THE HONOURABLE MR v. M/s Satramdas Maheshkumarrep. By its Partner Maheshkumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE :24.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.Nos.812 & 813 of 2004Crl.R.C.No.812/2004K.Subramaniam ..Petitioner/accusedvs.M/s Satramdas Maheshkumarrep. By its Partner Maheshkumar..Respondent/complainant Crl.R.C.No.813/2004K.S.Ramkumar .. Petitioner/accused vs.K.S.Maheswaran .. Respondent/complainantThese Revisions are filed against the Judgment dated22.03.2004 passed by the Additional District and SessionsJudge,Fast Track Court No.2,Salem in C.A.NO.20/2003 andC.A.No.11/2003 respectively confirming the Judgment dated 28.1.2003and 14.1.2003 respectively passed by the Judicial MagistrateNo.3,Salem in C.C.Nos.607/2000 and 171/2000 respectively.For Petitioner : Mr.K.Selvaraj (in both revisions)For Respondent : Mr.P.Sukumar(in Crl.R.C.No.812/2003) (in Crl.R.C.No.813/2003) : Mr.B.Kumarasamy C O M M O N O R D E RCrl.R.C.No.812 of 2004 has been preferred by the revisionpetitioner challenging the Judgment in C .A.No.20/2003 on the fileof Additional District and Sessions Judge/Fast Track Court No.2,Salem which had arisen out of a Judgment in C.C.No.607/2000 on thefile of Judicial Magistrate NO.3, Salem. https://hcservices.ecourts.gov.in/hcservices/ Crl.R.C.No.813 of 2004 has been preferred by the revisionpetitioner arises out of a Judgment in C.A.No.11/2003 on the fileof the Additional District and Sessions Judge/Fast TrackCourt,No.2, Salem which emantes from a Judgment in C.C.No.171/2000on the file of Judicial Magistrate, No.3, Salem.Crl.R.C.No.812/2004:2. The complainant has preferred a private complaint underSection 200 of Cr.P.C. against the accused for an 0ffencepunishable under Section 138 of Negotiable Instruments Act,1881(hereinafter referred to " the Act").3. The complaint was taken on file by the learned JudicialMagistrate, after taking cognizance of the same and after theaccused appeared on summons, copies under Section 207 of Cr.P.Cwere furnished and the offence was explained to the accused andquestioned the accused pleaded not guilty.4. On the side of the complainant, P.Ws 1 to 3 were examinedand Exs P1 to P11 were marked.5. P.W.1 is the power of Attorney holder of the complainantcompany who would depose that the accused had borrowed a sum ofRs.7,00,000/- from the complainant company on 8.7.1998 and executedthree promissory notes and out of the borrowed amount, 50% ie.,Rs.3,50,000/- was paid by the accused and the amount remains to bepaid by the accused comes to Rs.3,50,000/- and in order todischarge the said amount of Rs.3,50,000/-, the accused had drawn acheque Ex P5 for Rs.1,00,000/- in favour of the complainant on25.9.1999 and when the said cheque was presented in the Bank forcollection, the same was returned with an endorsement that there isno sufficient funds in the account of the accused . Exs P6 and P7are the debit advice and returned memo respectively dated 27.9.1999sent along with the impugned cheque Ex P5 by the bank. A noticeunder the original of Ex P8 dated 8.10.1999 was sent by thecomplainant to the accused, which was acknowledged by the accusedon 11.10.1999 under Ex P9. But the accused had failed to send anyreply notice nor took any steps to discharge the balance of theloan amount. Exs P1 to P3 are the copy of the promissory notes andEx P.4 is the copy of the power of attorney deed in favour ofP.W.1.5a. P.W.2 is the Manager of Andhra Bank , Salem Town in whichthe complainant is having his account. According to P.W.2, Ex P5impugned cheque was presented for collection on 25.9.1999 but thesame was returned with an endorsement that there is no sufficientfund in the account of the accused to honour the same. https://hcservices.ecourts.gov.in/hcservices/ 5c. P.W.3 is the Manager of Canara Bank , Salem wherein theaccused is having his account. According to him, the impugnedcheque Ex P5 was forwarded to his bank from Andhra Bank on25.9.1999 for collection, but the same was returned with anendorsement that there is no sufficient funds in the account of theaccused to honour the same. Ex P11 is the statement of account forthe accused's account. 6. When the incriminating circumstances were put to theaccused, he denied his complicity with the crime. Ex D1 the replynotice was marked on the side of the accused.7. After going through the evidence both oral and documentary,the learned trial Judge has come to a conclusion that only in orderto discharge the subsisting liability, Ex P5 impugned cheque wasdrawn by the accused in favour of the complainant and that theaccused is liable to be convicted under Section 138 of the Act andaccordingly convicted the accused and sentenced him to undergo sixmonths rigorous imprisonment and also directed the accused to pay acompensation of Rs.1,00,000/- with default sentence. Aggrieved bythe findings of the learned trial Judge, the accused has preferredan appeal before the Sessions Judge in C.A.No.20 of 2003 on thefile of Additional District and Sessions Judge, Fast Track Court,No.2, Salem. The learned first appellate Court , after giving duedeliberation to the submissions made by the counsel appearing forboth sides, and after scanning the evidence adduced before thetrial Court, has ultimately concurred with the findings of thetrial Judge, thereby confirming the Judgment of the trial Court,which necessitated the accused to approach this Court by way ofCrl.R.C.No.812/2004.Crl.R.C.No.813/2004:8.According to the complainant in C.C.No.171 of 2000, theaccused had borrowed a sum of Rs.50,000/- and to discharge the saidloan, had drawn Ex P1 cheque dated 1.11.1999 in favour of thecomplainant and when the said cheque was presented in the bank forcollection on 21.1.2000, the same was returned with an endorsementthat there is no sufficient funds in the account of the accused tohonour the same. A notice under the original of Ex P4 was sent bythe complainant on 22.1.2000, which was received by the accused on24.1.2000 under Ex P5 acknowledgment. 9. After taking cognizance of the complaint, the learnedJudicial Magistrate has issued summons to the accused and on hisappearance furnished copies under Section 207 of Cr.P.C. and whenthe offence was explained to the accused and questioned, theaccused pleaded not guilty. https://hcservices.ecourts.gov.in/hcservices/

10.On the side of the complainant, P.Ws 1 to 3 were examinedand Exs P1 to P8 were marked.10a. P.W.1 is the complainant, who would corroborate, what hehas sworn to before the trial Court in the complaint.10b. P.W.2 is the Manager of the Bank in which the complainantis having his account. P.W.3 is the manager of the Bank in whichthe accused is having his account. Both P.W2 and P.W.3 would admitthat the impugned cheque Ex P1 was returned on presentation on theground that there is no sufficient funds in the account of theaccused. Exs P2 and P3 are the returned memo and debit advicerespectively sent along with Ex P1 impugned cheque. Ex P6 is thecopy of the statement of account for the complainant. ExP7 is thepower of Attorney in favour of P.W.1. ExP8 is the statement ofaccount of the accused.11. When the incriminating circumstances were put to theaccused, he denied his complicity with the crime. 12. After going through the evidence both oral anddocumentary, the learned trial Judge has come to a conclusion thatthe complainant has proved the guilt of the accused beyond anyreasonable doubt and accordingly convicted the accused underSection 138 of the Act and sentenced him to under go four monthsrigorous imprisonment and awarded a sum of Rs.50,000/- ascompensation with default sentence. Aggrieved by the findings ofthe learned trial Judge, the accused has preferred an appeal inC.A.No.11 of 2003 on the file of Additional District and SessionsJudge, Fast Track Court, No.2, Salem. The learned first appellateCourt , after giving due deliberation to the submissions made bythe counsel appearing for both sides, and after scanning theevidence adduced before the trial Court, has ultimately concurredwith the findings of the trial Judge, thereby confirming theJudgment of the trial Court, which necessitated the accused toapproach this Court by way of Crl.R.C.No.813/2004. 13. Now the point for determination in these revisions iswhether the Judgments in C.A.No.20/2003 and C.A.No.11 of 2003respectively on the file of the learned Additional District andSessions Judge/Fast Track Court No.2,Salem are liable to be setaside for the reasons stated in the memorandum of the respectiverevisions?. https://hcservices.ecourts.gov.in/hcservices/

14. Heard Mr.K.Selvaraj, learned counsel for the revisionpetitioner in both the revisions and Mr.P.Sukumar, learned counselappearing for respondent in Crl.R.C.No.812 of 2004 andMr.B.Kumarasamy, learned counsel appearing for the respondent inCrl.R.C.No.813 of 2004 and considered their respective submissions.15.The Point:There is absolutely no defence taken neither before the trial Courtnor before the first appellate Court by the accused. Thecomplainant has proved his case by producing two impugned chequesEx P5 in C.C.No.607/2000 and Ex P1 in C.C.No.171/2000 before thetrial Court to show that the accused in both the cases have drawn acheque in favour of the complainant in both the cases respectivelyonly in order to discharge the subsisting liability. The evidenceof the bank officials viz., P.W.2 and P.W.3 in C.C.No.607/2000 andP.W.2 and P.W.3 in C.C.No.171/2000 will go to show that theimpugned cheques viz., Ex P5 in C.C.No.607/2000 and Ex P1 inC.C.No.171/2000 were dishonoured on the ground that there was nosufficient funds in the account of the accused in the cases abovewhich attracts an offence under Section 138 of the Act.16. Now coming to the question of sentence, both the Counselson record would contend that the ratio decidenti in Goa Plast (P)Ltd.,-v- Chicl Ursula D'Souza(2004)2 Supreme Court Cases 235) canbe followed in these revisions also. The exact observation in theabovesaid ratio runs as follows:...........We have no doubt that therespondent has committed an offence punishableunder the provisions of Section 138 of the Actand is liable to be punished. The transactionin question took place between the parties inthe year 1993, therefore, Section 138, as itstood at the relevant time, would be applicableto the present case. Section 138 providesimprisonment for a term which may extend to oneyear, or with fine which may extend to twicethe amount of the cheque, or with both,.Section 138 has now been amended and thepenalty of imprisonment for a term which mayextend to one year has been substituted by twoyears as provided by the amending Act of 2002and the fine which may extend to twice theamount of the cheque. This has been prescribedas the punishment for the offence under Section https://hcservices.ecourts.gov.in/hcservices/ 138 of the Act..The object and the ingredientsunder the provisions, in particular, Sections138 and 139 of the Act cannot be ignored.Proper and smooth functioning of all businesstransactions, particularly, of cheques asinstruments, primarily depends upon theintegrity and honesty of the parties. In ourcountry, in a large number of commercialtransactions, it was noted that the chequeswere issued even merely as a device not only tostall but even to defraud the creditors. Thesanctity and credibility of issuance ofcheques in commercial transactions was erodedto a large extent. Undoubtedly, dishonour of acheque by the bank causes incalculable loss,injury and inconvenience to the payee and theentire credibility of the business transactionswithin and outside the country suffers aserious set back. Parliament, in order torestore the credibility of cheques as atrustworthy substitute for cash payment enactedthe aforesaid provisions. The remedy availablein a Civil Court is a long-drawn matter and anunscrupulous drawer normally takes variouspleas to defect the genuine claim of thepayee."After observing as mentioned above, the Honourable Apex Court hasconvicted the accused under Section 138 of the Act and awarded acompensation of Rs.80,000/-(twice the amount of cheque) giving amonths time to the accused to pay the same with default sentence.Following the principle enunciated in the above said dictum,I am ofthe view that instead of giving any sentence, the accused can bedirected to pay twice the amount of the cheque in these revisionsalso. The point is answered accordingly.17. In fine, Crl.R.C.No.812 of 2004 is dismissed,but thesentence alone in C.A.No.20/2003 is modified as follows: A monthstime is granted to pay a sum of Rs.2,00,000/-(twice the amount ofcheque), after giving credit to the payment already made by theaccused, to the complainant,in default the revisionpetitioner/accused shall suffer simple imprisonment for six months.In fine, Crl.R.C.No.813 of 2004 is dismissed ,but the sentencealone in C.A.No.11/2003 is modified as follows: A months time isgranted to pay a sum of Rs.1,00,000/-(twice the amount of cheque),after giving credit to the payment already made by the accused, to https://hcservices.ecourts.gov.in/hcservices/ the complainant,in default the revision petitioner/accused shallsuffer simple imprisonment for four months.sgSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo, 1. The Additional District Sessions Judge, Fast Track Court,No.2,Salem.2. Do Through The Principle Sessions Judge,Salem3. The Judicial Magistrate No.3, Salem.4.-do- the Chief Judicial Magistrate, Salem.+ 2 cc to Mr. K. Selvaraj, Advocate, SR No.45580, 45581+ 1 cc to Mr. P. Sukumar, Advocate, SR No.45850Crl.R.C.Nos.812 & 813/2004NSM(CO)SR/1.8.2007