Madras High Court
Manivannan vs Bhuvaneswari on 13 July, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 13.07.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C. No.1104 of 2009 and M.P.No.2 of 2009 Manivannan .. Petitioner Vs. Bhuvaneswari .. Respondent Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the order dated 16.09.2009 passed in C.A.No.69 of 2008 on the file of the Additional Sessions Court / Fast Track Court-III, Virudhachalam, Cuddalore District whereby confirming the order passed in C.C.No.2/2006, dated 13.08.2008 on the file of District Munsif cum Judicial Magistrate, Tittagudi whereby imposing sentence of one year imprisonment and imposed fine amount of Rs.5,000/- in default three months imprisonment. For Petitioner : Mr.C.Prakasam For Respondent : No Appearance O R D E R
The revision petitioner / appellant / accused has preferred the present Criminal Revision in Crl.R.C. No.1104 of 2009, against the order passed in C.A.No.69 of 2008, on the file of the Additional Sessions Court, Fast Track Court-III, Virudhachalam, Cuddalore District, confirming the order passed in C.C.No.2 of 2006, on the file of the District Munsif cum Judicial Magistrate, Tittagudi.
2.The short facts of the case are as follows:-
The accused had borrowed a loan of Rs.50,000/- from the complainant on 17.11.2005 in order to meet his urgent family expenses and in order to repay the loan, had issued a cheque for Rs.50,000/- dated 17.11.2005, drawn on Indian Bank, Virudhachalam Branch to and in favour of the complainant. When the complainant deposited the said cheque for collection with his banks namely Cuddalore District Central Co-operative Bank on 21.11.2005, it was returned dishonoured due to insufficient funds in the account of accused. The complainant was intimated on the return of cheque on 22.11.2005. The complainant sent a lawyer's notice to the accused on 06.12.2005 which was received by the accused on 08.12.2005 but in spite of receipt of notice, the accused did not pay the cheque amount. Hence, the complainant had filed the complaint against the accused for an offence under Section 420 of I.P.C. and Section 138 of the Negotiable Instruments Act.
3.On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant's side, 4 witnesses were examined and 5 documents were marked as Exhibits P1 to P5 namely Ex.P1-Cheque; Ex.P2-Return memo of Indian Bank, Virudhachalam; Ex.P3-Debt advice issued by Cuddalore District Central Co-operative Bank; Ex.P4-Copy of lawyer's notice and Ex.P5-Acknowledgment card. On the side of the accused two witnesses were examined and no document was marked.
4.PW1, Bhuvaneswari, the complainant had adduced evidence which is corroborative of the statements made in the complaint regarding dishonour of cheque issued by the accused. In support of her evidence, she had marked Exhibits P1 to P5. PW2, Anbazhagan, had adduced evidence that the complainant had presented a cheque for Rs.50,000/- at their bank namely District Central Co-operative Bank, Tittakudi on 21.11.2005 and that when it was sent for collection to the banker's of the accused namely Indian Bank, Virudhachalam on 23.11.2005, it was returned dishonoured due to insufficient funds in the account of the accused.
5.PW3, Arumugam, the Assistant Manager of Indian Bank, Virudhachalam had adduced evidence that the accused had an account in their bank and that his account number was 15349 and that the cheque leaf (Ex.P1) had been issued by their bank. He deposed that when the said cheque was presented at their bank for collection on 21.11.2005, it was returned dishonoured due to insufficient funds in the account of accused through return memo marked as Ex.P2.
6.PW4, Subramanian, the Assistant Manager of Indian Bank, Tittakudi had adduced evidence that the earlier Assistant Manager namely Arumugam had been transferred to their Virudhachalam Branch.
7.RW1, Manivannan, the accused had adduced evidence that he had neither borrowed a loan of Rs.50,000/- from the complainant nor had given her a cheque for this amount. He deposed that one Duraisamy, the husband of the complainant had requested him to sell his Tata Sumo vehicle through a broker and told him that he expected Rs.90,000/- for the vehicle and that any amount which he was able to procure above this price can be taken by him as his commission. He deposed that he had sold the vehicle for Rs.1,15,000/- but the said Duraisamy had not paid him the commission as promised. He deposed that he used to keep his bag at Duraisamy's house, while going out to effect supplies and that the cheque leaf which he had left in his bag had been misused by the complainant and that a false case had been foisted on him.
8.RW2, Kuppusamy had adduced evidence that the complainant had asked the accused to sell the complainant's Tata Sumo Car and that he expects Rs.90,000/- for it. The accused had sold the Car to one Senthil who is residing in Perumal Kovil Street, Ulundurpet for Rs.1,15,000/-, when the accused asked the complainant to pay him the commission for sale of Car, the complainant had refused to pay him.
9.The District Munsif cum Judicial Magistrate observed that the accused had neither mentioned the registration number of the Tata sumo car which had been sold and had not mentioned the date and time of such transaction. The Judicial Magistrate further observed that the accused had not examined the buyer of the said car. The Judicial Magistrate further observed that the accused had not mentioned the date on which he had left his bag at the complainant's place and also not mentioned whether the cheque had been kept in blank or filled up condition. The Judicial Magistrate further observed that the accused had neither given a complaint to the police station regarding loss of cheque book nor sent a lawyer's notice to the complainant regarding the alleged missing cheque. The Judicial Magistrate further observed that the accused, even after receipt of lawyer's notice from the complainant on 08.12.2005, had not initiated any action against the complainant for two years regarding alleged theft of cheque. Hence, the Judicial Magistrate, on scrutiny of oral and documentary evidence held the accused guilty of offence under Section 138 of Negotiable Instruments Act and sentenced him to under Simple Imprisonment for one year and imposed a fine of Rs.5,000/- and in default to undergo further period of Simple Imprisonment for 3 months.
10.Aggrieved by the conviction and sentence imposed by the trial Court, the accused had preferred an appeal in C.A.No.69 of 2008 before the Additional District and Sessions Judge, Fast Track Court No.III, Virudhachalam. The learned Appellate Court, after scrutiny of order of trial Court and on scrutiny of the oral and documentary evidence, dismissed the appeal and confirmed the trial Court's order. Aggrieved by the dismissal of his appeal, the appellant / accused has preferred the present revision.
11.The learned counsel appearing for the revision petitioner has contended in his revision that the Court's below failed to note that the complainant's husband namely Duraisamy is a close friend of the petitioner and when the said Duraisamy asked the petitioner to sell his Tata sumo car for any rate and that the petitioner should hand over Rs.90,000/- to him. The petitioner sold the Car for Rs.1,15,000/- but the purchaser of the said Car handed over the entire amount to the complainant and her husband. Hence, the petitioner frequently visited the complainant's house and requested her to return Rs.25,000/- to the petitioner, being the commission payable to him for sale of the car but the complainant and her husband dragged on the issue. It was contended that the said Duraisamy had taken away signed blank cheque from the petitioner's bag, which was kept in the complainant's house and given it to the complainant, who had misused the same. It was contended that the complainant's husband had filled up the amount and name by using different pen and ink and as such it is proved that there is no liability on the part of the petitioner to the complainant herein. Hence, it was prayed to set aside the order passed by the Courts below.
12.The highly competent counsel Mr.C.Prakasam further submits that as per this Court's conditional order imposed on the accused on 17.11.2009, to deposit 50% of the cheque amount within a period of four weeks, the amount had been deposited. Subsequently, on 05.06.2012, the accused had paid the balance cheque amount of a sum of Rs.25,000/- to the complainant by way of demand draft. The learned counsel had also produced xerox copy of the demand draft.
13.On considering the facts and circumstances of the case and arguments advanced by the learned counsel for the revision petitioner and on perusing the judgments of the Courts below, this Court does not find any shortcomings in the conclusions arrived at for convicting the accused under Section 138 of Negotiable Instruments Act as the case has been proved by the complainant beyond reasonable doubt. However, the accused had paid the entire cheque amount. Hence, this Court waives the sentence of Simple Imprisonment of one year imposed on the accused. Further, the accused had paid a sum of Rs.5,000/- as penalty which is sufficient punishment in the instant case. Further, the complainant is at liberty to withdraw the amount deposited by the accused, as per this Court's earlier direction, after filing a memo.
14.In the result, the above revision petition is allowed with the above modifications. Consequently, the judgment and conviction imposed in C.A.No.69 of 2008, on the file of Additional Sessions Court / Fast Track Court No.III, Virudhachalam, confirming the conviction and sentence passed in C.C.No.2 of 2006, on the file of District Munsif cum Judicial Magistrate, Tittakudi, dated 13.08.2008, is set aside. Consequently, connected miscellaneous petition is closed.
13.07.2012 vs Index : Yes / No. Internet : Yes / No. C.S.KARNAN, J vs To 1.The Additional Sessions Court / Fast Track Court-III, Virudhachalam, Cuddalore District 2. The District Munsif cum Judicial Magistrate, Tittagudi. Cl.R.C. No.1104 of 2009 and M.P.No.2 of 2009 13.07.2012