Crl.RC.No.1329 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE:22.09.2022
CORAM:
THE HON'BLE Mr. JUSTICE SUNDER MOHAN
Crl.R.C.No.1329 of 2019
K.Geetha ...Petitioner
Versus
Valasarajan, ... Respondent
PRAYER : Criminal Revision petition filed under Sections 397 and 401
Criminal Procedure Code, to set aside the Judgment of conviction dated
09.08.2019 in C.A.No.129 of 2018, on the file of the learned II Additional
District and Sessions Judge, Poonamallee, Thiruvallur District, confirming
the order of conviction and sentence dated 10.05.2018 in S.T.C.No.351 of
2016 on the file of the learned Judicial Magistrate, Fast Track Court
Magisterial Level No.II, Poonamallee.
For Petitioner : Mr.G.K.Thamizharasan
Legal Aid Counsel
For Respondent : M/s.D.J.Venkatesan
Emily Venkatesan
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https://www.mhc.tn.gov.in/judis
Crl.RC.No.1329 of 2019
ORDER
This revision arises against the judgment of the learned II Additional District and Sessions Judge, Poonamallee passed in C.A.No.129/2018 on 09.08.2019.
2. The petitioner faced prosecution for the offence under Section 138 of the Negotiable Instruments Act in S.T.C.No.351/2016 on the file of the learned Fast Track Court, Magisterial Level No.II, Poonamallee. The prosecution case is that the petitioner had borrowed a sum of Rs.4,00,000/- (Rupees Four Lakhs only) from the Respondent in a certain period of time to meet her urgent family needs. Towards discharge of the said debt, the petitioner issued a post dated cheque drawn on Indian Bank Pattabiram Branch for a sum of Rs.3,00,000/- (Rupees Three Lakhs only). The complainant presented the cheque for collection and upon the same having returned for the reason “Funds insufficient”, issued statutory notice and filed a complaint under Section 138 of the Negotiable Instruments Act.
3. Before the Trial Court, the respondent examined himself as P.W.1 and marked eight exhibits. The petitioner examined as D.W.1 and three exhibits were marked on her side.
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4. The trial Court rendered a finding of conviction and sentenced the petitioner to undergo twelve months S.I and directed to pay a compensation of Rs.3,00,000/- (Rupees Three Lakhs only) within a period of four months and in default to undergo for further period of four weeks S.I for the offence under Section 138 of Negotiable Instruments Act. Against the same, the petitioner moved an Appeal in C.A.No.129/2018, which came to be dismissed by the learned II Additional District and Sessions Judge, Poonamalle.
5. Heard, Mr.G.K.Tamizharasan, Legal Aid Counsel for the Petitioner and Mr.D.J.Venkatesan, learned counsel for the Respondent.
6.The learned counsel for the Petitioner submitted that the cheque was only given as security for the loan taken by the husband of the Petitioner. The Petitioner has no relationship with the Complainant. The Petitioner also had requested the learned Magistrate to send the signature for comparison by an expert which was negatived by the Courts below.
7.The learned counsel for the Respondent submits that all the contentions have been considered by the Courts below and the contentions 3/ 9 https://www.mhc.tn.gov.in/judis Crl.RC.No.1329 of 2019 were rightly negatived by the Courts. There is no perversity will warranting interference by this Court in a revision.
8.On perusal of the judgement of the courts below, we find that the respondent had established the foundational facts required for drawing the presumption under section 139 of the NI Act. The Petitioner has not dislodged the said presumption either by cross examination or by adducing evidence on her side. The defence of the petitioner that the cheque was not issued in discharge of debt or liability to the respondent has not been established by the petitioner. Considering the facts and circumstance of the case this Court finds that the Courts below have considered the evidence in the proper perspective and found the petitioner/accused guilty of the punishable offence under Section 138 of NI Act. The Petitioner has not rebutted the statutory presumption by adducing acceptable evidence or by raising down in the evidence of the complainant by cross examination. The finding of the Courts below cannot be faulted and no interference is called for in this revision.
9. However, this Court is of the view that the sentence imposed on the petitioner can be modified, keeping in mind that the proceedings 4/ 9 https://www.mhc.tn.gov.in/judis Crl.RC.No.1329 of 2019 under Section 138 of NI Act is primarily compensatory in nature than being punitive as held by the Hon'ble Apex Court in several decisions including in K.A.Abbas H.S.A vs. Sabu Joseph and another reported in (2010) 6 SCC 230 and in Meters and Instruments Private Limited and Another vs. Kanchan Mehta reported in (2018) 1 SCC 560. Further the Hon'ble Apex Court in Kumaran vs. State of Kerala and another reported in (2017) 7 SCC 471 considered the question as to whether the compensation can be recovered in the manner provided under Section 421 of Cr.P.C, even if the accused has undergone the default sentence for non payment of compensation. The Honourable Apex Court after considering all the relevant provisions and its earlier judgements held as follows:-
“...
27...Despite this Section 357(3), Section 431, Section 70 IPC and Section 421 (1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421 (1). This would, however, be without the necessity for recording any special reasons. This is because Section 421 (1) proviso contains the disjunctive “or” following the recommendation of the Law Commission, that the proviso to old Section 386 (1) should not be a bar to the issue of a warrant for levy of fine, even when a 5/ 9 https://www.mhc.tn.gov.in/judis Crl.RC.No.1329 of 2019 sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso of Section 421 (1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 35 (1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357 (3). ...”
10. The Cheque is of the year 2015 and since 7 years have elapsed, this Court considers that the compensation can be enhanced from Rs.3,00,000/- (Rupees Three Lakhs only) to Rs.4,00,000/- (Rupees Four Lakhs only). This enhancement can be in lieu of the sentence of imprisonment. Accordingly, this Court while confirming the finding of conviction recorded by the Courts below reduces the sentence imposed on the petitioner from twelve months to imprisonment till the rising of Court and direct the petitioner to pay a sum of Rs.4,00,000/- (Rupees Four Lakhs Only) as compensation to the Respondent within a period of six (6) weeks from the date of receipt of copy of this order failing which the petitioner shall suffer 3 Months S.I.
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11.The petitioner shall surrender before the learned Magistrate on or before 20.10.2022 to suffer the sentence of imprisonment till rising of the Court, failing which the learned Magistrate shall take steps to secure the presence of the petitioner for serving the above said sentence. It is also made clear that in the event of the petitioner not paying the compensation amount, the respondent shall be at liberty to recover the compensation amount in the manner known to law, even if the petitioner has suffered default sentence for non payment of compensation amount.
12.It is submitted that the petitioner has so far deposited Rs.1,50,000/- in the credit of STC No.351 of 2016 on the file of Fast Track Court, Magisterial Level No.II, Poonamalle, Thiruvallur District at varrious stages. The Respondent is at liberty to withdraw the said sum on filing appropriate petition before the Fast Track Court, Magisterial Level No.II, Poonamalle, Thiruvallur District. The Petitioner should pay the balance sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) awarded as compensation within a period of six (6) weeks failing which she has to suffer the default sentence as stated above. 7/ 9 https://www.mhc.tn.gov.in/judis Crl.RC.No.1329 of 2019
13.With the above modifications, Criminal Revision is dismissed.
22.09.2022 Index : Yes/No Internet : Yes/No Speaking Order/Non Speaking Order dk To
1.The II Additional District and Sessions Judge, Poonamallee, Thiruvallur District,
2.The Judicial Magistrate, Fast Track Court Magisterial Level No.II, Poonamallee. 8/ 9 https://www.mhc.tn.gov.in/judis Crl.RC.No.1329 of 2019 SUNDER MOHAN, J.
dk Crl.R.C.No.1329 of 2019 22.09.2022 9/ 9 https://www.mhc.tn.gov.in/judis