P.Mylsamy vs M/S.Vintech Automation
2022 Latest Caselaw 14390 Mad

                                                                               Crl.R.C.No.136 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.136 of 2017
                                              Crl.M.P.No.1492 of 2017

                    P.Mylsamy                                                  ... Petitioner

                                                         Vs

                    M/s.Vintech Automation                                     ... Respondent

                    Prayer: Criminal Revision has been filed under Section 397 r/w 401
                    Crl.P.C., to aside the order of conviction and sentence passed by the III
                    Additional District and Sessions Judge, Coimbatore in C.A.No.10 of 2015
                    on 04.11.2016 and thereby confirming the order of conviction and sentence
                    passed by the Judicial Magistrate/Fast Track Court at Magisterial Level II
                    Coimbatore in C.C.No.466 of 2013 on 22.12.2014 convicting the
                    petitioner under Section 138 of Negotiable Instrument Act and for
                    sentencing him to under 1 year simple imprisonment and imposing a fine
                    of Rs.5,000/- in default to undergo 3 months simple imprisonment.

                                          For Petitioner : Mr.V.Jayachandran
                                          For Respondent: No Appearance




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                                                                                Crl.R.C.No.136 of 2017

                                                       ORDER

This revision arises against the judgment of the learned III

Additional District and Sessions Judge, Coimbatore, passed in

C.A.No.10/2015 on 04.11.2016.

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

the Negotiable Instruments Act in C.C.No.466/2013 on the file of the

learned Judicial Magistrate/Fast Track Court at Magisterial Level II,

Coimbatore. The prosecution case was that the petitioner issued three

cheques towards discharge of liability arising at the invoices raised by the

respondent for the goods supplied to the petitioner. The petitioner issued

three post dated cheques a total sum of Rs.4,00,114/- (Rupees Four Lakhs

One Hundred and Fourteen only) to the respondent pertaining to the

business transactions between the petitioner and the respondent. The

complainant presented the cheques for collection on 12.06.2013 and upon

the same having returned for the reason "funds insufficient", followed the

procedure under Section 138 of the Negotiable Instruments Act.

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3. Before the trial Court, the respondent examined M.Velumani as

P.W.1 and marked 19 exhibits. None were examined on behalf of the

defence and no exhibits were marked on the side of the petitioner.

4. On appreciation of evidence, the trial Court entered upon a

finding of conviction and sentenced the petitioner to undergo one year SI

and imposed a fine of Rs.5000/- (Rupees Five Thousand only) in default

to suffer three months SI. Against the same, the petitioner moved a Appeal

in C.A.No.10/2015, which came to be dismissed by the learned

III- Additional District Sessions Judge, Coimbatore.

5. Heard, Mr.V.Jayachandran learned counsel for the petitioner and

no representation 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.4,60,000/- (Rupees Four Lakhs

Sixty 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 on

account of the dishonour of the cheque, this Court is of the view that a

sum of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand 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 misellaneous petition is closed.

12.08.2022

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

To

1.III Additional District and Sessions Judge, Coimbatore.

2. Judicial Magistrate, Fast Track Court at Magistrate level II, Coimbatore

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SUNDER MOHAN,J.

dk

Crl.R.C.No.136 of 2017

12.08.2022

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