K.Geetha vs Valasarajan
2022 Latest Caselaw 15644 Mad

                                                                                 Crl.RC.No.1329 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATE:22.09.2022

                                                      CORAM:

                                   THE HON'BLE Mr. JUSTICE SUNDER MOHAN

                                               Crl.R.C.No.1329 of 2019


                    K.Geetha                                                 ...Petitioner


                                                          Versus

                    Valasarajan,                                          ... Respondent

                    PRAYER : Criminal Revision petition filed under Sections 397 and 401
                    Criminal Procedure Code, to set aside the Judgment of conviction dated
                    09.08.2019 in C.A.No.129 of 2018, on the file of the learned II Additional
                    District and Sessions Judge, Poonamallee, Thiruvallur District, confirming
                    the order of conviction and sentence dated 10.05.2018 in S.T.C.No.351 of
                    2016 on the file of the learned Judicial Magistrate, Fast Track Court
                    Magisterial Level No.II, Poonamallee.


                                         For Petitioner    : Mr.G.K.Thamizharasan
                                                             Legal Aid Counsel

                                         For Respondent : M/s.D.J.Venkatesan
                                                          Emily Venkatesan


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                                                                                    Crl.RC.No.1329 of 2019

                                                        ORDER

This revision arises against the judgment of the learned II Additional

District and Sessions Judge, Poonamallee passed in C.A.No.129/2018 on

09.08.2019.

2. The petitioner faced prosecution for the offence under Section

138 of the Negotiable Instruments Act in S.T.C.No.351/2016 on the file of

the learned Fast Track Court, Magisterial Level No.II, Poonamallee.

The prosecution case is that the petitioner had borrowed a sum of

Rs.4,00,000/- (Rupees Four Lakhs only) from the Respondent in a certain

period of time to meet her urgent family needs. Towards discharge of the

said debt, the petitioner issued a post dated cheque drawn on Indian Bank

Pattabiram Branch for a sum of Rs.3,00,000/- (Rupees Three Lakhs only).

The complainant presented the cheque for collection and upon the same

having returned for the reason “Funds insufficient”, issued statutory notice

and filed a complaint under Section 138 of the Negotiable Instruments Act.

3. Before the Trial Court, the respondent examined himself as P.W.1

and marked eight exhibits. The petitioner examined as D.W.1 and three

exhibits were marked on her side.

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4. The trial Court rendered a finding of conviction and sentenced the

petitioner to undergo twelve months S.I and directed to pay a

compensation of Rs.3,00,000/- (Rupees Three Lakhs only) within a period

of four months and in default to undergo for further period of four weeks

S.I for the offence under Section 138 of Negotiable Instruments Act.

Against the same, the petitioner moved an Appeal in C.A.No.129/2018,

which came to be dismissed by the learned II Additional District and

Sessions Judge, Poonamalle.

5. Heard, Mr.G.K.Tamizharasan, Legal Aid Counsel for the

Petitioner and Mr.D.J.Venkatesan, learned counsel for the Respondent.

6.The learned counsel for the Petitioner submitted that the cheque

was only given as security for the loan taken by the husband of the

Petitioner. The Petitioner has no relationship with the Complainant. The

Petitioner also had requested the learned Magistrate to send the signature

for comparison by an expert which was negatived by the Courts below.

7.The learned counsel for the Respondent submits that all the

contentions have been considered by the Courts below and the contentions

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were rightly negatived by the Courts. There is no perversity will

warranting interference by this Court in a revision.

8.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

evidence on her 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. Considering the facts and circumstance of the

case this Court finds that the Courts below have considered the evidence in

the proper perspective and found the petitioner/accused guilty of the

punishable offence under Section 138 of NI Act. The Petitioner has not

rebutted the statutory presumption by adducing acceptable evidence or by

raising down in the evidence of the complainant by cross examination.

The finding of the Courts below cannot be faulted and no interference is

called for in this revision.

9. However, this Court is of the view that the sentence imposed on

the petitioner can be modified, keeping in mind that the proceedings

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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. Further the

Hon'ble Apex Court in Kumaran vs. State of Kerala and another reported

in (2017) 7 SCC 471 considered the question as to whether the

compensation can be recovered in the manner provided under Section 421

of Cr.P.C, even if the accused has undergone the default sentence for non

payment of compensation. The Honourable Apex Court after considering

all the relevant provisions and its earlier judgements held as follows:-

“...

27...Despite this Section 357(3), Section 431, Section 70 IPC and Section 421 (1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421 (1). This would, however, be without the necessity for recording any special reasons. This is because Section 421 (1) proviso contains the disjunctive “or” following the recommendation of the Law Commission, that the proviso to old Section 386 (1) should not be a bar to the issue of a warrant for levy of fine, even when a 5/ 9 https://www.mhc.tn.gov.in/judis Crl.RC.No.1329 of 2019

sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso of Section 421 (1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 35 (1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357 (3). ...”

10. The Cheque is of the year 2015 and since 7 years have elapsed,

this Court considers that the compensation can be enhanced from

Rs.3,00,000/- (Rupees Three Lakhs only) to Rs.4,00,000/- (Rupees Four

Lakhs only). This enhancement can be in lieu of the sentence of

imprisonment. Accordingly, this Court while confirming the finding of

conviction recorded by the Courts below reduces the sentence imposed on

the petitioner from twelve months to imprisonment till the rising of Court

and direct the petitioner to pay a sum of Rs.4,00,000/- (Rupees Four

Lakhs Only) as compensation to the Respondent within a period of six (6)

weeks from the date of receipt of copy of this order failing which the

petitioner shall suffer 3 Months S.I.

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11.The petitioner shall surrender before the learned Magistrate on or

before 20.10.2022 to suffer the sentence of imprisonment till rising of the

Court, failing which the learned Magistrate shall take steps to secure the

presence of the petitioner for serving the above said sentence. It is also

made clear that in the event of the petitioner not paying the compensation

amount, the respondent shall be at liberty to recover the compensation

amount in the manner known to law, even if the petitioner has suffered

default sentence for non payment of compensation amount.

12.It is submitted that the petitioner has so far deposited

Rs.1,50,000/- in the credit of STC No.351 of 2016 on the file of Fast Track

Court, Magisterial Level No.II, Poonamalle, Thiruvallur District at

varrious stages. The Respondent is at liberty to withdraw the said sum on

filing appropriate petition before the Fast Track Court, Magisterial Level

No.II, Poonamalle, Thiruvallur District. The Petitioner should pay the

balance sum of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only)

awarded as compensation within a period of six (6) weeks failing which

she has to suffer the default sentence as stated above.

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13.With the above modifications, Criminal Revision is dismissed.

22.09.2022

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

To

1.The II Additional District and Sessions Judge, Poonamallee, Thiruvallur District,

2.The Judicial Magistrate, Fast Track Court Magisterial Level No.II, Poonamallee.

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SUNDER MOHAN, J.

dk

Crl.R.C.No.1329 of 2019

22.09.2022

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