Madras High Court
S.Muniyasamy vs Dharani on 2 August, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
Crl.RC.Nos.1094 & 1120 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2024
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Crl.RC.Nos.1253 and 1254 of 2024
and
Crl.M.P.Nos.10965 and 10966 of 2024
S.Muniyasamy ...Petitioner in both Crl.RC's.
Vs.
Dharani ...Respondent in both Crl.RC's.
Common Prayer: Criminal Revision Cases filed under Sections 397 r/w
401 of the Criminal Procedure Code to call for the records in Crl.A.Nos.9
and 10 of 2021 on the file of the Principal District and Sessions Court,
Chengalpattu and set aside the judgment dated 28.03.2023 confirming the
conviction ordered in C.C.No.114 of 2019 and 388 of 2018 dated
05.01.2021 passed by the Judicial Magistrate, Fast Track Court Alandur,
Chennai and thereby acquit the petitioner herein.
In both Crl.RC's.:
For Petitioner : Mr.J.Deepak Gandhi
For Respondent : Party-in-Person
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Crl.RC.Nos.1094 & 1120 of 2024
COMMOM ORDER
These Criminal revision cases have been filed seeking quashment of
the judgment passed by the Principal District and Sessions Court,
Chengalpattu in Crl.A.Nos.9 & 10 of 2021 dated 28.03.2023 confirming
the order passed in C.C.No.114 of 2019 & 388 of 2018 dated 05.01.2021 by
the learned Judicial Magistrate, Fast Track Court Alandur, Chennai.
2. The petitioner is the accused and the respondent is the defacto
complainant. For the sake of convenience, the parties will be hereinafter
referred to as 'accused' and 'complainant'.
3. The complainant initiated proceedings under Section 138 of the
Negotiable Instruments Act in C.C.No.114 of 2019 & 388 of 2018 before
the learned Judicial Magistrate, Fast Track Court Alandur, Chennai, against
the accused stating that the accused obtained hand loan from the
complainant in order to complete his construction work and towards
discharge of his liability, the accused issued three cheques for a sum of
Rs.9,06,000/-. When the said Cheques were presented for collection, the
same were returned for want of necessary funds. Thereafter, the complainant
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Crl.RC.Nos.1094 & 1120 of 2024
issued legal notices dated 14.02.2019 and 17.10.2018 respectively and the
same were received by the accused, however, the accused failed to repay the
cheque amounts.
4. After elaborate discussions, the trial Court convicted the petitioner
under Section 138 of the Negotiable Instruments Act and sentenced him to
undergo simple imprisonment for three months and was ordered to pay a
fine of Rs.21,000/- and in default to undergo two months simple
imprisonment in C.C.No.388 of 2018 and sentenced him to undergo simple
imprisonment for six months and was ordered to pay a fine of
Rs.15,00,000/- and in default to undergo three months simple imprisonment
in C.C.No.114 of 2019. Challenging the same, the petitioner filed appeals in
Crl.A.Nos.9 and 10 of 2021 and the Principal District and Sessions Court,
Chengalpattu, vide separate judgment dated 28.03.2023, dismissed the
appeals and confirmed the conviction and sentences passed by the trial
Court. Aggrieved by the same, the present revisions have been filed.
5. Learned counsel for the petitioner submitted that during the
pendancy of these revisions, the petitioner and the respondent arrived at a
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Crl.RC.Nos.1094 & 1120 of 2024
compromise and the petitioner agreed to pay a sum of Rs.5,00,000/-. The
respondent/complainant also acceded to the same and has consented for
compounding the offence under Section 138 of the NI Act.
6. To that extent, Compromise Memo dated 06.07.2024 duly signed
by the petitioner and the respondent has been filed by the parties before this
Court today.
7. In the case of Damodar S. Prabhu Vs. Syed Babalal H.,
reported in [2010 (5) SCC 663], the Full Bench of the Hon'ble Supreme
Court has held that where the offences are essentially of a private nature and
relatively not quite serious, the Code considers it expedient to recognise
some of them as compoundable offencs and some others are compoundable
only with the permission of the Court. In this regard, it is useful to extract
hereunder paragraphs 16 and 17:
''16. It is evident that the permissibility of the
compounding of an offence is linked to the perceived seriousness
of the offence and the nature of the remedy provided. On this
point we can refer to the following extracts from an academic
commentary [cited from : K.N.C. Pillai, R.V.Kelkar's Criminal
Procedure, Fifth Edn. (Lucknow: Eastern Book Company, 2008)
at p.444]
''17.2. Compounding of offences .-- A crime
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Crl.RC.Nos.1094 & 1120 of 2024
is essentially a wrong against the society and the
State. Therefore any compromise between the
accused person and the individual victim of the
crime should not absolve the accused from
criminal responsibility. However, where the
offences are essentially of a private nature and
relatively not quite serious, the Code considers it
expedient to recognise some of them as
compoundable offences and some others as
compoundable only with the permission of the
Court.''
17. In a recently published commentary, the following
observations have been made with regard to the offence
punishable under Section 138 of the Act [cited from : Arun
Mohan, some thoughts towards law reforms on the topic of
Section 138, Negotiable Instruments Act – Trackling an
avalanche of cases (New Delhi: Universal Law Publishing Co.
Pvt. Ltd., 2009) at p.5]:
''...Unlike that for other forms of crime, the
punishment here (insofar as the complainant is
concerned) is not a means of seeking retribution,
but is more a means to ensure payment of money.
The complainant's interest likes primarily in
recovering the money rather than seeking the
drawer of the cheque in jail. The threat of jail is
only a mode to ensure recovery. As against the
accused who is willing to undergo a jail term, there
is little available as remedy for the holder of the
cheque.''
8. With the above principles in mind, if this Court see the present
case, it is only a money transaction and the respondent/complainant has also
received a Demand draft bearing No.837778 dated 05.07.2024 drawn on
Tamilnadu Mercantile Bank Ltd., Sayalgudi branch for a sum of
Rs.5,00,000/- from the petitioner/accused and in this regard a memo of
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Crl.RC.Nos.1094 & 1120 of 2024
compromise has also been jointly filed by the petitioner and complainant.
Therefore, the complainant's interest lies primarily in recovering the money
rather than seeking the drawer of the cheque in jail. Further Section 147 of
the Negotiable Instruments Act also empowers this Court to compound the
offence under section 138 of the Negotiable Instruments Act.
9. In view of the ratio laid down by the Honourable Supreme Court of
India and also considering the memo of compromise filed by the parties, this
Court is of the view that the order dated 05.01.2021 in CC.Nos.388 of 2018
and 114 of 2019 on the file of the Judicial Magistrate Court, Fast Track
Court (Magisterial Level), Alandur, Chennai is liable to be set aside.
10. It is reported that the revision petitioner is in jail in connection
with this case. The Revision petitioner, who is presently detained in Central
Jail I, Puzhal, is directed to be released forthwith unless his presence is
required in connection with any other case.
11. Accordingly, the conviction and sentence imposed on the revision
petitioner/accused in C.C.No.114 of 2019 and 388 of 2018 dated 05.01.2021
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on the file of the Judicial Magistrate Court, Fast Track Court (Magisterial
Level), Alandur, Chennai which was confirmed by the Principal District and
Sessions Court, Chengalpattu in Crl.A.Nos.9 & 10 of 2021 dated 28.03.2023
are set aside and these criminal revisions are allowed. The revision
petitioner/accused is acquitted from all the charges levelled against him.
12. These Criminal revision cases are accordingly allowed. In view of
the order passed in the above revision petitions, consequently connected
miscellaneous petitions seeking suspension of sentence are closed.
02.08.2024
Note to Office: Issue order copy today ie.,02.08.2024
rap
Speaking Order : Yes/ No
Index : Yes/ No
Internet : Yes/ No
M.DHANDAPANI, J.
rap
To
1. The Principal District and Sessions Court, Chengalpattu
2. The Judicial Magistrate, Fast Track Court Alandur, Chennai
https://www.mhc.tn.gov.in/judis
Crl.RC.Nos.1094 & 1120 of 2024
Crl.RC.Nos.1253 and 1254 of 2024
02.08.2024
https://www.mhc.tn.gov.in/judis
