M/s.S.B.Suji Chits (Pvt) Ltd v. R.Rajalakshmi

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 18.04.2012CoramTHE HON'BLE MR.JUSTICE C.S.KARNANCrl.R.C.No.998 of 2003M/s.S.B.Suji Chits (Pvt) Ltd.,Rep. by its Manager,R.Jaya Kumar,S/o.Late Ramasamy,Having Office at No.87, First Street,Gopalapuram, Coimbatore District... Petitioner/Petitioner Vs.R.Rajalakshmi.. Respondent/RespondentPrayer :-Criminal Revision is filed under Section 397 r/w 401 ofCr.P.C., to set-aside the judgment passed in S.T.C.No.1761 of 1996by the Judicial Magistrate-III, Coimbatore dated 11.02.2003 andimpose a severe punishment, order compensation to the petitioner. For Petitioner : Mr.K.KalyanasundaramFor Respondent : No appearance - - - ORDERThe revision petitioner / complainant has preferred thisCriminal Revision in Crl.R.C.No.998 of 2003 against the judgmentmade in S.T.C.No.1761 of 1996, on the file of the JudicialMagistrate-III, Coimbatore.2. The complainant's case is as follows:-The complainant is carrying on business in the field ofchit and finance, in Coimbatore District. The accused became asubscriber in the complainant's company in the group number'S'/949/93. The above said group is for the value of Rs.50,000/-and the duration of the said group is 25 months and the amountpayable by the accused is Rs.2,000/- per month. The accused hadissued a cheque, dated 24.02.1996, drawn on M/s. Indian Bank, ADUCBranch, Coimbatore (Cheque No.810874), in favour of thecomplainant, for a sum of Rs.20,000/-, towards the amount forsubscription payable to the complainant. The complainant presentedthe above cheque for encashment on 29.02.2006 with their bankers,M/s.The Lakshmi Vilas Bank Ltd., Uppilipalayam Branch, Coimbatore, https://hcservices.ecourts.gov.in/hcservices/ but it was returned unpaid due to "insufficient funds" in theaccount of accused as on 29.02.1996. The complainant sent alawyer's notice to the accused on 11.03.1996, which was receivedby the accused on 16.03.1996, but the accused had neither repliedto the notice nor had paid the cheque amount. Hence, the complaintwas filed against the accused before the Judicial Magistrate-III,Coimbatore under Section 138 of Negotiable Instruments Act.3. On the complainant's side, four witnesses wereexamined, viz., P.W.1 to P.W.4 and nine documents were marked asExs.P1 to P9 viz., Ex.P1-cheque drawn on Indian Bank, dated24.02.1996, Ex.P2-return memo dated 28.02.1996, Ex.P3-debit advicedated 29.02.1996, Ex.P4-lawyers notice dated 11.03.1996, Ex.P5-acknowledgment card, Ex.P6-bank account statement of accused,Ex.P7-power agent letter given by firm empowering P.W.1 to adduceevidence on their behalf; Ex.P8-bank account statement ofcomplainant's firm, Ex.P9-chit transaction agreement marked by theaccused. On the side of the accused, the accused was examined asR.W.1 and two documents were marked, viz., Ex.R1-receipt forpayment of Rs.10,000/-, dated 22.09.2000, made by the accused tocomplainant, Ex.R2-receipt for payment of Rs.5,000/- dated21.10.2000, made by accused to complainant.4. P.W.1, Mandhirachalam, the Manager of the complainantfirm viz., M/s.S.B.Suji Chits (Pvt) Ltd., had adduced evidencewhich is corroborative with the statements made in the complaintand in support of his evidence had marked Exs.P1, P2, P3, P5, P7and P8. After P.W.1 had left the service of the complainant's firm,one Mr.Jayakumar (P.W.3) had joined as the Recovery Assistant inthe complainant's firm; he had also adduced evidence which iscorroborative of the statements made in the complaint. P.W.2,Ramachandran, the Bank Officer of Indian Bank had deposed in hisevidence that when the impugned cheque (Ex.P1) had been presentedin his bank for encashment on 28.02.1996, it had been returnedunpaid as the account balance in the account of the accused wasonly Rs.1062.98, and in support of his evidence had marked Ex.P6,the bank account statement of accused. 5. P.W.4, Dinakaran, the Manager of Lakshmi Vilas Bank,wherein the complainant had an account, had deposed in his evidenceabout return of cheque (Ex.P1) and had marked Ex.P8, the bankaccount statement of complainant.6. Further during cross-examination by the accused side,the chief agreement signed by the accused had been marked as Ex.P9by the side of the complainant.7. R.W.1, the accused had deposed in her evidence thatshe was a member in the 'S' group chit conducted by thecomplainant; that on bidding successfully in the said chit, andwhen she received the bid amount from the complainant, blank signedcheques and blank signed pronotes had been given by her to thecomplainant as security; that after the present case was initiated https://hcservices.ecourts.gov.in/hcservices/ against her, she had deposited Rs.10,000/- on 22.09.2000 andanother Rs.5,000/- on 21.10.2000 in the complainant's firm; thatthe receipts for the said amounts had been marked as Exhibits R1and R2; that she has been informed by the complainant that the casefiled against her would be withdrawn, only if she pays an amount ofRs.30,000/- to the complainant; that she has repaid all the duesand no debt or liability exists against her with the complainant'sfirm. 8. From a scrutiny of Ex.R2, it is seen that the chitgroup mentioned in the receipt is 'W'. It is also seen from Ex.P9,the chit agreement which has been signed by the accused that theaccused was a member of chit group 'W'. It has also been admittedby the accused that she is a member of the chit group 'S' also. Oncomparing the documentary evidence, Exs.R2 and P9, the evidence ofP.W.1 and P.W.3, it is seen that the accused was a member of both'S' and 'W' group. The learned judge opined that the payments madeby the accused as per Ex.R1 and R2 were only to service the debtincurred in 'W' group of chit. Hence, the learned judge held thatthe present complaint was for return of money advanced to theaccused in 'S' group of chit, i.e., Rs.50,000/-. The learned judgeheld that the cheque for Rs.20,000/- issued by the accused was torepay a part payment of loan advanced to her on the said chit. Thelearned Magistrate was of the opinion that if the accused had notbeen a member in the 'S' group of chits conducted by thecomplainant (S/949/53) and if she did not have to repay the chitdues of Rs.20,000/-, she could have raised an objection immediatelyafter receipt of Ex.P4 (lawyer's notice) and sent a reply notice.As such, the learned judge held that the contention of the accusedthat she had made full and final payment of dues i.e., a sum ofRs.15,000/- for service of loan availed by her in 'W' group ofchits in the year 2000, and that she does not owe the complainantany further sums of money was not acceptable and believable. 9. Considering the other oral and documentary evidence,the learned Magistrate held the accused guilty of offence underSection 138 of Negotiable Instruments Act and imposed a fine ofRs.1,000/- in default to undergo simple imprisonment for a periodof one month.10. Aggrieved by the said judgment and conviction passedby the trial Court, the revision petitioner / complainant haspreferred the present revision in Crl.R.C.No.998 of 2003 beforethis Court.11. The learned counsel for the revision petitioner hascontended that the Court below ought to have held that the chequeamount of Rs.20,000/- was not paid to the complainant and awardedmaximum punishment provided in the Act, and also awardedcompensation to the complainant of twice of the cheque amount. Itwas also stated that the Court below erred in giving a lenientpunishment to the accused only on the ground that she was a ladyand a professor in the College. https://hcservices.ecourts.gov.in/hcservices/

12. On verifying the facts and circumstances of the caseand submission made by the learned counsel for the revisionpetitioner and on scrutinizing the impugned judgment of the trialCourt passed in S.T.C.No.1761 of 1996, on the file of JudicialMagistrate-III, Coimbatore, this Court is of the view that the fineof Rs.1,000/- imposed and in default the accused was to undergo onemonth simple imprisonment ordered by the learned Magistrate is onthe lower side. The complainant has proved his case against theaccused. As such, the learned Magistrate has to impose adequatepunishment on the accused. Therefore, this Court is constrained tomodify the sentence and as such this Court imposes a sentence ofthree months simple imprisonment and also awards a compensation ofRs.20,000/- to the complainant payable by the accused, as it isfound to be fair and equitable.13. However, the instant case has been filed in the year1996. Hence, this Court directs the learned Magistrate-III,Coimbatore to issue bailable warrant to the accused forthwith andsecure her into judicial custody, to undergo simple imprisonmentfor a period of three months. If the accused remits thecompensation amount of a sum of Rs.20,000/- to the credit ofS.T.C.No.1761 of 1996, on the file of Judicial Magistrate-III,Coimbatore before being remanded into judicial custody, she wouldbe set at liberty and this Court order would not be operatedfurther against the accused. If the accused pays the compensationamount, then the complainant is at liberty to withdraw the same,after filing a Memo.14. The above direction has been ordered by invoking thediscretionary power vested with this Court.15. Resultantly, the above revision is disposed of withthe above observations. Consequently, the order passed inS.T.C.No.1761 of 1996 on the file of Judicial Magistrate-III,Coimbatore, dated 11.02.2003 is modified. Accordingly ordered.r n sSd/-Asst. Registrar(W)//True Copy//Sub Asst. RegistrarTo1.The Judicial Magistrate-III, Coimbatore.2.Do Through the Chief Judicial Magistrate, Coimbatore.3.The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. K. Kalyanasundaram, Advocate SR No.25859VD(CO)SR/20.6.2012.Crl.R.C.No.998 of 2003