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S.Ramanujam v. A.Akilan - Crl. RC No.835 of 2005  RD-TN 1192 (29 March 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl. RC No.835 of 2005
S.Ramanujam .. Petitioner Vs
A.Akilan .. Respondent This Revision is filed against the order passed by VII Additional Sessions Judge,City Civil Court, Chennai in C.A.No.429 of 2004 dated 11.4.2005 against the Judgment passed by XVIII Metropolitan Magistrate, Saidapet in C.C.No.7034 of 2002 dated 20.10.2004. For petitioner : Mr.A.Narayanan For respondent : Mr.Philip Ravindran Jesudoss. O R D E R
This revision has been preferred against the Judgment in C.A.No.429 of 2004 on the file of the Court of VII Additional Sessions Judge,City Civil Court, Chennai.
2. The short facts of the case relevant for the purpose of deciding this revision are as follows: The complainant had preferred a complaint under Section 200 Cr.P.C. for an offence under Section 138 of the Negotiable Instruments Act,1881. On 12.5.2002, the accused had issued two cheques bearing Cheque No.442970 for a sum of Rs.25,000/- and another cheque bearing Cheque No.442971 for a sum of Rs.15,000/- in favour of the complainant in order to discharge the earlier existing debt. When those cheques were presented in Central Cooperative Bank, Karaneeswaranpet Branch, Mylapore, Chennai, the cheques were returned with an endorsement that there was no sufficient funds in the account of the accused. Hence the complainant had issued a notice to the accused on 19.6.2002 .In spite of the said notice, the accused had neither chosen to send any reply nor paid any amount towards the debt. Hence the complaint.
3. The said complaint was taken on file by the leared XVIII Metropolitan Magistrate, Saidapet, Chennai in C.C.No.7034/2002 and on appearance of the accused on summons, the learned trial Judge has furnished copies under Section 207 Cr.P.C. to the accused and when the offence was explained to the accused, they pleaded not guilty.
4. Before the trial Court, on the side of the complainant, P.Ws 1 to 3 were examined and Exs P1 to P13 were marked. 4a)P.W.1 is the complainant who would depose that the accused had borrowed a sum of Rs.40,000/- in connection with his business and he had drawn two cheques on 12.5.2002 for a sum of Rs.25,000/- and another cheque for a sum of Rs.15,000/- respectively but when those two cheques were presented in the bank, they were returned with an endorsement that there was no sufficient funds in the account of the accused. 4b) P.W.2 is the Manager of Central Cooperative Bank, Karaneeswaranpet Branch. According to P.W.2 both Exs P1 and P2 cheques were presented in the said bank on 6.6.2002 for encahsment and on the same day, both the cheques were forwarded to Indian Overseas Bank for collection . But both the cheques were dishonoured on 7.6.2002 on the ground that there was no sufficient funds in the account of the accused. Ex P4 is the debit advice.Ex P8 is the cheque returned register kept in the bank. 4c)P.W.3 is the passing officer of Indian Overseas Bank, East Mada Street, Mylapore Branch. Ex P9 is the authorisation letter given to P.W.3 for adducing evidence on behalf of the Bank. According to P.W.3 both the cheques Exs P1 and P2 were sent to Indian Overseas Bank, Mylapore Branch for collection but the same were returned with an endorsement that there was no sufficient funds in the account of the accused to honour the same. Ex P10 is the statement of account for current Account No.5754 of the accused.
5. When incriminating circumstances were put to the accused, the accused would totally deny his complicity with the crime.
6. The accused has examined two witnesses on his side but he has not marked any document on his side. The accused has examined himself as D.W.1 and one Mr.Prabhakaran was examined as D.W.2. After going through the oral and documentary evidence, the learned trial Judge has held that an offence under Section 138 of the Negotiable Instruments Act,1881 has been made out against the accused and accordingly, he has convicted and sentenced to undergo six months rigorous imprisonment and also directed him to pay the compensation of Rs.40,000/- to the complainant under Section 357(3) of Cr.P.C. with default sentence. Aggrieved by the findings of the learned trial Judge, the accused had preferred an appeal in C.A.No.429 of 2004 before VII Additional Judge, City Civil Court, Chennai who after due deliberation to the rival submissions of the parties and after going through the oral and documentary evidence let in before the trial Court, has confirmed the judgment of the trial Court in respect of conviction but modified the sentence to that of the sentence till the rising of the Court and a fine of Rs.5,000/- with default sentence. Aggrieved by the findings of the learned first appellate Judge, this revision has been preferred by the complainant.
7. Now the point for determination in this revision is whether the findings of the learned first appellate Judge in C.A.No.429 of 2004 is liable to be set aside for the reasons stated in the memorandum of revision?.
8. The Point: Both the Courts below have concurrently held that an offence under Section 138 of the Negotiable Instruments Act 1881 has been attracted against the accused and the complainant has proved the guilt of the accused beyond any reasonable doubt to warrant conviction under Section 138 of the Negotiable Instruments Act 1881. But the learned first appellate Judge, has observed at paragraph 8 of his Judgment that subsequent to the conviction, the accused had paid a sum of Rs.40,000/-, the cheque amount to the complainant on 7.4.2005 which was received by the counsel for the complainant and an endorsement has been made to that effect in the grounds of appeal itself before the first appellate Court. Relying on K.L.Kunjappan-vs- Rabeek(2002 Supreme Court Cases,1884),Harbajan Singh-vs- State of Delhi(2004 Supreme Court cases(crl) 1141), and Jeevan Bose alias Gobikalachari-vs-State of Kerala(2004 Supreme Court Cases(crl)869), the learned first appellate Judge has reduced the sentence from six months rigorous imprisonment awarded by the trial Court to the sentence till the rising of the Court and also levied a fine of Rs.5,000/- with default sentence.
9. A perusal of a dictum in K.L.Kunjappan-vs- Rabeek(2002 Supreme Court Cases,1884) will go to show that the subsequent events shall be taken note of by the Court in awarding the sentence. In the above said dictum , the accused had paid money due under the cheque after conviction which was received by the complainant. Under such circumstances, the sentence awarded by the trial Court was reduced to the period already undergone by the Honourable Apex Court . The same yardstick will be applicable to the present facts of the case also. Here also, after conviction, the accused has paid a sum of Rs.40,000/- the amount awarded as compensation by the trial Court on 7.4.2005 to the complainant and to that effect an endorsement has also been made before the first appellate Court in the memorandum of the said appeal itself. So once the complainant has received the compensation amount, after conviction, then some leniency must be shown on the sentence as done by the Honourable Apex Court in K.L.Kunjappan-vs- Rabeek(2002 Supreme Court Cases,1884). So following the above principle of law laid down in the above said ratio decidendi, the learned first appellate Court has also modified the sentence alone from six months rigorous imprisonment to the sentence till rising of the Court and also levied a fiine of Rs.5,000/- with default sentence.
10. As far as , the levy of fine , there is no revision or appeal preferred by the accused. Under such circumstances, I do not find any reason to interfere with the well considered Judgment of the first appellate Court which does not warrant any interference from this Court. Point is answered accordingly.
11. In the result, the revision is dismissed ,confirming the Judgment in C.A.No.429 of 2004 on the file of the Court of VII Additional Sessions Judge, City Civil Court, Chennai. The accused shall appear before the trial Court on 13.04.2007 at 10.30a.m., to undergo the sentence of till rising of the Court, if so far he has not served out the said sentence. sg
1. The VII Additional Sessions Judge,
City Civil Court,
2. -do- the Prl.Sessions Judge,
3. The XVIII Metropolitan Magistrate,
4. -do- The Chief Metropolitan Magistrate, Egmore,
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