M/s. Sri Renugaa Spin Winners Rep. By its Partner V.Raju Kalapatty, Nehru Nagar, Coimbatore v. Lakshmi Ammal

Bail SlipThat the 2nd Petitioner / Accused viz.V.Raju, S/o. VenkudusamyNaidu was directed to be released on Bil as per order of this Courtdated 20.6.07 made in M.P.1/07 in Crl.R.C.No.894/07 on the file ofthis Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDated:29.04.2009CoramThe Honourable Mr. Justice S.TAMILVANANCrl. R.C.No.894 of 20071. M/s. Sri Renugaa Spin Winners Rep. By its Partner V.Raju Kalapatty, Nehru Nagar, Coimbatore.2. V.Raju .. Petitioners / Accused vs.Lakshmi Ammal .. Respondent /ComplainantPRAYER :Revision filed under Sections 397 & 401 of CriminalProcedure Code against the Judgment, dated 29.05.2007 made inC.A.No.118 of 2006 on the file of the Additional District SessionsJudge-cum-Fast Track Court No.I, Erode, confirming the Judgment,dated 29.03.2006 made in C.C.No.700 of 2004 on the file of theJudicial Magistrate No.III, Erode.For petitioners :Mr.C.ChokkalingamLegal Aid CounselFor respondent : Mrs.Lakshmi AmmalParty-in-personO R D E RThis Criminal Revision Petition has been preferred against theagainst the Judgment, dated 29.05.2007 made in C.A.No.118 of 2006 onthe file of the Additional Sessions Judge-cum-Fast Track Court No.I,Erode, confirming the Judgment, dated 29.03.2006 made in C.C.No.700of 2004 on the file of the Judicial Magistrate No.III, Erode. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioners herein were accused before the trial court.Based on the complaint given by the respondent under Section 138 r/w142 of the Negotiable Instruments Act, the case was taken on file.After the trial, the learned Judicial Magistrate No.III, Erode,convicted the accused, under Section 138 r/w 142 of NegotiableInstruments Act, whereby imposed a fine of Rs.5,000/- to the firstpetitioner and in default of payment of fine amount, one month simpleimprisonment to A2 and the second petitioner / A2 was furthersentenced to undergo one year simple imprisonment and to pay a fineof Rs.4,000/- with default sentence. Aggrieved by which, thepetitioners herein preferred appeal in C.A.No.118 of 2006. Thelearned Additional Sessions Judge, Erode, confirmed the convictionand sentence and dismissed the appeal. Aggrieved by which, thepetitioners have preferred this criminal revision.3. Though the respondent / complainant was present, continuouslythere was no representation for the petitioners. Since the revisionpetitioners were convicted accused, this Court find it just andreasonable to appoint Mr.C.Chokkalingam, counsel from the Legal AidPanel to defend the case of the petitioners / accused, accordingly,he appeared and argued for the petitioners.4. Learned counsel appearing for the petitioners submitted thatthe respondent / complainant has not established that the cheque wasissued for a legally enforceable debt and that the same was issuedonly for security purpose, which was not considered by the courtsbelow.5. The respondent / complainant, party-in-person submitted thatthere is a concurrent finding by the trial court and the appellatecourt, which is based on the evidence available on record. Therespondent drew the attention of this Court to the oral anddocumentary evidence. It is seen that the respondent / complainantherself was examined as P.W.1, apart from examining P.W.2. Thedishonoured cheque, dated 11.06.2001 issued by the second petitioner,as partner of the first petitioner firm was marked as Ex.P.1. In thecomplaint as well as in the oral evidence, the respondent herein hasstated that on 11.05.2001, an amount of Rs.2,59,873/- was due andpayable by the petitioners to the respondent for the amount received,for which Ex.P.1, cheque was issued by the petitioners / accused.When the same was sent for collection to the Indian Overseas Bank,Peelamedu Branch through the respondent's bank, Bank of India,Coimbatore branch, the same was dishonoured due to insufficient fundsin the account. Subsequently, after issuing legal notice, therespondent filed a complaint under Section 138 r/w 142 of theNegotiable Instruments Act. The memo of the bank sent along with thedishonoured cheque was marked as Ex.P.2. The copy of the legalnotice, acknowledgement and other documents were marked as Exs.P.3 toP.8 before the trial court. https://hcservices.ecourts.gov.in/hcservices/

6. Considering the evidence available on record and thearguments advanced by both sides, the trial court found that thepetitioners / accused were guilty under Section 138 r/w 142 of theNegotiable Instruments Act. In the appeal, the learned AdditionalSessions Judge, by the impugned Judgment, dated 29.05.2007 hasconfirmed the conviction and sentence imposed by the trial court. Ithas been established that the cheque, dated 11.06.2001 was issued bythe petitioners herein, but that was dishonoured only due toinsufficient funds in the account.7. Even in the grounds, the petitioners herein have stated thatthe cheque amount was settled by way of return of goods by thepetitioners, therefore, the issuance of the Ex.P.1, cheque has beenclearly admitted by the petitioners / accused. As found by the courtsbelow, the respondent / complainant has established that the chequewas issued by the petitioners / accused for the amount due andpayable to the respondent / complainant. As the defence raised by thepetitioners in the grounds is that the cheque amount was settled byway of return of goods, hence, the burden is on the petitioners toprove that the cheque amount was paid or settled, as stated by them.As the petitioners / accused have raised a defence that the chequeamount was settled by return of goods, the plea raised by the learnedLegal Aid Counsel that the respondent had failed to establish thatthe cheque issued was towards legally enforceable debt is notsustainable, as the plea of the petitioners / accused in the groundsis only discharge of the debt. There is no evidence from thepetitioners / accused to show that the cheque amount was paid and thedues were settled, by way of return of goods.8. It is a settled proposition of law that this Court cannotinterfere with the concurrent finding of the courts below, unless thefinding of the courts below is perverse. In order to decide theconcurrent findings as perverse, such finding must be againstevidence or without evidence. In the instant case, both the Courtshave concurrently held that the guilt against the petitioners /accused has been proved under Section 138 r/w 142 of the NegotiableInstruments Act, only based on the evidence available on record andtherefore, this Court is of the view that the finding of the Courtsbelow is legally sustainable, which cannot be construed as perverse.Therefore, the respondent / complainant has established her claimbeyond reasonable doubt. Though the revision has been preferred bythe petitioners / accused, they were continuously remained absent.Though the respondent is a woman coming from Coimbatore for attendingthe case, she is driven from pillar to post by the petitioners /accused.9. The cheque amount payable was Rs.2,59,873/-, however, theCourt below has not passed any order directing the petitioners / https://hcservices.ecourts.gov.in/hcservices/ accused to pay compensation to the respondent, though thecompensation awarded shall be upto double the cheque amount andtherefore, I am of the view that the mere sentence of one year simpleimprisonment imposed on the second petitioner and the total fine ofRs.9,000/- would not meet the ends of justice, as there was nocompensation awarded, based on the cheque amount to the respondent /complainant.10. As it is a clear case, which has been established underSection 138 r/w 142 of the Negotiable Instruments Act, confirming theJudgment of the Court below, this revision is liable to be dismissed,accordingly, this Criminal Revision Petition is dismissed. However,to meet the ends of justice, I modify the sentence and thereby directthe petitioner to pay a sum of Rs.3 lakhs towards the cheque amountwithin eight weeks from the date of receipt of a copy of this order,instead of undergoing the sentence imposed by the Courts below. Ifthe sum of Rs.3 lakhs is not paid, the second petitioner / accused,who issued the cheque on behalf of the first petitioner / A1, shallundergo the period of imprisonment, imposed, as per the impugnedJudgment of the Courts below. Mr.C.Chokkalingam, Legal Aid Counsel isentitled to get remuneration of Rs.1,500/- (Rupees one thousand fivehundred only). Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrartsvnTo1. The Additional District Sessions Judge-cum- Fast Track Court No.I, Erode 2. -Do-Through The Principal Sessions Judge, FTC, Erode 3. The Judicial Magistrate No.III, Erode.4. -Do-Thro The chief Judicial Magistrate, Erode.5.The Public Prosecutor, High Court, Madras.+1 cc to Mr.N.Lakhsmi Party in Person, Advocate, SR.No.19326+1 cc to Mr.R.Rajan, Advocate, SR.No.19743 Crl.R.C.No.894 of 2007CK(CO)SRA(15/05/2009)