Madras High Court
S.Padmanaban vs C.Subramaniam on 2 December, 2021
Crl.O.P.No.22071 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.12.2021
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.22071 of 2021
and
Crl.M.P.No.11984 of 2021
S.Padmanaban ... Petitioner
Vs.
C.Subramaniam ... Respondent
PRAYER: Criminal Original Petition has been filed under Section 482
of the Code of Criminal Procedure to set aside the order dated
01.11.2021 in CMP.No.1879 of 2021 in C.A.No.98 of 2021 on the file of
the Principal Session Judge at Tiruppur and to direct the Hon'ble
Principal Session Judge at Tiruppur to suspend the sentence, till disposal
of C.A.No.98 of 2021.
For Petitioner : Mr.K.Myilsamy
ORDER
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Crl.O.P.No.22071 of 2021
The petitioner, who is the accused in C.C.No.160 of 2016 for
offence under Section 138 of the Negotiable Instruments Act, which was
filed by the respondent/complainant, was convicted by the Judicial
Magistrate, Fast Track Court at Magisterial Level, Tiruppur, by
judgement dated 05.10.2021, against which, the petitioner filed an appeal
in C.A.No.98 of 2021 and also filed suspension of sentence petition in
Cr.M.P.No.1879 of 2021 before the Principal Sessions Judge, Tirupur and
the Principal Sessions Judge, Tirupur, by an order dated 01.11.2021,
finding that the petitioner was not present before the trial Court at the
time of pronouncement of judgment, issued a non bailable warrant and
the same is pending. In view of the same, the lower appellate Court was
not inclined to suspend the sentence.
2.The gist of the case is that on 21.05.2014, for the business
purpose, Rs.13,00,000/- was taken as loan from the
respondent/complainant by the petitioner. In discharge of the said
liability, the petitioner executed a promissory note and cheque for a sum
of Rs.13,00,000/-. On 05.10.2015, the cheque was deposited in State
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Crl.O.P.No.22071 of 2021
Bank of Thiruvangoor, Tiruppur Branch, in the account of the
respondent/complainant. The said cheque was returned on 06.10.2015
for the reasons that “funds insufficient”. Thereafter, statutory notice
issued on 31.10.2015, which was received by the petitioner/accused on
02.11.2015 and a reply was sent on 01.12.2015 with some allegations,
which was not acceptable and thereafter, the case was filed. During trial,
the complainant was examined himself as PW1 and Exs.P1 to P6 have
been marked. The complainant PW1 was cross examined by the accused.
Finally, the trial Court convicted the accused and sentenced him to
undergo six months simple imprisonment and directed the accused to pay
a sum of Rs.13,00,000/- as compensation to the respondent/complainant.
3.The contention of the learned counsel for the petitioner/accused
is that the respondent /complainant has got no source of income to lend a
sum of Rs.13,00,000/- as loan and he had not produced any document to
show that he has got resources to lend the money as loan. He further
submitted that the petitioner took a loan of Rs.1.5 lakhs from one
Rajasekar, for which, the petitioner signed a blank cheque and pronote,
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Crl.O.P.No.22071 of 2021
which handed over to the said Rajasekar. The said Rajasekar had handed
over the cheque and pronote to the respondent /complainant, who filled
up the same and made a claim, the petitioner falsely implicated in this
case. Further, the respondent/complainant filed a case before the Judicial
Magistrate Court No.II, Peermedu, Kerala, in STS No.393 of 2016. The
competent Court in Kerala finding that the complainant has got no means
to lend the money as loan and hence, dismissed the complaint on merits.
4.The petitioner earlier filed a 311Cr.P.C. petition before the trial
Court seeking to recall PW1 and to mark certain documents and also to
draw the attention of PW1 about the Kerala case. The trial Court
dismissed the same, not entertained 311 Cr.P.C. petition and immediately,
rendered the judgment. He further submitted that the trial Court, in its
judgement, had not discussed these facts and merely, proceeded to invoke
Section 139 of NI Act, finding that the petitioner not dislodged the initial
presumption, the petitioner has got a strong case in appeal. The trial
Court dismissed the suspension of sentence petition on the ground that
NBW is pending against the petitioner and the petitioner not appeared to
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Crl.O.P.No.22071 of 2021
receive the judgment. Further, being a summons case, judgment can be
rendered even in absence of the accused. Hence, the appearance of the
accused is not imperative, by his absence, he has not stalled the
proceedings of the trial.
5.Considering the submissions and on perusal of the materials, it is
seen that the petitioner in his reply admitted that he had taken loan of
Rs.1.5 lakhs from Rajasekar and his contention is that the blank cheque
had been filed up and this matter to be decided only in the appeal. As per
Section 143A Cr.P.C., 20% of the amount to be paid as compensation to
the complainant.
6.In view of the same, the petitioner is directed to deposit 20% of
the cheque amount of Rs.13,00,000/- i.e. Rs.2,16,000/- to the credit of
C.C.No.160 of 2016 before the trial Court. The respondent complainant
can withdraw the deposited amount by filing an affidavit subject to
outcome of the appeal.
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Crl.O.P.No.22071 of 2021
7.With the above direction, the sentence of six months
imprisonment imposed on the petitioner is hereby suspended.
Accordingly, the criminal original petition is allowed. Consequently,
connected miscellaneous petition is closed.
Index: Yes/No
Internet: Yes/No 02.12.2021
sms
To
1.The Principal Sessions Judge,
Tiruppur.
M.NIRMAL KUMAR, J.
sms
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22071 of 2021
Crl.O.P.No.22071 of 2021
and
Crl.M.P.No.11984 of 2021
02.12.2021
https://www.mhc.tn.gov.in/judis
