cheque Numbers of ING Vysya Bank Limited, which is in question i.e., Ex.P.1, has not been shown.
24.However, the learned Appellate Judge, at Para 7 of the impugned Judgment, as extracted herein above, has given a categorical finding that, before the date of alleged transaction between the complainant and the accused, the said Ex.P.1-Cheque was given to the son-in-law of the complainant namely, L.P.Palanisamy and this factor has been mentioned in the Insolvency Petition in the year 2008 itself. The said finding of the learned Appellate Judge is totally without any substance or record and this Court is at loss to understand on what basis the said finding has been given by the learned Appellate Judge, which mainly influenced the learned Judge to take a decision that Ex.P.1, the cheque in question, had not been given to the complainant.
25.Since the said finding based on the Insolvency Petition is against the evidence and based on the said findings, the Judgment of the trial Court, since has been reversed by the appellate Court, this Court is of the considered view that, the said finding of the Appellate Court is liable to be interfered with.
26.Moreover, the Law is well settled that, in the proceedings under Section 138 of the Negotiable Instruments Act, it is the duty on the part of the complainant to prove the case that the cheque was executed by the accused by his own signature and also, for a legally enforceable debt and once such a prima facie proof is made out by the complainant, the statutory presumption would be in favour of the complainant and the same can be rebutted only by the accused by acceptable evidence.
27.Here in the case in hand, the only evidence according to the accused, was that he had filed Insolvency Petition, where he shown the name of the son-in-law of the complainant as one of the creditors and showing various liabilities including the name of the son-in-law of the complainant, the cheques which have already been given to each of the creditors have been mentioned and Ex.P.1, the cheque in question had also been given to the son-in-law of the complainant, which has been misused by the complainant.
28.In this regard, though the first appellate Court has given much credence on the said statement based on the certified copy of the Insolvency Petition filed before the appellate Court, the said petition does not disclose anything in favour of the accused to support his case that Ex.P.1-cheque was also given to the son-in-law of the complainant. Moreover, it was the definite case of the accused before the trial Court that, there was a chit transaction between the son-in-law and the accused and out of the said transaction, whatever money borrowed by the accused had already been settled. Once, the transaction between the son-in-law of the complainant and the accused since had been settled as admitted or averred by the accused, the question of showing the said Palanisamy i.e., the son-in-law of the complainant, once again in the Insolvency Petition, as one of the creditors, does not arise at all.
29.Moreover, on perusal of the said Insolvency Petition as has been shown above, it is disclosed that the very same cheque of ICICI Bank had been shown against not only Palanisamy, the son-in-law of the complainant, but also against one Muthukumar. Therefore, the accused was not definite in the specific case as he averred or deposed before the trial Court and hence, the averment or deposition on the part of the accused cannot be taken as an acceptable rebuttal and the statutory presumption is always in favour of the complainant. Therefore, this Court has no hesitation to come to the conclusion that the first Appellate Court has erroneously reversed the finding and Judgment given by the trial Court and accordingly, this Court is of the view that the Judgment impugned passed by the First Appellate Court is liable to be set aside and the Judgment and conviction of the trial Court is to be restored.
30.In the result, the Judgment of the First Appellate Court namely, the learned II Additional District and Sessions Judge, Erode, made in C.A.No.25 of 2014 dated 07.12.2015 is set aside and the Judgment and the conviction made by the learned District Munsif -cum- Judicial Magistrate, Kodumudi, Erode, in S.T.C.No.433 of 2009, is restored.
31.Considering the plea made by the learned counsel appearing for the accused that the appellant has already filed Insolvency Petition and whether he has means to honour the cheques he had given, itself is highly doubtful, the sentence given by the trial Court is modified as follows:
The appellant/accused shall be sentenced to undergo Simple Imprisonment for three months and to pay a fine of Rs.3,00,000/- (Rupees three lakhs only) within a period of six months, in default, to undergo Simple Imprisonment for one month. With these modifications, this Criminal Appeal is allowed.
08.02.2018 Index :yes/no Internet :yes/no mps To
1.The II Additional District Sessions Judge, Erode.
2.The District Munsif -cum- Judicial Magistrate, Kodumudi, Erode.
R. SURESH KUMAR, J, mps Crl.A.No.481 of 2016 08.02.2018