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B.Suryakantham v. A.Kothandaramiah - Crl.RC.No.1880 of 2002  RD-TN 1176 (29 March 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 29.03.2007
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.R.C.No.1880 of 2002
B.Suryakantham .. Revision Petitioner/Complainant Vs.
A.Kothandaramiah .. Respondent/Accused Prayer: This Criminal Revision has been preferred under Section 397 and 401 of Cr.P.C., against the judgment dated 16.08.2002 in Crl.A.No.125 of 2002 on the file of the VI Additional District & Sessions Judge, Chennai. For Appellant : Mr.R.Thiagarajan
For Respondent : Mr.A.Abdhul Rahim
This Revision has been preferred against the judgment in C.A.No.125 of 2002 on the file of the VI Additional Sessions Judge, Chennai.
2. The complainant has preferred a private complaint under Section 200 of Cr.P.C., against the accused for an offence under Section 138 of the Negotiable Instrument Act, 1881, before the XVII Metropolitan Magistrate, Saidapet, Chennai. After recording the sworn statement of the complainant and after getting satisfied in respect of a prima facia case has been made out against the accused, the learned Judicial Magistrate has taken the private complaint on file as C.C.No.2035/2000 and on appearance of the accused copies under Section 207 of Cr.P.C., were furnished to the accused and when the offence was explained to the accused, he pleaded not guilty. On the side of the complainant P.W.1 to P.W.3 were examined and Ex.P.1 to P.10 were marked.
3. P.W.1 in his evidence would depose that he is the power agent of the complainant and Ex.P.1 is the deed of power. The accused had borrowed from the complainant a sum of Rs.50,000/- as loan and to discharge the said loan the accused had drawn a cheque for Rs.50,000/- on 30.3.1999 in Tamil Nadu Mercantile Bank, T Nagar Branch. Ex.P.2 is the said cheque. The cheque was presented in Andra Bank, T Nagar Branch, but the same was returned with an endorsement that there is no sufficient funds in the account of the drawer. Ex.P.3 is the memo and Ex.P.4 is the debit advice. On 11.10.1999 the complainant had sent a notice to the accused informing about the return of the cheque. Ex.P.5 is the postal receipt for having sent the notice by registered post. Ex.P.7 is the returned cover.
4. P.W.2 is the bank official of Andra Bank, T Nagar, wherein the complainant-Suryakantham, is having a savings bank account. P.W.2 would depose that on 27.9.1999 Ex.P.2-cheque was presented by the complainant in his bank, which was returned on the ground that there is no sufficient funds in the account of the accused.
5. P.W.3 is the Assitant Manager of the Mercantile Bank, T Nagar Branch. Ex.P.9 is the authorization letter given in favour of P.W.3 by the bank in which the accused is having current account. P.W.3 would depose that there was only a sum of Rs.9,635/57 available on 28.9.1999 at credit in the account of the accused and hence, Ex.P.2-cheque was dishonoured by the Bank on the ground that there is no sufficient fund in the account of the drawer. Ex.P.10 is the statement of accounts relating to the account of the accused.
6. When incriminating circumstances were put to the accused, the accused denied his complicity with the crime. After going through the oral and documentary evidence adduced before the trial Court, the learned trial judge has come to the conclusion that an offence under Section 138 of the Negotiable Instrument Act, has been proved beyond any reasonable doubt and accordingly convicted and sentenced the accused under Section 138 of the Negotiable Instruments Act to undergo 3 months RI and also slapped a fine of Rs.1000/- with default sentence. Aggrieved by the findings of the learned XVII Metropolitan Magistrate, Chennai, the accused preferred an appeal before the VI Additional Sessions Judge, City Civil Court, Chennai, in C.A.No.125 of 2002. After giving due deliberations to the advocates on both sides and after scanning the evidence both oral and documentary, the learned first appellate Judge has partly allowed the appeal and modified the sentece to that of a sentence till the raising of the court instead of 3 months RI, but conformed the fine imposed by the trial Court. Aggrieved by the findings of the learned first appellate Court, the complainant has preferred this revision.
7. Now the point for determination in this revision is whether the conviction and sentence in C.A.No.125 of 2002 against the accused is liable to be set aside for the reasons stated in the memorandum of revision?
8.The Point:- When the matter was taken up for hearing the learned Counsel Mr.R.Thiagarajan would contend that without any rhyme or reasoning the learned trial judge has reduced the sentence of 3 months RI awarded by the trial Court against the accused to that of a sentence till the raising of the Court. The learned counsel would contend that after concurred with the findings of the learned trial Judge in the aspect of conviction the learned first appellate Judge without any cause has reduced the sentence from 3 months RI to till the raising of the Court. Admittedly the cheque for Rs.50,000/- was drawn by the accused in favour of the complainant. P.W.1, the complainant, has proved the borrowing of Rs.50,000/- by the accused through her oral evidence. Only to discharge the said loan of Rs.50,000/- Ex.P.2-cheque was drawn by the accused for Rs.50,000/- on the same date of borrowing of the debt amount. The defence taken by the accused in this case is that Ex.P.2-cheque was not drawn to discharge a subsisting debt. The burden is on the accused to prove that Ex.P.2-cheque was not drawn by him for a subsisting debt of Rs.50,000/- as alleged by the complainant in the complaint. It is the definite case of the complainant that only after borrowing Rs.50,000/- from the complainant, the accused had drawn the cheque for Rs.50,000/- in favour of the complainant and when the said cheque was presented in the bank, the same was dishonored. As contemplated under Section 138(b) of the Negotiable Instruments Act, the claimant had issued a notice informing about the dishonour of the cheque. But the said notice was retruned by the accused as refused. Under such circumstances, the presumption should be that there was a service of notice on the accused. While reducing the sentence from 3 months RI to that of a sentence till raising of the Court, the first appellate Court has not assigned any reason for the same in its judgment. But on the other hand the first appellate Court has modified the sentence by imposing a fine of Rs.1000/- with default sentence. As held in 2004(2) Scc 235 (Goa Plast (P) Ltd., Vs. Chico Ursula D'Souza) and also in 2004 (11) SCC 399 (Nayak Ramesh Chandra Vs. State of Gujarat), I am of the view that instead of imposing a fine of Rs.1000/- to met the ends of justice as provided under Section 138 of the Negotiable Instruments Act, twice the amount of the cheque is to be awarded as compensation under Section 357 (3) of Cr.P.C., to the complainant. Point is answered accordingly.
9. In the result, the revision petition is allowed and the judgment in C.A.No.125 of 2002 on the file of the VI Additional Sessions Judge, Chennai, is set aside and the accused is convicted and sentenced under Section 138 of the Negotiable Instruments Act to pay a compensation of Rs.1,00,000/- (Twice the amount of the Cheque), to the complainant in default to undergo three months SI. ssv
1.The VI Additional Sessions Judge,
2.The Principal Sessions Judge,
3.The XVII Metropolitan Magistrate,
4.The Chief Judicial Magistrate,
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