G.Irusappan v. Santhakumari

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27.07.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.533 of 2007G.Irusappan ... Petitioner vs.Santhakumari ... RespondentPrayer: Petition filed under Section 397 and 401 of Cr.P.C. againstthe judgment passed by the II Additional Sessions Judge atPondicherry in Crl.A.No.30 of 2003 dated 28.3.2007, convicted thepetitioner under Section 138 of Negotiable Instruments Act andsentenced to undergo simple imprisonment for one year and also to paya fine amount of Rs.5,000/-, in default to pay the fine amount, thepetitioner/accused shall undergo simple imprisonment for one month,which confirmed the judgment in STR No.5778 of 2000 passed by thelearned Judicial Magistrate No.1, Pondicherry dated 21.7.2003,seeking to set aside the same and acquit the petitioner.For Petitioner : No appearanceFor Respondent: Mr.I.Ilanthirayan O R D E RAnimadverting upon the judgment dated 28.3.2007, passed bythe II Additional Sessions Judge at Pondicherry in Crl.A.No.30 of2003, confirming the judgment dated 21.7.2003 passed by the learnedJudicial Magistrate No.1, Pondicherry in STR No.5778 of 2000, thiscriminal revision is focussed. 2. Tersely and briefly, pithily and precisely the relevantfacts which are absolutely necessary and germane for the disposal ofthis revision would run thus: (a) The respondent herein filed the complaint under Section 138of the Negotiable Instruments Act as against the revision petitioner.(b) Inasmuch as the revision petitioner pleaded not guilty,trial was conducted. During trial, on the prosecution side, P.Ws.1to 3 were examined and Exs.P1 to P7 were marked. On the defence side,D.Ws.1 and 2 were examined and Exs.D1 to D4 were marked.(c) Ultimately, the trial Court found the accused guilty, andsentenced him to undergo punishment as under: https://hcservices.ecourts.gov.in/hcservices/ -----------------------------------------------------------------Case No.Offence Punishment imposed-----------------------------------------------------------------STR No.U/s 138 NI Act One year S.I. and a 5778 of 2000 fine amount of Rs.5,000/- in default, one month S.I.-----------------------------------------------------------------3. Animadverting upon such judgment of the lower Court,C.A.No.30 of 2003 was filed for nothing, but to be confirmed by theappellate Court in all aspects.4. Challenging and impugning the judgments of both the Courtsbelow, this revision has been filed on various grounds, the warp andwoof of them would run thus:5. Both the Courts below fell into error in not considering thefact that pre litigation notice was not served on the revisionpetitioner. In Ex.P1, cheque, only the signature of the accused isfound and the body of it was filled up by somebody else. 6. Despite printing the name of the learned counsel for therevision petitioner, none appeared. However, the learned counsel forthe respondent argued the matter.7. The point for consideration is as to whether there is anyperversity or non-application of law in recording the conviction andimposing the sentence by both the Courts below? 8. The learned counsel for the respondent would appositely andappropriately invite the attention of this Court to the fact thatboth the Courts below were right in holding that pre suit notice wasproperly sent by the respondent herein and it was the revisionpetitioner who avoided the notice being served on him. Even duringcross examination, D.W.2 (accused) has admitted that he continues tostay in the same address which is found on the returned registeredenvelope "as not claimed".9. It is a common or garden principle of law that the Courts arejustified normally in believing the postal endorsement as 'notclaimed', unless it is challenged as a fraudulent endorsement.Accordingly the Courts below held that the notice was properly sentto the accused. P.Ws.2 and 3, the Bank officials spoke clearly aboutthe bouncing of the cheque. D.W.1 is the husband of the respondentherein, namely the complainant and the accused happened to be acontractor and it seems they were known to each other. The plea ofthe accused that he issued some cheques which were misused by thepetitioner, has not been fortified by any clinching evidence andregarding finding of fact is concerned, the first appellate Court isthe last Court of facts and there is no perversity in understandingthe factual evidence. Hence, I am of the considered opinion that nointerference is warranted. https://hcservices.ecourts.gov.in/hcservices/

10. At this juncture, my mind is redolent and reminiscent of thefollowing decisions of the Hon'ble Apex Court:(i) 2002(6) SCC 650- Bindeshwari Prasad Singh alias B.P.Singhand Others vs. State of Bihar (now Jharkhand) and another; an excerptfrom it would run thus:"13. The instant case is not one where any suchillegality was committed by the trial court. In theabsence of any legal infirmity either in theprocedure or in the conduct of the trial, there wasno justification for the High Court to interfere inexercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a findingdifferent from the trial court. In the absence ofmanifest illegality resulting in grave miscarriage ofjustice, exercise of revisional jurisdiction in suchcases is not warranted.14. We are, therefore, satisfied that the HighCourt was not justified in interfering with the orderof acquittal in exercise of its revisionaljurisdiction at the instance of the informant. It maybe that the High Court on appreciation of theevidence on record may reach a conclusion differentfrom that of the trial court. But that by itself isno justification for exercise of revisionaljurisdiction under Section 401 of the Code ofCriminal Procedure against a judgment of acquittal.We cannot say that the judgment of the trial court inthe instant case was perverse. No defect of procedurehas been pointed out. There was also no improperacceptance or rejection of evidence nor was there anydefect of procedure or illegality in the conduct ofthe trial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee andOthers vs. State of W.B.and others, an excerpt from it would run thus:"22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by theHigh Court only in very exceptional cases where the HighCourt finds defect of procedure or manifest error of lawresulting in flagrant miscarriage of justice."A bare perusal of the said precedents would demonstrate and displaythat the revisional court is not expected to interfere with thefindings given by the courts below and if there is any perversityor non-application of law on the part of them, the question ofrevisional court interfering with the findings would arise. https://hcservices.ecourts.gov.in/hcservices/

11. I could see no perversity in rendering of judgments by theCourts below; wherefore I do not find fault with the convictionrecorded under Section 138 of the Negotiable Instruments Act.However, regarding sentence is concerned, for the sum ofRs.1,50,000/-, one year imprisonment has been given, which isdisproportionate to the offence committed. Hence, awarding threemonths imprisonment would meet the ends of justice. Accordingly thesentence is reduced from one year simple imprisonment to three monthssimple imprisonment and the rest of the judgment shall remain in tact.In the result, this criminal revision case is partly allowed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarGmsTo1. II Additional Sessions Judge at Pondicherry.2. The Judicial Magistrate No.1, Pondicherry.1 cc To Mr.Sai Bharath & Ilan, Advocate, SR.34638Crl.R.C.No.533 of 2007rl(co)pmk.19.8.2009