Sakthivel vs Dhandapani
2022 Latest Caselaw 865 Mad

                                                                                  CRL.R.C.No.24 of 2015


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated : 20.01.2022

                                                         CORAM :

                           THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                    Crl.R.C.No.24 of 2015
                                                             and
                                                      M.P.No.1 of 2015


                     Sakthivel
                     S/o Arjunan                                                ... Petitioner

                                                            Vs.

                     Dhandapani
                     S/o.Rajaram                                                ... Respondent


                     Prayer: Revision petition filed under Section 397 r/w 401 of Cr.P.C. to
                     set aside the conviction and sentence made in Criminal Appeal No.129 of
                     2012 dated 21.10.2012 on the file of the I             Additional District and
                     Sessions Judge, Coimbatore in confirming the judgment made in
                     C.C.No.25 of 2010 dated 15.02.2012 on the file of the learned Judicial
                     Magistrate No.II, Comibatore.


                                   For Petitioner       : Mr.Sasikumar
                                                           Legal Aid Counsel

                                   For Respondent :     No appearance

                     1/9
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                                                                                 CRL.R.C.No.24 of 2015


                                                       ORDER

(The case has been heard through video conferencing) This Criminal Revision Case No.24 of 2015 is filed by the

petitioner / accused, aggrieved by the judgment of the learned Judicial

Magistrate No.II, Coimbatore, in C.C.No.25 of 2010 dated 15.02.2012,

thereby convicting him for the offence u/s.138 of the Negotiable

Instruments Act (hereinafter called as N.I. Act) and imposing the sentence

of one (1) year Simple Imprisonment and a fine of Rs.5,000/- and in

default of payment of fine, undergo another three months Simple

Imprisonment and the judgment of the learned I Additional District and

Sessions Judge, Coimbatore in Criminal Appeal No.129 of 2012 dated

21.09.2012, thereby confirming the conviction and sentence imposed by

the trial Court.

2.This is a case instituted by way of a private complaint u/s.200

Cr.P.C. by the complainant viz. Dhandapani, complaining about the

offence u/s.138 N.I. Act. The case of the complainant is that the petitioner

/ accused was the landlord in respect of a shop and the complainant was to

be allotted a shopping space in the commercial complex for rent and for

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that purpose advance amount was fixed at Rs.1,25,000/- and monthly rent

was fixed at Rs.3,000/- and the complainant paid the said advance amount

of Rs.1,25,000/- on 11.05.2007. However, as promised, the petitioner /

accused did not let out the shop and therefore in return of the said sum of

Rs.1,25,000/-, the petitioner / accused issued two cheques for a sum of

Rs.70,000/- and Rs.55,000/- respectively on 13.08.2007. When the said

cheques were presented for collection, they were dishonoured with an

endorsement “funds insufficient” and therefore, after issuance of statutory

notice, since, the petitioner / accused failed and omitted to pay the amount

due under the cheques, the private complaint is filed, for the offence

u/s.138 N.I. Act.

3.Learned Judicial Magistrate after recording the sworn

statement of the complainant, took the complaint on file in C.C.No.25 of

2010 and after issuance of summons and furnishing of copies u/s.207

Cr.P.C. the accused denied the charges and stood trial. The complainant

examined himself as P.W.1 and marked Ex.P1 to Ex.P6 on his behalf.

During the cross examination of the complainant Ex.D1 was marked on

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behalf of the accused. After the complainant side evidence was closed, the

accused was questioned about the incriminating evidence and adverse

circumstances on record as per Section 313 Cr.P.C. and the accused

denied the same as false. Thereafter, since no further oral or documentary

evidence was let in on behalf of the accused, the trial Court proceeded to

hear the learned counsel for the complainant as well as the accused. By

judgment dated 15.02.2012, the trial Court found that the defence of the

accused is that after filing of the case, the complainant and the accused

entered into a compromise by virtue of Ex.D1, and the complainant has

undertaken to withdraw the case and therefore the prosecution must fail,

but, however, when Ex.D1 was put to the complainant when he was in the

box, the complainant admitted that there is compromise pending the case,

thereby under Ex.D1 instead of money, the petitioner / accused had

undertaken to execute a sale deed of 2 ½ cents land belonging to him and

however when the complainant went to register the said 2 ½ cents, it was

found by him that the said land was a poromboke land and it did not

belong to the petitioner / accused and therefore there was no registration

and the petitioner / accused did not also pay the money and therefore he

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continued the prosecution. Since Ex.D1 itself admits the entire liability,

the trial Court returned the verdict of guilt and sentenced the petitioner /

accused as above.

4.Aggrieved by the same, the petitioner / accused filed

C.A.No.129 of 2012 on the file of the I Additional District and Sessions

Judge, Coimbatore. By judgment dated 21.09.2012, after independently

appraising the evidence on record, the Lower Appellate Court also

considered Ex.D1 and as well as the evidence of P.W.1 and found that

since the sale transaction did not go through, since the land was found to

be poromboke piece of land, his liability is admitted. Therefore, the lower

Appellate Court confirmed the conviction and sentence as imposed by the

trial Court. Aggrieved by the same, the present Revision is filed before

this Court.

5.Heard Mr.Sasikumar, the Legal Aid counsel appearing on

behalf of the petitioner. Even though notice is served on the respondent /

complainant, there is no appearance on behalf of the complainant and his

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name is also printed in the cause list and the matter is taken up for final

disposal.

6.It is the statement of the learned counsel for the petitioner /

accused that the sale agreement between the petitioner / accused and the

respondent / complainant did not go through. The petitioner / accused did

not have money to immediately repay the advance. Therefore, he issued

the subject cheques as by way of security and undertook to let out the

property to 3rd party and after collecting the advance amount from them, he

wanted to pay the petitioner. In this regard, after obtaining cheques, the

respondent / complainant kept the keys with him, thereby prevented the

accused from letting out the shop to third parties. So long as the

complainant has kept the keys with him, there was no legal liability to

return the advance amount. This apart, the petitioner / accused also

attempted to settle the issue amicably by offering to sell the land belonging

to him. After entering into an agreement, the complainant willfully by

falsely alleging that the land is a poromboke land, did not complete the

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sale and therefore in view of the matter, there was no legal liability for the

petitioner / accused to discharge the amounts due under the cheques and

the trial Court and the I Appellate Court, however overlooked these

aspects while convicting the petitioner / accused.

7.I have considered the submissions made on behalf of the

learned counsel for the petitioner. I have gone through the material

records in the case. On a careful perusal of the cross examination of

P.W.1 as well as Ex.D1, the agreement, it is clear that the entire

transactions of the complaint, that is, paying the advance amount and the

petitioner / accused's liability to repay the same are admitted. As a matter

of fact, when the sale transaction as per Ex.D1 did not go through, the

complainant had every right to continue the criminal case filed by him in

the present proceedings for dishonour of cheques and so long as the

amount remained not paid, the complainant shall continue the prosecution.

Therefore, there was clear cut legal liability to pay the advance amount of

Rs.1,25,000/- and therefore, this is a clear case where the petitioner /

accused has committed the offence u/s.138 N.I. Act.

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D.BHARATHA CHAKRAVARTHY, J.

kas

8.This Revision is devoid of any merits and is accordingly

dismissed, confirming the conviction and sentence imposed by the trial

Court.

20.01.2022 kas

Index : yes / no Internet : yes / no Speaking/ Non speaking order

To

1.The Judicial Magistrate No.II, Coimbatore.

2.The I Additional District and Sessions Judge, Coimbatore.

3.The Deputy Registrar, Criminal Side, High Court, Madras.

4.The Public Prosecutor High Court of Madras.

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Crl.R.C.No.24 of 2015

https://www.mhc.tn.gov.in/judis