Madras High Court
R.Ashokan vs S.Suresh on 19 October, 2022
Crl.R.C.No.1315 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2022
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.1315 of 2022
and
Crl.M.P.Nos.13981 and 13983 of 2022
R.Ashokan ... Petitioner
..vs..
S.Suresh ... Respondent
Criminal Revision Case filed under Sections 397 (1) r/w 401
Cr.P.C to set aside the order and judgment dated 04.08.2022 in C.A.No.78
of 2021 on the file of the Special Court for Trial of Cases Registered
Under SC/ST (POA) Act, Namakkal, confirming the judgment of
conviction and sentence and the amount of Rs.2,00,000/- awarded as
compensation by the trial Court is reduced to Rs.40,000/- by the learned
Judicial Magistrate, Paramathi, Namakkal District by its judgment dated
8.4.2021 made in S.T.C.No.532 of 2017 and acquit the
petitioner/appellant.
For Petitioner : Mr.S.Panneerselvan
For Respondent : Mr.D.Senthur Kugan
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Crl.R.C.No.1315 of 2022
ORDER
This revision has been preferred challenging the judgment dated
04.08.2022 passed in C.A.No.78 of 2021 by the learned Sessions Judge,
Special Court for Trial of Cases Registered Under SC/ST (POA) Act,
Namakkal.
2. The case of the respondent/complainant is that the
petitioner/accused purchased L&T Kumatsu PC-130 Excavator Machine
No.N.L.50074 from the complainant on 10.12.2016 for a sum of
Rs.10,00,000/- and thereby, the accused paid a sum of Rs.8,00,000/- to the
complainant on the same day itself and for the balance amount i.e.
Rs.2,00,000/-, the accused has issued a cheque bearing No.000001 dated
10.12.2016 drawn on Karur Vysya Bank in favour of the complainant. On
26.12.2016, when the cheque was presented for collection, the same was
returned with an endorsement 'stop payment' on 30.12.2016. Thereafter, at
the request of the accused, the complainant again re-
presented the cheque for collection on 06.02.2017 and the same was
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Crl.R.C.No.1315 of 2022
returned on 09.02.2017 as 'stop payment'. Hence, the respondent/
complainant issued a legal notice to the petitioner/accused. After receipt of
the said legal notice, the petitioner neither sent any reply nor repaid the
cheque amount. Hence, the respondent filed a private complaint against the
petitioner in S.T.C.No.532 of 2017 before the learned Judicial Magistrate,
Paramathi for the offence under Section 138 of The Negotiable
Instruments Act, 1881 [hereinafter referred to as 'N.I.Act' for the sake of
convenience].
3. After trial, the learned Magistrate found that the petitioner is
guilty for the above offence and convicted and sentenced him to undergo
simple imprisonment for a period of one month and to pay a sum of
Rs.2,00,000/- as compensation to the respondent/complainant, in default,
to undergo simple imprisonment for one month. Challenging the said order,
the petitioner preferred an appeal in Crl.A.No.78 of 2021 before the
learned Sessions Judge, Special Court for Trial of Cases Registered Under
SC/ST (POA) Act, Namakkal. The Apellate Court partly allowed the
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Crl.R.C.No.1315 of 2022
appeal by confirming the conviction and sentence of the trial Court and
modified the compensation from Rs.2,00,000/- to Rs.40,000/-. Aggrieved
by the same, the petitioner has preferred the present revision case.
4. The learned counsel for the petitioner/accused submitted that
though the petitioner issued a cheque for a sum of Rs.2,00,000/-, even
before presenting the cheque, the petitioner had deposited Rs.1,60,000/- to
the credit of the respondent/complainant's account on 12.12.2016 and
hence, the balance amount of Rs.40,000/- as to be paid to the complainant.
However, the respondent/complainant presented the cheque for a sum of
Rs.2,00,000/- without deducting the amount of Rs.1,60,000/- which was
already received from the petitioner. Therefore, no cause of action arisen
for the respondent/complainant to file the complaint.
5. In support of his contention the learned counsel for the petitioner
placed reliance on the decision of the Hon'ble Supreme Court in
Mr.Mehmood Umar Faruqui, AOR Vs. Mr.Purvish Jitendra Malikan,
AOR and others reported in 2022 Live Law (SC) 830. The relevant
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Crl.R.C.No.1315 of 2022
paragraph No.30(iv), which reads as follows :
'' The first respondent has made part-
payments after the debt was incurred and
before the cheque was encashed upon
maturity. The sum of rupees twenty lakhs
represented on the cheque was not the 'legally
enforceable debt' on the date of maturity.
Thus, the first respondent cannot be deemed to
have committed an offence under Section 138
of the Act when the cheque was dishonoured
for insufficient funds; and''
6. The learned counsel for the petitioner further submitted that
before presenting the cheque, the revision petitioner/accused had made
part payment of Rs.1,60,000/- to the respondent/complainant. The learned
Sessions Judge found that as the petitioner had paid part payment,
modified the compensation from Rs.1,60,000/- to Rs.40,000/-, but failed
to consider the fact that there was no cause of action to file the complaint
against the petitioner. The liability is only for a sum of Rs.40,000/-, where
as, the cheque was presented for a sum of
Rs.2,00,000/- and hence, there was no legally enforceable debt. The trial
Court and the appellate Court failed to consider facts and law lay down by
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Crl.R.C.No.1315 of 2022
the Hon'ble Supreme Court and wrongly convicted and sentenced the
petitioner, which warrants interference of this Court.
7. The learned counsel for the respondent submitted that the
petitioner/accused has not specifically stated that for what purpose he had
deposited Rs.1,60,000/- to the credit of the complainant. Therefore, he
cannot say that the part payment was made for discharging the cheque
amount. Hence, both the Courts below rightly found that the revision
petitioner has committed the offence under Section 138 of N.I.Act and
convicted and sentenced the petitioner.
8. Heard the learned counsel for the petitioner and the learned
counsel for the respondent and also perused the materials available on
record.
9. On a careful reading of the entire materials, it would reveal that
the disputed cheque was presented on 26.12.2016 and the same was
returned on 30.12.2016. Even before presenting the cheque, the petitioner
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Crl.R.C.No.1315 of 2022
had deposited Rs.1,60,000/- to the credit of the complainant's account on
12.12.2016, but the respondent presented the cheque for a sum of
Rs.2,00,000/-. The contention raised by the learned counsel for the
respondent is that after receipt of the statutory notice, the petitioner neither
sent any reply nor repaid the amount. Though non-sending of the reply is
not a sole ground to disbelieve the case of the accused, the complainant
has to prove that the cheque was issued for legally enforceable debt. On
the date of presenting the cheque, the liability of the revision petitioner is
Rs.40,000/-, whereas, the cheque was presented for Rs.2,00,000/-. The
lower appellate Court found that the petitioner has already deposited
Rs.1,60,000/- and modified the compensation from Rs.2,00,000/- to
Rs.40,000/-. Challenging the said order, the revision petitioner has filed
the present revision, but, the respondent/complainant has not filed any
appeal or cross-objection. The order of the learned Session Judge clearly
shows that out of Rs.2,00,000/-, the petitioner has already deposited
Rs.1,60,000/- and hence, now he cannot take a stand that for what purpose
the petitioner deposited the said amount to his credit. However, as per the
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Crl.R.C.No.1315 of 2022
law lay down by the Hon'ble Supreme Court, before presenting the cheque,
part payment was made and thereafter, if the complainant presented the
cheque for entire amount, no cause of action would arise. Both the Courts
below failed to consider the above facts and convicted and sentenced the
petitioner.
10. At this juncture, the learned counsel for the petitioner submitted
that at the time of admitting the appeal, the petitioner paid the balance
amount of Rs.40,000/- before the Court below as compensation and hence,
entire cheque amount was paid by the petitioner.
11. In the light of the above facts, this Court is of the opinion that
the entire cheque amount has been paid to the complainant. Further, on the
date of presenting the cheque, the liability is only for a sum of Rs.40,000/-,
whereas the cheque was presented for Rs.2,00,000/-, therefore, offence
under Section 138 of Negotiable Instruments Act would not attract.
12. Taking into consideration the facts and circumstances and as per
the law lay down by the Hon'ble Supreme Court, this Court finds that the
respondent has no cause of action to file the complainant against the
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Crl.R.C.No.1315 of 2022
petitioner and the judgment passed by the learned Sessions Judge is liable
to be set aside.
13. In the result, this Criminal Revision Case is allowed and the
judgment dated 04.08.2022 passed in Crl.A.No.78 of 2021 by the learned
Sessions Judge, Special Court for Trial of Cases Registered under SC/ST
(POA) Act, Namakkal by convicting and sentencing the petitioner is set
aside. The respondent/complainant is at liberty to withdraw the
compensation amount of Rs.40,000/- which was already deposited before
the Court below. Consequently, connected miscellaneous petitions are
closed.
19.10.2022
Index: Yes/No
Speaking Order/Non-Speaking Order
ms
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Crl.R.C.No.1315 of 2022
P.VELMURUGAN, J.
ms
To
1.The Sessions Judge,
Special Court for Trial of Cases
Registered Under SC/ST (POA) Act,
Namakkal.
2.The Judicial Magistrate,
Paramathi,
Namakkal District
Crl.R.C.No.1315 of 2022
and
Crl.M.P.Nos.13981 and 13983 of 2022
19.10.2022
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