THE HONOURABLE MR v. Shahidunnisarep. By his power agentN.Mohideen Sherrif

Crl Rc.No.2103 of 2004 The petitioner/Accused was directed to be released on bail by theorder of this Court dated 4.1.2005 and made in Crl.Mp.12850/04 in CrlRc.No.2103/04.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE :21.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.2103 of 2004A.N.Mohammed Ibrahim ..Petitioner/accusedvs.Shahidunnisarep. By his power agentN.Mohideen Sherrif..Respondent/complainant This Revision is filed against the Judgment dated 24.11.2004 passedby the Additional District and Sessions Judge,Fast Track Court No.2,Salemin C.A.NO.99 of 2003 confirming the Judgment dated 9.7.2003 passed by theJudicial Magistrate No.3, Salem in C.C.No.393 of 1999.For Petitioner : Mr.P.Sathish For Respondent : (Notice served) None appeared. O R D E RThis revision has been preferred against the judgment in C.A.No.99 of2003 on the file of the Additional District and Sessions Judge, Fasttrack Court, No.2, Salem which had arisen out of the Judgment inC.C.No.393 of 1999 on the file of the Judicial Magistrate, No.3, Salem.2. The complainant has preferred a private complaint under Section200 of Cr.P.C. against the accused for an 0ffence punishable under Section138 of Negotiable Instruments Act,1881(hereinafter referred to " the Act"). https://hcservices.ecourts.gov.in/hcservices/

3. The complaint was taken on file by the learned JudicialMagistrate, after taking cognizance of the same and after the accusedappeared on summons, copies under Section 207 of Cr.P.C were furnished andwhen the offence was explained to the accused, the accused pleaded notguilty.4. On the side of the complainant, P.Ws 1 to 3 were examined and ExsP1 to P13 were marked.5. P.W.1 is the Manager of Bank of Madura, Shevapet Branch, who woulddepose that Ex P2 impugned cheque was forwarded by the Indian Bank forcollection and that the same was returned with an endorsement that thereis no sufficient fund in the account of the drawer of the cheque and thatonce again the said cheque was forwarded to his bank on 27.1.1999 forcollection. Even for the second time, the said cheque was returned for thesame reason. Ex P1 is the returned memo along with Ex P2 dishonouredcheque. Ex P3 is the statement of account for the account maintained bythe accused.5b. P.W.2 is the Manager of the Indian Bank. He would admit that Ex P1 cheque was presented in the bank on 27.1.1999 for realisation. Butthe impugned cheque Ex P2 was dishonoured on the ground that there was nosufficient fund in the account of the drawer.5c.P.W.3 is the power of attorney for the Complainant Shahidunnisa,the husband of the complainant. He would admit that the accused hadborrowed a sum of Rs.75,000/- from the complainant and in order todischarge the said loan amount, the accused had drawn Ex P2 impugnedcheque in favour of the complainant. A notice was issued under theoriginal of Ex P6 by the complainant to the accused. Ex P7 is the replynotice. The complainant had sent another notice under the original ofExP8 which was replied by the accused under Ex P9 dated 19.3.1999.6. When the incriminating circumstances were put to the accused, hedenied his complicity with the crime. The accused has examined himself asD.W.1 and Exs D1 to D9 were exhibited.7. After going through the evidence both oral and documentary, thelearned trial Judge has come to a conclusion that the offence underSection 138 of the Act has been proved beyond any reasonable doubt againstthe accused and accordingly convicted and sentenced the accused to undergosix months simple imprisonment and awarded a compensation of Rs.50,000/-with default sentence. Aggrieved by the findings of the learned trialJudge, the accused has preferred an appeal before the Sessions Judge inC.A.No.99 of 2003 on the file of Additional District and Sessions Judge,Fast Track Court, No.2, Salem. The learned first appellate Court , aftergiving due deliberation to the submissions made by the counsel appearingfor both sides, and after scanning the evidence adduced before the trialCourt, has ultimately concurred with the findings of the trial Judge, https://hcservices.ecourts.gov.in/hcservices/ thereby confirming the Judgment of the trial Court, which necessitated theaccused to approach this Court by way of this revision.8. Now the point for determination in this appeal is whether thefindings of the learned trial Judge which was confirmed by the firstappellate Court in C.A.No.99 of 2003 on the file of the AdditionalDistrict Sessions Judge, Fast Track Court No.2, Salem holding that theaccused is guilty under Section 138 of the Act is sustainable to warrantconviction under the said Act?9. Heard Mr.P.Sathish, learned counsel for the revision petitionerand considered his submission. 10.The Point:To warrant conviction under Section 138 of the Act, it must be establishedthat a cheque drawn by a person in order to discharge of any debt or otherliability, on presentation was dishonoured by the bank for the reasonthat the drawer of the cheque had no sufficient money standing to thecredit of his account to honour the cheque. Before the trial Court, it isnot the case of the revision petitioner that he had raised any defence tothe effect that there was no legally enforceable debt or other liabilityfor which the impugned cheque Ex P2 was drawn by him. The accused, whiledeposing before the trial Court as D.W.1, took a defence that at the timeof drawal of the cheque Ex P2 in favour of the complainant, he had handedover the documents relating to his house towards security. He wouldfurther depose that apart from the above said documents, he had alsohanded over five promissory notes to the complainant. He would deny,having drawn a cheque for Rs.75,000/-. But in the cross examination, hewould admit that Ex D1 document stands in the name of his father and notin his name. Even though, he would contend that he had discharged theentire hand loan of Rs.75,000/-, he has not even stated the said fact inhis reply notice Ex P9. Further, he has not produced any documentaryevidence to show that he had already discharged the loan amount ofRs.75,000/-. In Ex P9, he would contend that he had borrowed the loan onlyfrom Mohideen Sherrif, the husband of the complainant. A perusal of Ex P2cheque will go to show that it has been drawn only in the name of thecomplainant Shahidunnisa. The presumption under Section 139 of the Act isthat only after receiving the consideration, Ex P2 impugned cheque wasdrawn by the accused in favour of the complainant.11. Taking into consideration of the above said facts only both theCourts below have concurrently held that the offence under Section 138 ofthe Act has been made out against the accused and accordingly convictedthe accused under Section 138 of the Act.12. Now coming to the question of sentence, the trial Court hasconvicted the accused and sentenced to undergo six months simpleimprisonment and also awarded a compensation of Rs.50,000/- with defaultsentence. In a case of similar nature, the Honourable Apex Court in GoaPlast (P) Ltd.,-v- Chicl Ursula D'Souza(2004)2 Supreme Court Cases 235)has held as follows: https://hcservices.ecourts.gov.in/hcservices/ . . . . .Thus it has to be presumed that a cheque isissued in discharge of any debt or other liability.The presumption can be rebutted by adducing evidenceand the burden of proof is on the person who wants torebut the presumption. This presumption coupled withthe object of Chapter XVII of the Act which is topromote the efficacy of banking operation and toensure credibility in business transactions throughbanks persuades us to take a view that bycountermanding payment of post-dated cheque, a partyshould not be allowed to get away from the penalprovision of Section 138 of the Act. A contrary viewwould render Section 138 a dead letter and willprovide a handle to persons trying to avoid paymentunder legal obligations undertaken by them throughtheir own acts which in other words can be said to betaking advantage of one's own wrong...........We haveno doubt that the respondent has committed an offencepunishable under the provisions of Section 138 of theAct and is liable to be punished. The transaction inquestion took place between the parties in the year1993, therefore, Section 138, as it stood at therelevant time, would be applicable to the presentcase. Section 138 provides imprisonment for a termwhich may extend to one year, or with fine which mayextend to twice the amount of the cheque, or withboth,. Section 138 has now been amended and thepenalty of imprisonment for a term which may extend toone year has been substituted by two years as providedby the amending Act of 2002 and the fine which mayextend to twice the amount of the cheque. This hasbeen prescribed as the punishment for the offenceunder Section 138 of the Act..The object and theingredients under the provisions, in particular,Sections 138 and 139 of the Act cannot be ignored.Proper and smooth functioning of all businesstransactions, particularly, of cheques as instruments,primarily depends upon the integrity and honesty ofthe parties. In our country, in a large number ofcommercial transactions, it was noted that the chequeswere issued even merely as a device not only to stallbut even to defraud the creditors. The sanctity andcredibility of issuance of cheques in commercialtransactions was eroded to a large extent.Undoubtedly, dishonour of a cheque by the bank causesincalculable loss, injury and inconvenience to thepayee. Ultimately, the appeal was disposed of by the Honourable Apex Court byawarding Rs.80,000/- (twice the amount of the cheque) as compensation to https://hcservices.ecourts.gov.in/hcservices/ the claimant giving a months time for payment to the accused with defaultsentence. If we follow the same yardstick in the case on hand also, thenthe accused is liable to pay a sum of Rs.1,50,000/-(twice the amount ofthe cheque) to the complainant. But it is on record that the accused hasalready paid a sum of Rs.25,000/- as per order of this Court inCrl.M.P.No.12850 of 2004 in Crl.R.C.No.2103 of 2004. 13. Following the principle enunciated in the above said dictum,I amof the view that instead of giving any sentence, the accused can bedirected to pay twice the amount of the cheque in this case also. Thepoint is answered accordingly.14. In the result, the revision is disposed of as hereunder. Thefindings of the first appellate Court in C.A.No.99 of 2003 on the file ofthe Additional District and Sessions Judge,fast Track Court, No.2, Salemis set aside. While convicting the accused under Section 138 of the Act,six weeks time from this date is given to the petitioner/accused hereinto pay a sum of Rs.1,25,000/-(Rupees One Lakh twenty five thousand only)(twice the amount of the cheque, after giving credit to the payment ofRs.25,000/- already made by the accused as per the directions of thisCourt) towards compensation to the complainant/respondent,in default,thereof, the petitioner/accused shall suffer simple imprisonment for sixmonths.sgSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo, 1.The Additional District Sessions Judge, Fast Track Court,No.2, Salem.2. The Judicial Magistrate No.3, Salem.3.-do- the Chief Judicial Magistrate, Salem.4. The Superintendent,Central Prison, Salem.5. The Principal Sessions Judge, Salem.+1 cc to Mr.P.Sathish, Advocate Sr.No.36793.SMV(CO)dcp/22.6.07Crl.R.C.No.2103/ 2004