Judgment · High Court · 2007

9(b)The learned counsel Mr.D.Selvaraju appearing for the revisionpetitioner/accused would fairly admit that the accused has not issued anyreply notice for the notice issued by the complainant which was receivedby him under Ex.P.6-acknowledgment. But only thing to be gone into inthis revision is that both the Courts below have awarded six months RI andalso slapped a fine of Rs.2,500/- with default sentence.9(c) The learned counsel appearing for the revision petitionerrelying on Vol-XII 1994(3) Crimes 1014 (Ishvarbhai Fuljibhai Patni Vs.State of Gujarat), would contend that the first appellate Court has failedto look into the evidence let in by the accused in defence, which has beendeprecated by the Honourable Apex Court in the above said ratio. Theexact observation of the Honourable Apex Court in the above said ratioreads as follows:-"For this purpose, the record was called for and afterperusal of the original record, we are satisfied about thecorrectness of the aforesaid conclusion.

It is very muchwarranted by the evidence on record and the learned SessionsJude, Ahmedabad, after taking into consideration the entrirematerial placed before him and properly appreciating thearguments advanced on either side has held that the accused- https://hcservices.ecourts.gov.in/hcservices/ appellant is guilty. We therefore, would not interfere in thismatter for the reasons stated above and the matter is dismissed. "The above observation has been extracted only from thejudgment of the High Court in the appeal. "A reading of the above judgment will go to show that the Gujarat HighCourt without any discussion has simply narrated the case of theprosecution and after hearing the arguments, has held that the appellantis guilty without discussing the evidence let in by the accused in defence.9(d)In the case on hand, the accused had examined one Matheswari onhis side and also exhibited Ex.D.1, finance registration copy.

D.W.1-Matheswari would depose that she had conducted a chit along with Murugesan, Rajeshwari, Kumarevel, Ravi, Rajamani, Moorthi, Sakthivel, Rajathi and Arumugam in the name and style of Sri Maga Ganapathy Financefrom 3.6.1993 and that the said chit was conduced for 5 years from3.6.1993 and since it incurred loss, they have stopped the running of thechit and that in the above said chit the accused was an AssistantAdministrative Partner and in the said chit the accused had given unfilledcheques to one Murugesan and that in turn the said Murugesan had handedover those cheques to Rajathi's husband Venkadachallam and that the saidVenkatachalam might have handed over the cheques to the presentcomplainant Venkatachalam, who had used those cheques in this case. But aperusal of Ex.P.1 & Ex.P.2 cheques will go to show that they have beendrawn by the accused in the name of P.Venkatachalam, the complainantherein.

Further it is not in evidence that Venkatachalam, the husband of Rajathi referred to by D.W.1 has not preferred any complaint against thepresent complainant regarding the forgery of Ex.P.1 & Ex.P.2 by thiscomplainant. Further, admittedly for the notice issued by the complainantunder the original of Ex.P.5 which was received by the accused underEx.P.6, the accused has not sent any reply. Under such circumstances, theaccused cannot be heared to say the defence raised through D.W.1. Thedefence put forward by D.W.1 on behalf of the accused herein was not atall raised by the accused in this case by way of any reply notice. Undersuch circumstances, the contention of the learned Counsel that the defenceraised by the accused through D.W.1 was not given due consideration by thefirst appellate Court cannot hold any water. 9(e)The learned counsel appearing for the accused relying on 2003 Crl.L.J, 4766 (Hsanba @ Hassinar Vs.

State of karnataka), would contendthat a Court sitting in review of the judgment of the Courts below mustalso give due consideration to the evidence let in by the parties beforethe trial Court. The same principle has been taken in the judgmentreferred to by the learned counsel for the accused Vol-XII 1994(3) Crimes1014 (Ishvarbhai Fuljibhai Patni Vs. State of Gujarat). As I have alreadyheld that the accused, who had not raised any defence by way of his replynotice, cannot let in any evidence through his witness raising a newdefence during the trial. Further in this case, there is absolutely noevidence to show that Ex.P.1 & Ex.P.2, impugned cheques, were handed overby one Venkatachalam, husband of Rajathi, to the present complainantVenkatachalam. Under such circumstances, the ratio referred to by the https://hcservices.ecourts.gov.in/hcservices/ learned counsel appearing for the revision petitioner/accused will not beof any use to him in this revision.9(f)In view of the ratio laid down by the Honourable Apex Courtin 2004(2) SCC 235 (Goa Plast (P) Ltd.

Vs. Chico Ursula D'Souza),instead of awarding rigorous imprisonment, twice the amount of the chequeis to be directed to be paid by the accused to the complainant by way ofcompensation. The exact observation of the Honourable Apex Court in theabove said raito in this regard runs as follows:-"We have no doubt that the respondent has committed anoffence punishable under the provisions of Section 138 of the NIAct and is liable to be punished. The transaction in questiontook place between the parties in the year 1993, therefore, Section 138, as it stood at the relevant time, would beapplicable to the present case. Section 138 providesimprisonment for a term which may extend to one year, or withfine which may extend to twice the amount of the cheque, or withboth. Section 138 has now been amended and the penalty ofimprisonment for a term which may extend to one year has beensubstituted by two years as provided by the amending Act of 2002and the fine which may extend to twice the amount of the cheque.

This has been prescribed as the punishment for the offence under Section 138 of the Act. The object and the ingredients under the provisions, inparticular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends uponthe integrity and honesty of the parties. In our country, in alarge number of commercial transactions, it was noted that thecheques were issued even merely as a device not only to stallbut even to defraud the creditors. The sanctity and credibilityof issuance of cheques in commercial transactions was eroded toa large extent. Undoubtedly, dishonour of a cheque by the bankcauses incalculable loss, injury and inconvenience to the payeeand the entire credibility of the business transactions withinand outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthysubstitute for cash payment enacted the aforesaid provisions.

The remedy available in a civil Court is a long-drawn matter andan unscrupulous drawer normally takes various pleas to defeatthe genuine claim of the payee. After observing thus, the Honourable Apex Court concluded byordering the compensation as twice the amount of the cheque.I am of the opinion that the same yardstick can be followed in thisrevision also. Point is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/