S.Manivannan vs M.Thiruvasagam
2023 Latest Caselaw 4879 Mad

                                                                             Crl.R.C.No.1095 of 2020

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 27.04.2023

                                                        CORAM

                                  THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

                                             Crl.R.C.No.1095 of 2020 and
                                        Crl.MP.Nos.7613 of 2020 & 4403 of 2021

                     S.Manivannan                                              ... Petitioner

                                                            Vs.

                     M.Thiruvasagam                                            ... Respondent

                     PRAYER: Criminal Revision case has been filed under Section 397 r/w
                     401 of Cr.P.C. against the order dated 11.12.2019 in Crl.A.No.168 of
                     2019 on the file of the XVI Additional District and Sessions Court,
                     Chennai confirming the judgment of trial court in CC.No.1322 of 2015
                     dated 22.03.2019 on the file of the Metropolitan Magistrate-FTC-II,
                     Egmore at Allikulam, convicting the petitioner for an offence under
                     Section 138 of NI Act sentencing him to one year simple imprisonment
                     under Section 255(2) of Cr.P.C. directing the accused to pay
                     compensation of Rs.14,00,000/- to the complainant under Section 357(3)
                     of Cr.P.C. r/w 138 of NI Act within one month in default to undergo three
                     months simple imprisonment.


                                           For Petitioner     : Mr.S.Kalyanaraman


                     Page 1 of 12
https://www.mhc.tn.gov.in/judis
                                                                                  Crl.R.C.No.1095 of 2020

                                             For Respondent     : M/s.G.Nirmala
                                                          ORDER

This criminal revision has been filed against the order dated

11.12.2019 passed in Crl.A.No.168 of 2019 on the file of the XVI

Additional District and Sessions Court, Chennai confirming the judgment

in CC.No.1322 of 2015 dated 22.03.2019 on the file of the Metropolitan

Magistrate-FTC-II, Egmore at Allikulam.

2. It is a case of a dishonoured cheque for Rs.7,00,000/- dated

16.06.2014 drawn by the accused in favour of the complainant to

discharge his debt. Since on presentation, the cheque bounced back with

endorsement 'insufficient fund', statutory notice was served on the

accused and thereafter, the complaint under Section 138 of NI Act

presented before Metropolitan Magistrate-V, Egmore. Later, the case was

transferred to Metropolitan Magistrate (FTC-II), Egmore in CC.No.1322

of 2015.

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3. Before the trial court, to prove the content of the complaint,

the complainant has mounted the witness box, deposed and marked four

documents. Ex.P1 is the cheque dated 16.06.2014. Ex.P2 is the return

memorandum from the bank dated 17.06.2014. Ex.P3 is the statutory

notice dated 26.06.2014 and Ex.P4 is the proof for delivery of statutory

notice.

4. The accused by way of cross examination of PW1 contended

that the statutory notice was not served on him. The complainant has

nowhere withdraw or source to advance Rs.7,00,000/-. He has not

borrowed any money from the complainant and the subject cheque was

not given by him to discharge any legally enforceable debt.

5. According to the accused, in Section 313 Cr.P.C.

questioning, he has said that the complainant was a staff in an

organization where he was working as Director. In connection with this

employment, he used to travel extensively and therefore for the

administrative reason, he used to leave signed blank cheques in the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1095 of 2020

office. When he was transferred to Madurai and the branch at Chennai

was closed, he did not care to get back the blank cheques left in the

office. The complainant who has taken possession of the said cheque had

misused the same by filling up his name and amount.

6. After questioning the accused on 10.07.2017, the accused

has taken out an application under Section 315 and under Section 91 of

Cr.P.C. and same was allowed. But he has not availed the said

opportunity. The trial court on appreciating the evidence let in by the

complainant as well as the defence taken by the accused while he was

questioned under Section 313 of Cr.P.C., allowed the complaint,

convicted the accused for offence under Section 138 of NI Act and

sentenced him to undergo one year simple imprisonment and pay twice

the cheque amount i.e. Rs.14,00,000/- as compensation.

7. Aggrieved by the judgment of the trial court, the accused

preferred criminal appeal in Crl.A.No.168 of 2019 before the XVI

Additional District and Sessions Court, Chennai. The lower appellate

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1095 of 2020

court considering the grounds of appeal and the submissions made by the

respective counsel, found no merit in the appeal and hence dismissed the

appeal confirming the conviction and sentence passed by the Trial court.

8. In this revision, the learned counsel appearing for the

accused contended that the courts below without proof of fundamental

fact, had presumed the cheque marked as Ex.P1 was given by the accused

to discharge a enforceable debt. The probability of misusing the said

cheque while the accused serving at Madras branch as Director and the

complainant as staff in that firm not been properly appreciated. The

counsel also submitted that there is no adequate proof that the statutory

notice was served on the accused. Particularly the counsel submitted that

the complainant has not proved his source to advance sum of

Rs.7,00,000/-. Further, when the accused sought for leave to adduce

evidence on his behalf and to call for the bank statement the application

was allowed by the trial court, however, even before adducing evidence

and producing the document, in haste, the trial court closed the case and

delivered judgment without hearing the accused and without affording

adequate opportunity to defend.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1095 of 2020

9. The learned counsel appearing for the complainant

submitted that regarding the source, extensive cross examination was

made by the accused and PW1 in his deposition has explained the source

of income and how Rs.7,00,000/- was advanced to the accused. Further,

the statutory notice calling upon the accused to pay cheque amount or he

will face consequence under Section 138 of NI Act was duly served on

the accused and postal acknowledgment to prove service is filed as

Ex.P4. In spite of receipt of the notice, the accused did not pay the

cheque amount or reply with reasoning why the cheque is not

enforceable.

10. During the trial, the accused after closing the complainant

side evidence and court adjourned the matter for Section 313 (1) (b) of

Cr.P.C. questioning on 29.06.2016, did not attend the court and remained

absent. Hence NBW was issued against him. He after one year

surrendered and recalled the warrant. Even thereafter, he did not take

steps to adduce defence evidence or call for records immediately. Only

after one year, he filed two applications to examine defence witness and

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to call for records under Section 91 of Cr.P.C. The same was allowed.

However, he did not adduce any defence evidence inspite of repeated

adjournments.

11. The accused remained absent, forcing the trial court to issue

NBW on 29.06.2016. The warrant was recalled by the accused on

17.10.2018. Thereafter till 22.02.2019, the accused did not show any

interest in adducing defence evidence. In the said circumstances, after

affording few more adjournments, the learned Magistrate reserved the

case for orders and delivered judgment on 22.03.2019.

12. To highlight the said facts, the learned counsel for the

respondent referred the lower appellate court judgment which has

narrated the facts as above. On perusal of records will clearly prove that

the accused took time, but did not avail the opportunity afforded to him.

13. Heard both the counsels and records perused.

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14. The signature and the cheque from the account maintained

by the accused is admitted. It is the contention of the accused that when

he was transferred to Madurai, signed blank cheque which was left in his

office at Chennai, was misused by the complainant. The cheque is from

the account maintained in the personal name of the accused. While so,

his defence that blank cheque left in the office to meet out exigency in

his absence does not carry any merit and this contention is not been

corroborated by any evidence. Also, it is not correct to say that the

accused was not afforded opportunity to defend his case. The finding of

the lower appellate court clearly indicates that in spite of affording

opportunity from 2016 to 2019, the accused has not come forward to

produce any evidence in support of his defence.

15. It is contended by the counsel for the revision petitioner that

foundational fact not proved in this case but the response to the extensive

cross examination of PW1 by the accused and the documentary evidence

placed by the complainant establish the required fundamental fact that

the subject cheque was issued to the complainant by the accused. The

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1095 of 2020

complainant had enough source to advance Rs.7,00,000/- from his

earning and savings. The cheque presented for collection, returned for

insufficient fund and when the complainant informed about this fact

through statutory notice-Ex.P3, the accused had not came forward to

explain and putforth his defence. For the said reason, the trial court and

the lower Appellate Court has held that the accused guilty. This Court

finds no error or irregularity or improbatory in the judgment of the courts

below. A reasoned order based on the record, been passed by the trial

court as well as the lower appellate court. Therefore, there is no reason to

interfere by this Court in exercise of power under Section 397 r/w 401

Cr.P.C.

16. The learned counsel for the petitioner submitted that in any

event, compensation of twice the cheque amount is excessive since the

punishment of one year simple imprisonment been imposed on the

accused for issuing cheque without sufficient fund. This Court taking

note of the fact that the accused having borrowed the money in the month

of January 2013 and given the cheque to discharge debt in the year 2014,

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but had not taken any genuine effort to honour the cheque, cannot seek

leniency after ten years from accrual of the liability. However, in order to

provide him an opportunity to adequately compensate the complainant

who advance Rs.7,00,000/- to him 10 years ago and waiting to see the

fruits, the sentence is modified to the effect that the petitioner / accused

shall pay a sum of Rs.10,50,000/- within a period of one month from the

date of receipt of the order, in default to undergo three months simple

imprisonment.

17. With this modification of sentence, confirm the conviction

of the courts below. Accordingly, this criminal revision is partly allowed.

Consequently, connected miscellaneous petitions are closed. There shall

be no order as to costs.

27.04.2023 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order

lok

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1095 of 2020

To

1. The XVI Additional District and Sessions Court, Chennai

2.The Metropolitan Magistrate-FTC-II, Egmore at Allikulam

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1095 of 2020

Dr.G.JAYACHANDRAN, J

lok

Crl.R.C.No.1095 of 2020

27.04.2023

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