Madras High Court
T. Moorthy vs M/S.Bloom Electronics (P) Ltd on 28 October, 2021
Crl.R.C.No.430 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2021
CORAM:
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.430 of 2015
and
M.P.No.3 of 2015
T. Moorthy .. Petitioner
Vs.
M/s.Bloom Electronics (P) Ltd.,
Represented by its Accountant
M. Raju .. Respondent
Prayer : Petition filed under Section 397 & 401 of the Criminal Procedure
Code, to call for the records in C.A.Nos.45 of 2013 & 114 of 2013,
respectively on the file of learned V Additional District Sessions Judge,
Coimbatore and set aside the order dated 09.02.2015 confirming the
conviction and the sentence passed by the learned Judicial Magistrate, Fast
Track Court, Level-II, Coimbatore in STC.Nos.188/2012 & 201/2012,
respectively (STCs.822 & 670/09-JM.No.7, Coimbatore) respectively by a
judgments dated 26.03.2012 & 29.07.2013 respectively.
1/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.430 of 2015
For Petitioner : Mr. H. Rajasekar
For Respondent : Mr. R. Babu
ORDER
The matter is heard through "Video Conference".
2. Convicted accused is the revision petitioner herein.
3. The respondent herein filed complaint under Section 200 of
Cr.P.C., to prosecute the accused for the offence under Section 138 of
Negotiable Instruments Act.
4. This criminal revision petition is filed against the order passed
by V Additional District and Sessions Court, Coimbatore in C.A.No.45 of
2013 by an order dated 09.02.2015, confirming the conviction under Section
138 of Negotiable Instruments Act rendered by the learned Judicial
Magistrate, Fast Track Court at Magisterial Level-II, STC No.188/2012
(STC.822/09-JM.No.7, Coimbatore) dated 26.02.2013 and affirming the
sentence of Simple imprisonment for six months and a fine of Rs.3,000/- in
default, shall undergo simple imprisonment for one month.
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Crl.R.C.No.430 of 2015
5. The brief facts of this case is that the petitioner is a customer of
the respondent who is a dealer in computer accessories having credit
dealings with the respondent. As per the accounts maintained by the
respondent in the regular course of business the petitioner is liable to pay a
sum of Rs.4,93,779/-. As such the petitioner has issued a cheque for
Rs.4,50,000/- and the respondent presented the cheque on 04.06.2009, on
its dishonor on 05.06.2009, the petitioner then requested the respondent to
represent, accordingly, on funds in the drawer's account. The respondent
issued the statutory notice on 15.10.2009.
5(i) The contention of the petitioner is that he was dealing with the
respondent company for the past 5 years and the usual practice is to give a
cheque and get the goods in the morning and on the same day evening cash
would be paid and the cheque would be returned to the petitioner.
5(ii) Even after payment of cash this cheque was not returned on the
same days and it was requested that the next day chque would be returned to
the petitioner, the cheque was issued as security and was not intended to be
deposited in bank.
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Crl.R.C.No.430 of 2015
6. The respondent was examined as the sole witness as P.W.1 and
marked Exs.P1 to P6. The petitioner examined himself as D.W.1 and his
wife was examined as D.W.2. After going through the evidence on record,
the learned trial Magistrate held the petitioner guilty as complained of under
Section 138 of Negotiable Instruments Act and sentenced the petitioner and
the appellate Court also continued the conviction and the sentence and
hence, the revision.
7. The learned counsel for the revision petitioner would contend
that the trial Court has committed an error in giving the statutory
presumption in favour of the respondent.
8. Heard, the learned counsel for the respondent.
9. On perusal of the documents filed by the respondent, it is seen
that the minutes extract and authorisation letter are Ex.P1. The ledger
account pertaining to the accused for the period 01.04.2008 to 31.03.2009 is
Ex.P2. The original cheque dated 16.04.2009 for Rs.4.50 lakhs of Karur
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Crl.R.C.No.430 of 2015
Vysys Bank with No.180343 is Ex.P3. Return memo dated 07.10.2009 is
Ex.P4. Legal notice dated 15.10.2009 with two postal receipts is Ex.P5.
Two acknowledgment cards are Ex.P6 series. With this complainant side
evidence was closed.
10. During the cross examination of P.W.1, there is a signature in
the cheque and issuance of cheque by the revision petitioner are not disputed
and hence, both the Courts below has rightly came to the conclusion that the
respondent/private complainant is entitled to statutory presumption under
Section 138 of Negotiable Instruments Act including the existence of legally
enforceable debt.
11. The suggestive case of the defence is that it is an usual process
to give a cheque and get the goods in the morning and on the same day
evening, cash would be paid and the cheque would be returned to the
accused. However, even after payment of cash, the petition-cheque was not
returned on the same day and when it was requested, they said the next day,
the cheque would be returned. However, without doing so, notice has been
sent by complainant company which returned in filing by case under
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Crl.R.C.No.430 of 2015
Negotiable Instruments Act. The wife of the revision petitioner was
examined as D.W.2.
12. Admittedly, both D.W.1 and D.W.2, would state that the cheque
was issued for the proprietrix of the complainant company, it was duly
signed and these facts are not disputed. Ex.P2 is the ledger book pertaining
to the period 01.04.2008 to 31.03.2009 to show that the respondent/accused
has taken goods from the private complainant and in due of
Rs.4,93,779.98/- and hence, the existing legally enforceable debt is
established and hence, both the Courts below has rejected the suggestive
case of the defence.
13. After perusing the evidence of D.W.1 and D.W.2 though, they
say that they have paid the amount, no receipt has been found.
14. On the contrary, the private complainant has filed Ex.P2 to
show the transaction between the parties and the amount due by the revision
petitioner/accused.
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Crl.R.C.No.430 of 2015
15. It is mentioned in the regular course of business within Section
35 of Indian Evidence Act and hence, I find that the private complainant has
proved the transaction between the parties and as per Ex.P2, it is clearly
demonstrates the pre-existence of legal enforceable debt and cheque has
been issued and the cheque has been issued from the account of the revision
petitioner/accused and signature has not been disputed and hence, I find that
on the cheque having been returned as insufficient funds, as could be seen
from Ex.P4/Return memo and legal notice has been issued. The conviction
passed by both the Courts below does not warrant any interference.
Accordingly, the order of conviction is hereby by confirmed.
16. On the point of quantum of sentence, both the parties heard.
17. Taking into consideration, the money involved in the amount, I
find that the period of sentence be reduced from six months to three months
and the fine amount as awarded by the trial Court is hereby confirmed.
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Crl.R.C.No.430 of 2015
18. Accordingly, the criminal revision case is partly allowed to the
limited extent as indicated above. Consequently, connected miscellaneous
petition is closed.
28.10.2021
AT
Index :Yes/No
Internet :Yes/No
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.430 of 2015
To
1.The V Additional District Sessions Judge, Coimbatore.
2.The learned Judicial Magistrate, Fast Track Court, Level-II,
Coimbatore.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.430 of 2015
RMT.TEEKAA RAMAN,J.,
AT
Crl.R.C.No.430 of 2015 and
M.P.No.3 of 2015
28.10.2021
https://www.mhc.tn.gov.in/judis
