Madras High Court
P.Prakash vs K.Sivakumar on 6 June, 2023
Crl.R.C.No.128 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.06.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.128 of 2020
P.Prakash .. Petitioner
Vs.
K.Sivakumar ..Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to set aside the judgment and
conviction dated 25.07.2019 made in C.A.No.67 of 2018 on the file of II
Additional District and Sessions Judge, Erode and confirming the
judgment and conviction dated 05.05.2016 made in S.T.C.No.491 of
2013 on the file of the Judicial Magistrate, Fast Track Court No.I, Erode.
For Petitioner : Mr.C.S.Saravanan
For Respondent : No appearance
ORDER
This Criminal Revision Case is filed by the accused who was
found guilty by the Courts below for issuing two cheques one for
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Crl.R.C.No.128 of 2020
Rs.35,000/- dated 19.02.2013 and another for Rs.1,15,000/- dated
25.04.2023 to discharge the hand loan received from the complainant.
2. The case of the complainant is that after borrowing the
money, the accused issued two cheques. When it was presented for
collection on 25.04.2013, the cheques returned for want of fund and
therefore, the accused and his wife, who are the account holders of the
cheques, are liable for prosecution for the offence under Section 138 of
Negotiable Instruments Act.
3. The revision petitioner and his wife / accused 1 and 2
respectively contested the matter on the ground that the cheques were not
issued for any legally enforceable debt. The cheques issued to third party
to one Mohan, that has been misused. Furthermore, the learned counsel
appearing for the revision petitioner strongly rely upon the probability
that for borrowing of Rs.1,15,000/- on 25.04.2013, no person will give
the cheque on the same day and no prudent person will present the
cheque for collection on the same day. If really the drawer of the cheque
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Crl.R.C.No.128 of 2020
had money of Rs.1,15,000/- in his account on 25.04.2013, there is no
need for borrowing the money and give the cheque. This improbability
which canvassed before the Courts below have not been considered and
therefore, the judgment of the trial Court confirmed by the lower
appellate Court being perverse has to be reversed.
4. This Court perused the original record and the deposition of
the complainant. The subject matter of the complaint is the cheques
drawn by the revision petitioner of ICICI bank at Erode branch. Ex.P1 is
a cheque dated 25.04.2013 for Rs.1,15,000/- bearing No.399157. Ex.P2
is the cheque for Rs.35,000/- bearing No.399156, both the cheques were
presented for collection in the Indian Overseas bank, where the
complainant maintained his account. The said cheques were presented on
25.04.2013 and the same had been returned on the next day with the
memo, which are marked as Ex.P3 series. On return of the cheques, the
complainant has caused statutory notice dated 09.05.2013 to the revision
petitioner Prakash and his wife Narmadha of the account holders of the
subject cheques. The statutory notice marked as Ex.P4 received by the
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Crl.R.C.No.128 of 2020
revision petitioner and the postal acknowledgement is marked as Ex.P6.
The revision petitioner has not replied to the statutory notice. His wife, 2nd
accused refused to receive notice and same is returned unserved.
5. In the said circumstances, the trial Court on appreciating the
evidence has found that the revision petitioner, who is the signatory of the
said cheques, guilty of offence under Section 138 of N.I.Act and
sentenced him to undergo 6 months Simple Imprisonment and to pay a
fine of Rs.5,000/-, in default 15 days S.I., and acquitted the 2 nd accused,
since she is not the signatory of the cheques and she has no knowledge of
issuance of the cheques. On appeal, the trial Court judgment confirmed.
Hence the present Criminal Revision Case.
6. The defence taken by the accused in the course of cross
examination has not been substantiated by any documents or oral
evidence. The improbability of issuing the cheque for Rs.1,15,000/- on
25.04.2013, the very same date of borrowing which sounds ill-logic as
canvassed by the learned counsel for the revision petitioner.
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Crl.R.C.No.128 of 2020
7. This Court though convinced about the ill-logic of borrowing
money of Rs.1,15,000/-, and issuing the cheque on very same day and the
vendor presenting the cheque on very same day defines logic. On
perusing the complaint, it is not only the cheque marked as Ex.P1 for
Rs.1,15,000/-, the complaint is also for issuance of cheque marked as
Ex.P2 for a sum of Rs.35,000/- and the said cheque is dated 19.02.2013.
Even if the Court disbelieves the enforceable liability and recording
Ex.P1-cheque for Rs.1,15,000/-, the said reasoning will not be applicable
for the cheque marked as Ex.P2, which was issued on 19.02.2013. For
issuing a cheque without fund is an offence under Section 138 of
Negotiable Instruments Act. Out of two cheques Ex.P1 and Ex.P2, there
is no reason to disbelieve the case of the complainant atleast in respect of
Ex.P2 cheque issued for Rs.35,000/- without sufficient fund in the
account. Therefore, the offence under Section 138 of N.I.Act is made out
and proved positively. But only to look into whether the sentence imposed
by the trial Court confirmed by the first appellate Court is adequate.
8. Considering the cheque amount and the sentence imposed,
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Crl.R.C.No.128 of 2020
this Court is of the opinion that to meet the ends of justice, if the accused
pay a sum of Rs.70,000/- as compensation to the complainant within a
period of one month. The imprisonment shall be modified.
9. In the result, this Criminal Revision Case is partly allowed
with the modification of the sentence to the effect that the accused shall
pay the compensation of Rs.70,000/- within 30 days from today, failing
which he shall undergo 3 months Simple Imprisonment.
06.06.2023
Internet : Yes/No
Index: Yes/No
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To
1.The II Additional District and Sessions Judge, Erode.
2.The Judicial Magistrate, Fast Track Court No.I, Erode.
Dr.G.JAYACHANDRAN, J.
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Crl.R.C.No.128 of 2020
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Crl.R.C.No.128 of 2020
06.06.2023
https://www.mhc.tn.gov.in/judis
