S.Palanisamy vs S.Kumar
2022 Latest Caselaw 14384 Mad

                                                                              Crl.R.C.No.907 of 2017



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED 12.08.2022

                                                     CORAM

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                               Crl.R.C.No.907 of 2017
                                       and Crl.M.P.Nos.8533 and 8534 of 2017

                    S.Palanisamy                                              ... Petitioner

                                                        Vs

                    S.Kumar                                                   ... Respondent

                    Prayer: Criminal Revision has been filed under Section 397 r/w 401
                    Crl.P.C.,to call for the records set aside the judgment dated 15.02.2017
                    made in C.A.No.136 of 2016 on file of II- Additional District Sessions
                    Judge, Erode, confirming in S.T.C.No.257 of 2013 dated 20.05.2016 on the
                    file of the District Munsif cum Judicial Magistrate, Kodumudi, Erode
                    District convicting the petitioner under Section 138 of Negotiable
                    Instruments Act and imposing the sentence of six month simple
                    imprisonment and to pay amount Rs.5,00,000/- on default of payment of
                    the amount one month simple imprisonment.

                                         For Petitioner : Mr.D.Balachandran
                                         For Respondent: Mr.M.Guruprasad



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                                                                                 Crl.R.C.No.907 of 2017

                                                        ORDER

This revision arises against the judgment of the learned II Additional

District Sessions Judge, Erode, passed in C.A.No.136/2016 on 15.02.2017.

2. The petitioner faced prosecution for offence under Section 138 of

the Negotiable Instruments Act in S.T.C.No.257/2013 on the file of the

District Munsif cum Judicial Magistrate, Kodumudi, Erode. The

prosecution case was that the petitioner borrowed a sum of Rs.5,00,000/-

(Rupees Five Lakhs only) from the respondent on 05.11.2012 to meet his

family expenses, agreeing to repay the said amount. Towards discharge of

the said debt, the petitioner issued a postdated cheque drawn on

Corporation Bank, Pallipalayam, Erode in a sum of Rs.5,00,000/- (Rupees

Five Lakhs only). The complainant presented the cheque for collection on

28.01.2013 and upon the same having returned for the reason "funds

insufficient", followed the procedure under Section 138 of the Negotiable

Instruments Act.

3. Before the trial Court, the respondent examined himself and

marked 5 exhibits. None were examined on behalf of the defence and no

exhibits were marked on the side of the petitioner.

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4. The trial Court rendered a finding of conviction and sentenced

the petitioner to undergo 6 months S.I and to pay a compensation of

Rs.5,00,000/- (Rupees Five Lakhs only) in default to suffer one month SI.

Against the same, the petitioner moved an Appeal in C.A.No.136/2016,

which came to be dismissed by the learned II- Additional District Sessions

Judge, Erode.

5. Heard, Mr.G.Balachandran, learned counsel for the petitioner and

Mr.M.Guruprasad, learned counsel for the respondent.

6.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

any evidence on his 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. Therefore, this Court finds no reason to

interfere with the findings of the Courts below.

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7.The learned counsel for the petitioner submitted that the petitioner

was unable to make payment in view of his poor financial condition and

prayed for modification of sentence.

8.This Court is of the view that the sentence imposed on the

petitioner can be modified, keeping in mind that the proceedings 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.

9.Accordingly, this Court while confirming the finding of conviction

recorded by the Court's below alters the sentence imposed on the petitioner

to one directing him to pay a fine of Rs.5,10,000/- (Rupees Five Lakhs Ten

Thousand only). In the event of the petitioner failing to do so, he shall

suffer three months S.I. Since the respondent has suffered a loss of the

cheque amount a sum of Rs.5,00,000/- (Rupees Five Lakhs only) shall be

paid to the respondent from the fine recovered from the petitioner.

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10.With the above directions, Criminal Revision is disposed of.

Consequently, the connected miscellaneous petitions are closed.

12.08.2022

Index : Yes/No Internet : Yes/ No Speaking order / Non Speaking order dk

To

1.II- Additional District Sessions Judge, Erode,

2.District Munsif cum Judicial Magistrate, Kodumudi, Erode.

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SUNDER MOHAN,J.

dk

Crl.R.C.No.907 of 2017 and Crl.M.P.Nos.8533 and 8534 of 2017

12.08.2022

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