Madras High Court
M.Boopalan vs The General Manager on 13 October, 2022
Crl.RC.No.628 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.10.2022
CORAM:
THE HON'BLE Mr.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.No.628 of 2018
M.Boopalan ... Petitioner
Vs
The General Manager,
Tamil Nadu Industrial Explosives Ltd.,
Rep.by Assistant Manager,
P.Thamizhazhagan,
Purchase and Electrical
TEL, Katpadi,
Vellore. ... Respondent
Prayer : Criminal Revision filed under Sections 397 and 401 Cr.P.C.,
praying to call for the records on the file of the learned Principal District and
Sessions Judge, Vellore, Vellore District in Crl.A.No.73 of 2017 dated
11.04.2018 and confirming the judgment passed in C.C.No.81 of 2016 on the
file of the learned Judicial Magistrate (Fast Track Court), Vellore, Vellore
District dated 06.06.2017 and set aside the judgment dated 11.04.2018.
For Petitioner : Mr.E.Kannadasan
For Respondent : Mr.A.Abdul Wahab
For M/s.K.M.Subramanian Associates
***
https://www.mhc.tn.gov.in/judis
Crl.RC.No.628 of 2018
ORDER
This Criminal Revision Case has been filed to set aside the Judgement
dated 11.04.2018 passed in Crl.A.No.73 of 2017 on the file of the Principal
District and Sessions Judge, Vellore, Vellore District and thereby confirming
the Judgment dated 06.06.2017 passed in C.C.No.81 of 2016 on the file of the
learned Judicial Magistrate (Fast Track Court), Vellore, Vellore District,
thereby convicted the petitioner for the offence punishable under Section 138
of Negotiable Instrument Act.
2. The petitioner is an accused in the complaint lodged by the
respondent. The respondent is a Government undertaking Company and is
engaged in production of explosives, slurry, explosive emulsion, detonators,
detonating fuse and other explosive substances. The petitioner is the
proprietor of M/s.TECHNO PROFILES. The petitioner engaged in the
production of PVC products. While being so, the respondent floated a tender
to supply Poly Propylene Yarn and PVC Spools, in which the petitioner also
participated in the tender and he succeeded in the bid. Accordingly, an
agreement was entered into between them and on 06.10.2015, the petitioner
agreed to supply of 300 Nos of PVC Spools on daily basis. After commitment
for supply of PVC Spools, the petitioner failed to supply the same and the
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Crl.RC.No.628 of 2018
respondent managed by procuring the necessary PVC Spools from an alternate
source. Therefore, the respondent requested to refund the balance amount or
supply PVC Spools. However, the petitioner failed to adhere to their request.
Thus, the petitioner is liable to pay a sum of Rs.2,28,000/-. Hence, no other
option, then the present cheque was issued for security purpose for a legally
enforceable debt. When the said cheque was presented for collection and the
same was returned dishonour for the reason 'fund insufficient'. After causing
legal notice, the respondent lodged complaint.
3. On the side of the respondent, they examined P.W.1 and marked
Exs.P1 to P24. On the side of the petitioner, no one was examined and no
document was marked to rebut the evidence of the respondent.
4. On perusal of the oral and documentary evidence, the Trial Court
found the petitioner guilty and sentenced him to undergo Simple
Imprisonment for a period of one year and also ordered compensation to the
tune of Rs.2,26,894/-. Aggrieved by the same, the petitioner preferred an
appeal and the same was also dismissed and the judgment passed by the Trial
Court stood confirmed.
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Crl.RC.No.628 of 2018
5. The learned counsel appearing for the petitioner submitted that as
per the demand notice dated 15.12.2015, the respondent stated as follows :
“The advance payment and the refund details are furnished
below for your reference.
(1) 50% advance paid for supply of 5000 Nos. of
PVC Spools : Rs.1,14,000.00
(2) 50% of advance for the Mould : Rs. 20,000.00
(3) Total advance paid : Rs.1,34,000.00
(4) Cost towards 408 Nos. of PVC Spools supplied: Rs. 18,605.00 (-)
(5) Balance amount to be refunded : Rs.1,15,395.00
(6) Risk purchase clause amount for 8,500 Nos
of PVC Spools procured from alternative
source : Rs. 68,000.00
(7) Penalty for no supply of material to the
tune of 5% maximum for the P.O. quantity : Rs. 43,050.00
(8) Cheque Bouncing Charges : Rs. 449.00
(9) Total amount to be refunded : Rs. 2,26,894.00
Hence, you are advised to refund an amount of
Rs.2,26,894/- on or before 24.12.2015 otherwise we have not
option but to take legal action against you.”
6. Even according to the respondent, the petitioner received only
Rs.1,34,000/- as advance and supplied PVC Spools to the tune of Rs.18,605/-.
Therefore, the remaining advance amount to the tune of Rs.1,15,395/- alone to
be repaid. Insofar as, the purchase of the materials from the other source to
the tune of Rs.68,000/- is concerned, it cannot be claimed by the petitioner.
Since, there is no loss to the respondent due to purchase of PVC Spools from
other source. Insofar as the penalty is concerned, the petitioner is not liable
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Crl.RC.No.628 of 2018
to pay any penalty. The mould was not properly supplied by the respondent
and as such, the petitioner was not able to supply the PVC Spools as required
by the respondent herein. He further submitted that at the time of execution
of sureties he deposited 20,000/- and while suspending the sentence imposed,
this Court directed the petitioner to deposit Rs.95,000/-. Both the conditions
were duly complied with and so far Rs.1,15,000/- had been deposited which is
lying in the Trial Court. He further submitted that the petitioner lost both his
hands and he is a retired Military person. Thus, he lost all his financial
abilities and he has no means to pay anything.
7. Per contra, the learned counsel for the respondent would submit that
the respondent is a Government Company and only because of all these losses
to the respondent, now, he had closed the entire production and only one
person is working in the respondent herein. The liability and issuance of
cheque is categorically admitted by the petitioner and as such, the Trial Court
and the First Appellate Court were right in convicting the petitioner for the
offence punishable under Section 138 of Negotiable Instrument Act.
8. Heard, Mr.E.Kannadasan, learned counsel appearing for the
petitioner and Mr.A.Abdul Wahab, learned counsel appearing for the
respondent and perused the materials available on record.
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Crl.RC.No.628 of 2018
9. A perusal of the records reveals that the petitioner was an accused
and he was offered contract to supply PVC Spools. He supplied materials
only to the tune of Rs.18,605/- out of the advance received by him to the tune
of Rs.1,34,000/-. There was a grievance over the petitioner with regard to
supply of PVC moulds. However, the advance received by the petitioner is
lying with the respondent. A perusal of the notice dated 15.12.2015 reveals
that the respondent claimed risk purchase amount of Rs.68,000/- from other
source. Admittedly, there was no loss by the respondent by purchasing the
PVC Spools from other source. Insofar as the penalty is concerned, the
petitioner stated so many reasons for non supply of PVC moulds such as the
Spool was not properly supplied by the respondent to produce PVC Spools.
Further, the petitioner is also present before this Court and it could be seen
that he lost both his hands and had stated that he also lost his entire business.
So far, he had deposited a sum of Rs.1,50,000/- and it is lying on the file of
the Trial Court. That apart, even according to the respondent, for all these
amounts he had deposited the cheque, which was given as security, as there is
an agreement between the petitioner and the respondent. Therefore, the
cheque was not issued for any claim made by the respondent to the tune of
Rs.2,26,894/-.
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Crl.RC.No.628 of 2018
10. Considering the facts and circumstances of the case, this Court is
not inclined to set aside the conviction for the offence punishable under
Section 138 of Negotiable Instrument Act. However, this Court is inclined to
set aside the sentence alone on condition that the petitioner shall deposit
another sum of Rs.25,000/- to the credit of C.C.No.81 of 2016 on the file of
the Judicial Magistrate (Fast Track Court), Vellore, within a period of four
weeks from the date of receipt of a copy of this order, failing which, the
sentence imposed by the Court below stands automatically restored. On such
deposit, the respondent is permitted to withdraw the entire amount (i,e.,
95,000/- + 20,000/- + 25,000/- = Rs.1,40,000/-) by filing appropriate
application. It is made clear that the Trial Court shall permit the respondent to
withdraw the amount, without issuing notice to the petitioner herein.
11. In the result, this Criminal Revision Case is allowed.
13.10.2022
Index: Yes/No
Speaking / Non Speaking Order
Lpp
https://www.mhc.tn.gov.in/judis
Crl.RC.No.628 of 2018
G.K.ILANTHIRAIYAN, J
Lpp
To
1.The Principal District and Sessions Judge, Vellore, Vellore District.
2. The Judicial Magistrate (Fast Track Court), Vellore, Vellore District.
Crl.R.C.No.628 of 2018
13.10.2022
https://www.mhc.tn.gov.in/judis
