P. Krishnamoorthy vs V.C. Ravichandran
2022 Latest Caselaw 11656 Mad

                                                                        Crl.R.C.Nos.1354 & 1355 of 2014


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 01.07.2022

                                                      CORAM

                                  THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

                                           Crl.R.C.Nos.1354 & 1355 of 2014

                     P. Krishnamoorthy                                       ... Petitioner
                                                                             in both Crl.O.Ps

                                                         Vs.

                     V.C. Ravichandran                                   ... Respondent

in both Crl.O.Ps Prayer in Crl.R.C.No.1354 of 2014: Criminal Revision Case is filed under Section 397 r/w 401 of Criminal Procedure Code, to set aside the order dated 08.10.2012 made in S.T.C.No.1168/2007 on the file of Judicial Magistrate II, Salem and the same is confirmed by the II Additional Sessions Judge, Salem in Crl.A.No.107/2012 dated 15.09.2014.

Prayer in Crl.R.C.No.1355 of 2014: Criminal Revision Case is filed under Section 397 r/w 401 of Criminal Procedure Code, to set aside the order dated 08.10.2012 made in S.T.C.No.1168/2012 and the same is modified by the III Additional District Sessions Judge, Salem in CRP.No.66/2012 dated 24.11.2014.

https://www.mhc.tn.gov.in/judis
                                                                                  Crl.R.C.Nos.1354 & 1355 of 2014




                                         For Petitioner    : Mr. A. Esakkiappan

                                         For Respondent     : Mr. P. Jagadesan


                                                    COMMON ORDER

Against the concurrent finding of the Courts below holding the

petitioner guilty of offence under Section 138 of Negotiable Instruments

Act, for issuing the cheque for Rs.1.50 lakhs in favour of complainant and

allowing it to be dishonoured for want of fund, the present revision petitions

are filed.

2. For the sake of convenience, the parties are referred as accused

and complainant.

3. On 09.09.2006, the accused has borrowed Rs.1.50 lakhs from

the complainant and agreed to repay it with interest at the rate of 18% per

annum. He has executed a pro-note to that effect. While so, when the

complainant demanded the repayment of the money, the cheque bearing

No.111828 dated 09.10.2007 drawn in the account maintained by the

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1354 & 1355 of 2014

accused at M/s.Bharat Overseas Bank Limited, Salem dated 10.10.2007 was

given to the complainant. The said cheque when presented for collection,

returned for want of fund and therefore, after issuing notice to the

residential address as well as to Syndicate Bank, Gugai Branch, Salem,

where, he was working as Record Clerk, the present complaint is filed.

4. Before the trial Court, the accused took a defence that the

cheque was issued as security for a loan transaction with VCR Finance in

which the complainant is one of the partner and insofar as the subject

cheque is concerned, there is no legally enforceable debt payable to the

complainant. Further, for non-production of his statement of accounts and

non-disclosing fact for what purpose the cheque was issued, the complaint

is liable to be dismissed.

4(i). However, the trial Court on appreciating the documents relied by

the complainant and marked as Exs.P1 to P6, convicted the accused to

undergo one year rigorous imprisonment and pay a fine of Rs.5,000/- in

default, one month simple imprisonment. The said judgment of conviction

and sentence was challenged before the II Additional Sessions Judge, in

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1354 & 1355 of 2014

Crl.A.No.107 of 2012 by the accused.

4(ii). For enhancement of punishment, the complainant preferred

revision petition in C.R.P.No.66 of 2012 before III Additional District

Judge, Salem. The appeal preferred by the accused in C.A.No.107 of 2012

was dismissed on 15.09.2014. The revision filed by the complainant for

enhancement was allowed on 24.11.2014 wherein, the appellate Judge

modified the sentence into the effect that in addition to the sentence

imposed by the trial Court, which is one year rigorous imprisonment and a

fine of Rs.5,000/- in default one month simple imprisonment also ordered

compensation of Rs.1.50 lakhs being the cheque amount payable within two

months in default two months simple imprisonment.

4(iii). The order, dismissing the appeal preferred by the accused and

the order allowing the revision filed by the complainant for enhancement,

now both challenged in Crl.R.C.Nos.1354 and 1355 of 2014 by the accused.

5. Learned counsel appearing for the accused/revision petitioner

would submit that the complaint is silent about the purpose, for which, the

cheque issued to the complainant and the complainant has not proved the

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1354 & 1355 of 2014

legally enforceable debt payable to him. Also submitted that the non filing

of account and income tax return of VCR Finance is fatal to the complaint.

6. This Court, on perusing the complaint finds that there is

specific averment in the complaint as well as the deposition of P.W.1, the

purpose for which, the cheque given by the accused to the complainant.

The earlier borrowing of Rs.1.50 lakhs on 09.09.2006, is substantiated by

pronote executed by the accused which is marked as Ex.P1. Therefore, to

discharge the liability accrued against the pronote, the subject cheque issued

and the same has been dishonoured which has given cause of action to

prosecute the accused under Section 138 of Negotiable Instruments Act.

7. Insofar as non-production of Income Tax Return of VCR

Finance and non-production of statement of accounts of VCR Finance, as

rightly pointed out by the Courts below, the transaction is between the

complainant and the accused in their respective personal capacity and the

VCR Finance has no relevance to the case in hand. Though, the accused has

relied upon the statement of accounts which is marked as Ex.P1 to show that

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1354 & 1355 of 2014

he has made some payment to VCR Finance, the said transaction can have

no bearing insofar as the present complaint is concerned. For the above said

reason, this Court finds no error in holding the accused guilty of offence

under Section 138 of Negotiable Instruments Act.

8. Adverting to the enhanced sentence by the appellate Court, this

Court finds that it is not been a substitution of the sentence imposed by the

trial Court, but in addition to the sentence imposed by the trial Court. The

appellate Court has awarded compensation of the cheque amount, payable

within two months from the order in addition to the sentence of 1 year

rigorous imprisonment and Rs.5,000/- fine.

8. Section 138 and 139 of Negotiable Instruments Act prescribes

penalty in case of dishonouring of cheque for insufficiency of fund in the

account. The punishment which could be imposed under such Section, is

imprisonment for a term which may extend to two years or with fine, which

may extend to twice, the amount of cheque or with both.

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1354 & 1355 of 2014

9. The revision Court while ordering compensation in addition

with the sentence imposed, has relied upon the judgment of the Hon'ble

Supreme Court rendered in Vijayan Vs. ABN & Others reported in 2012 (1)

CTC 791 and the judgment of this Court in Pushpa Vs.

P.Balasubramanian reported in 2014 (1) MLJ Crl.664, has justified

awarding compensation, in addition to the sentence of imprisonment and

fine imposed by the trial Court. No doubt, the Criminal Procedure Code of

Section 357 Cr.P.C., provides for payment of compensation and whenever

an offence under Section 138 of Negotiable Instruments Act is dealt award

of compensation to an extend of twice the amount of cheque is permitted

under statute. The two judgments cited by the Court below reinforces the

said power of the Court to impose fine which may extend twice the amount

of cheque or with both.

10. In the instance case, the revision Court has found that the

term of one year rigorous imprisonment and fine of Rs.5,000/- is not

adequate and therefore, enhanced punishment by imposing fine to the

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1354 & 1355 of 2014

extend of cheque amount, in addition to Rs.5,000/- already imposed by the

trial Court.

11. The revision Court taking note of the fact that the accused is

an employee in a Bank had failed to honour the cheque given by him found

appropriate to enhance the punishment by awarding the compensation to the

extend of the cheque amount, in addition to the imprisonment of one year

and Rs.5,000/- fine. The reason assigned by the revision Court for

enhancing the sentence, does not fall under the definition of

unreasonableness or perverse for the revision Court to interfere. Hence, the

order of the revision Court in CRP.No.66/2012 on the III Additional District

Sessions Judge, Salem, dated 24.11.2014, is confirmed.

12. In the result, both the revision petitions are dismissed.

01.07.2022

AT Internet : Yes Index : Yes/No Speaking / Non-speaking

https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1354 & 1355 of 2014

Dr.G.JAYACHANDRAN,J.

AT

To

1.The Judicial Magistrate II, Salem.

2.The II Additional Sessions Judge, Salem.

3.The III Additional District Sessions Judge, Salem.

Crl.R.C.No.1354 & 1355 of 2014

01.07.2022

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