Madras High Court
K.Ganesan vs The State Rep By on 8 March, 2023
Crl.R.C.No.137 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :08.03.2023
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.R.C.No.137 of 2020
&
Crl.M.P.Nos.952 and 954 of 2020
K.Ganesan .. Petitioner
/versus/
1.The State rep by
Public Prosecutor,
Coimbatore.
2.P.Venkatachalapathy .. Respondent
Prayer : Criminal Revision Case has been filed under Section 397 and
401 of Cr.P.C., to set aside the conviction imposed in the judgment dated
12.04.2019 made in C.A.No.77 of 2018 on the file of the learned I
Additional District and Sessions Court, Coimbatore modifying the
judgmet dated 01.02.2018 made in C.C.C.no.148 of 2016 on the fie of the
learned Judicial Magistrate, Fast Track Court Level-II, Coimbatore by
allowing this Criminal Revision Petition.
For Petitioner :Mr.K.Sudhakar
For Respondents : Mr.R.Kishore Kumar
Government Advocate(crl.side) for R1
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Crl.R.C.No.137 of 2020
ORDER
This Criminal Revision Case is directed against the judgment of
conviction passed by the learned Judicial Magistrate, Fast Track Court
Level-II, Coimbatore and confirmed by the learned I Additional District
and Sessions Court, Coimbatore. As far as the sentence is concerned, the
trial Court imposed one year SI and compensation of Rs.1,20,000/- with
interest at the rate of 6% payable to the complainant. The lower appellate
Court modified the sentence from one year SI to three months SI and
confirmed the order of compensation passed by the trial Court. Aggrieved
by that, the present Criminal Revision Case has been filed.
2. The brief facts of the case leading to the revision petition is that,
the revision petitioner/accused for his urgent family needs and business
purpose, received a loan of Rs.1,20,000/- from the
respondent/complainant during the month of December 2013. He
executed a pro-note on 09.12.2013 promising to repay the same within a
year. Before expiry of the one year period, the accused gave two cheques
each for Rs.60,000/-, dated 10.12.2014 and 21.12.2014 respectively
bearing Nos. 152588 and 152589 drawn on Canara Bank,
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Crl.R.C.No.137 of 2020
Kannampalayam Branch. When those cheques were presented for
collection through the complainant's bank viz., City Union Bank,
Villankurichi Branch, the same were returned with a memo “funds
insufficient”. Hence, after causing statutory notice dated 06.02.2015
calling upon the accused to pay the amount, the private complaint has
been filed. The trial Court has taken cognizance of the complaint in
C.C.No.148 of 2016.
3. To prove the complaint, the complainant himself was examined
as PW-1 and he has marked 6 exhibits. The accused has not chosen to let
in any evidence. In fact, the trial Court has recorded that even after
affording opportunity, the accused has not even cross examined the
complainant in full. No defence was put forth by the accused to rebut the
presumption by preponderance of probability except denied the
incriminating evidence put forth to him under Section 313 of Cr.P.C.
Therefore, the trial Court held that the accused/revision petitioner guilty
of offence under Section 138 of the Negotiable Instruments Act, 1881 and
sentenced him as stated above.
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Crl.R.C.No.137 of 2020
4. On appeal, the lower appellate Court in Crl.A.No. 77 of 2018
vide order dated 12.04.2019 re-appreciating the evidence and the grounds
of appeal that, he was not given adequate opportunity to cross examine the
complainant and further, the order directing to pay compensation with 6%
interest is beyond the power vested with the Judicial Magistrate under the
Negotiable Instruments Act,1881. The lower appellate Court, after
examining the records held that, the trial Court has given adequate
opportunity on either side to let in evidence, but the accused right from the
inception availed the opportunity. Though statutory notice was received
by the accused, he has not chosen to reply the same. Inspite of
adjournments affording opportunity to cross examine PW-1, he partly
cross examined the witness and subsequently, did not cross examine the
witness, though the witness was present. For that reason, confirmed the
conviction, however, modified the period of imprisonment from one year
SI to 3 months SI, but had not interfered with the order regarding payment
of compensation with interest at the rate of 6%.
5. The present revision case is filed on the ground that even if the
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Crl.R.C.No.137 of 2020
complainant has not been fully cross examined, Exs.P1 to P6 relied on by
the complainant, does not prove the fundamental fact to draw the
presumption under Section 139 of the Negotiable Instrument Act, 1881.
The complainant though claims that the accused has executed the pronote,
while borrowing the money, but took back the pronote after giving the
cheque is highly improbable and no money lender will return the pronote
without ascertaining the realisation of the cheque amount. Further, the
learned counsel also contended that the statutory notice (Ex.P5) was not
served on the accused and the same was returned 'unserved'. Therefore, it
cannot be construed as deemed service. Cause of action under Section
138 of NI Act will arise only on issuance of the statutory notice within 30
days from the date of receipt of intimation from the bank and if the drawer
of the cheque fails to pay the cheque amount, within 15 days from the date
of receipt of the notice. Whereas, in this case, having not proved the due
service of notice, the trial Court ought not have taken cognizance under
Section 138 of the Negotiable Instruments Act, 1881 and more so, ought
not to have taken presumption under Section 139 of the Negotiable
Instruments Act, 1881.
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Crl.R.C.No.137 of 2020
6. This Court, on perusing the exhibits, particularly, Ex.P5 and
Ex.P6 finds that, the statutory notice is dated 06.02.2015 (Ex.P5). This has
been issued by the complainant, after return of the cheque on 24.01.2015.
In fact, this was the second presentation of the cheque and as per the
complaint, when the cheque was presented earlier and returned with an
endorsement “fund insufficient”, the accused pleaded that he was not able
to honour the cheque due to ill-health and assured that the cheque will be
honoured after one month. Accordingly, the complainant has represented
the cheque on 24.01.2015. However, the same got returned on 24.01.2015.
The returned postal acknowledgement, which is marked as Ex.P6
indicates that the postal authorities have left the intimation to the
addressee. However, he has not collected from the post office. Hence, it
has been returned.
7. It is not the case of the accused that the statutory notice was not
sent to his address or not to sent him at all. His fault not collecting the
notice inspite of intimation left by the postal authorities. He cannot take
advantage of his own fault and therefore, this Court finds no illegal or
perversity in the order passed by the Courts below. So far as the sentence
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Crl.R.C.No.137 of 2020
has been modified by the lower appellate Court from one year SI to 3
month SI. However, regarding the compensation, the trial Court has
awarded Rs.1,20,000/- being the cheque amount with 6% interest payable
from the date of cheque. It is not the civil suit where the drawer of the
cheque is liable to pay the cheque amount with interest. As per the statute,
the compensation can be awarded upto twice the cheque amount and it is
the discretion of the Court. But the twice the cheque amount cannot be by
way of interest, even if it comes below twice the cheque amount. In other
words, even if 6% interest for Rs.1,20,000/- is less than Rs.1,20,000/-, it
will not fall within the definition of twice the cheque amount as
contemplated under Section 138 of the Negotiable Instruments Act, 1881.
Therefore, this Court finds that there is an error in imposing interest for
the cheque amount. Pointing out the said error, the revision petition is
disposed of by confirming the conviction and sentence of three months SI
with compensation of Rs.1,20,000/- payable to the respondent/
complainant.
8. Learned counsel appearing for the petitioner states that the appeal
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Crl.R.C.No.137 of 2020
was filed with a delay and the condone delay petition was taken up for
consideration, this Court finds in compliance with the conditional order, a
sum of Rs. 49,000/- was paid to the complainant by way of Demand Draft.
If it is so, the revision petitioner is liable to pay the balance amount,
within a period of three weeks, from the date of receipt of a copy of this
order, in default to pay the compensation, one month SI.
9. With the above direction, this Criminal Revision Case is disposed
of. Consequently, connected Miscellaneous Petitions are closed.
08.03.2023
Index:yes/no
Speaking order/non speaking order
ari
To:
1.I Additional District and Sessions Court, Coimbatore.
2.The Judicial Magistrate, Fast Track Court Level-II, Coimbatore
3.The Public Prosecutor, High Court, Madras.
Dr.G.JAYACHANDRAN, J.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.137 of 2020
ari
Crl.R.C.No.137 of 2020
and
Crl.M.P.Nos.952 and 954 of 2020
08.03.2023
https://www.mhc.tn.gov.in/judis
