Madras High Court
Sri Krishna Electricals vs Sri Thirumurugan & Co on 2 December, 2021
Crl.R.C. No.437 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.12.2021
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.437 of 2014
Sri Krishna Electricals,
Rep.by Authorized Signatory,
Mr.Rajendiran, M/36 yrs.,
No.5, First Street, Kumaran Nagar East,
Tirupur Town, Tirupur District. ... Petitioner
Versus
Sri Thirumurugan & Co.,
Rep.by its Partner,
M.Kumar, M/42 yrs. S/o. Muthusamy,
No.126, Paramathi Road,
Namakkal. ... Respondent
Criminal Revision Petition filed under Section 397 and 401 of
Criminal Procedure Code, to set aside the conviction and sentence dated
27.02.2014 passed in Crl.A.No.6 of 2013 on the file of the Learned Principal
Sessions Judge, Namakkal, confirming the order passed in STC.No.205 of
2011, dated 04.01.2013, by the Learned Judicial Magistrate No.I, Namakkal
and acquit the petitioner.
For Petitioner : Mr.K.A.Mariappan
For Respondent : No Appearance
ORDER
This Criminal Revision is filed by the petitioner/accused, aggrieved
by the Judgment dated 04.01.2013, of the Learned Judicial Magistrate No.I,
Namakkal in STC.No.205 of 2011, thereby finding the petitioner guilty of the
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Crl.R.C. No.437 of 2014
offence under Section 138 of the Negotiable Instruments Act, 1881 and
imposing a punishment of imprisonment for a period of one year and to pay a
compensation to the complainant for the cheque amount of Rs.1,15,930/-
(Rupees One Lakh Fifteen Thousand Nine Hundred and Thirty only), which
was confirmed by the order dated 20.07.2014 of the Learned Principal Sessions
Judge, Namakkal in Crl.A.No.6 of 2013.
2.Today when the matter came up for hearing, Mr.K.A.Mariappan,
learned counsel for the petitioner by placing reliance on the typed set of papers
filed before this court, argued on the basis of documents which were not
produced before this Court and were not marked in the Trial. The first
document is the mortgage deed, executed in consideration of a sum of
Rs.9,50,000/- being the overdrawal of cash facility granted to him by
M/s.Dhanalakshmi Bank. The second document is the statement of accounts on
the relevant period viz., 1st February 2011 to 31st March 2011. By placing
reliance on the said two documents, he would submit that as on the dates when
the cheques were returned as dishonored, the overdrawal was availed by the
petitioner/accused only for the amount of Rs.7,15,930/-. Therefore, the cheques
were erroneously dishonored by the Bank. Further it is a vital and important
plea, which was not pleaded either before the Trial Court or before the First
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Crl.R.C. No.437 of 2014
Appellate Court, by mistake of the petitioner in not bringing the same to the
notice of his counsel. Unless and otherwise an opportunity is not granted to the
petitioner by remanding the matter back to the Trial Court and the same would
result in miscarriage of Justice.
3.Though notice to the respondent/complainant is served, but,
however, there is no appearance.
4.After considering the submissions made by the learned counsel for
the petitioner, it is seen that the said defence prima facie supported by the
documents on record, if found correct may be a valid defence. But, however if
one has to go by this defense, there can be no two opinion that the complainant
will be entitled for the cheque amount. Therefore when this Court posed the
question, the Learned Counsel for the petitioner would agree to deposit 50% of
the cheque amount, if an opportunity of re-trial being granted.
5.Considering the facts that (i) the ground of defence pleaded and (ii)
the object of the complainant in a private complaint under section 138 of
Negotiable Instruments Act being realizing the cheque amount, I am inclined to
grant one more opportunity to the petitioner/accused on a condition that the
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Crl.R.C. No.437 of 2014
petitioner shall deposit 50% of the cheque amount of Rs.58,000/- (Rupees Fifty
Eight Thousand only), within a period of four weeks from the date of receipt of
a copy of this order, to the credit of STC. No.205 of 2011 and the complaint
will be at liberty to withdraw the same. On such deposit, the Judgment of the
Learned Judicial Magistrate No.I, Namakkal in STC. No.205 of 2011, dated
04.01.2013 and the Judgment of the Learned Principal District Sessions Judge,
Namakkal in Crl.A. No.6 of 2013, dated 27.02.2014, shall stand set aside and
STC.No.205 of 2011 shall stand remitted back to the file of the Judicial
Magistrate No. 1, Namakkal, which shall be continued from the stage of
defence evidence, enabling the petitioner/accused to lead such evidence for the
defence pleaded before this Court and without being carried away by any of
the observations made by this Court, the Trial Court shall proceed with the trial
and determine the matter in accordance with the law.
6.It goes without saying that if the petitioner/accused failed to deposit
the aforesaid amount of Rs.58,000/-, within the four weeks time, the Criminal
Revision Case shall stand dismissed by confirming the conviction and sentence
ordered by the aforesaid Judgments.
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Crl.R.C. No.437 of 2014
7.With the above observation and direction, this Criminal Revision
Case is disposed off.
02.12.2021
Index : yes/no
Internet :yes
Speaking order
klt
To
1.The Learned Principal Sessions Judge, Namakkal.
2. The Learned Judicial Magistrate No.I, Namakkal.
https://www.mhc.tn.gov.in/judis
Crl.R.C. No.437 of 2014
D.BHARATHA CHAKRAVARTHY, J.
klt
Crl.R.C.No.437 of 2014
02.12.2021
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