BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18/12/2006 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Criminal Revision Case No.410 of 2005 A.Rajan ... Petitioner Vs V.Pavun ... Respondent Criminal Revision Case against the judgment of the Additional Sessions Judge-cum-Fast Track Court NO.III, Madurai in Criminal Appeal No.91 of 2004 confirming the judgment passed in Calendar Case No.369 of 2002 on the file of The District Munsif-cum-Judicial Magistrate, Bodinaickanur. !For petitioner ... Ms.S.Nagamuthu and Mr.R.Ganesan ^For respondent ... Mr.R.Gandhi :ORDER
The revision petitioner has challenged the judgment dated 1/6/2005
passed in Criminal Appeal No.91 of 2004 by The Additional Sessions Court-cum-
Fast Track Court No.III, Madurai, upholding the conviction and sentence passed
in Calendar Case No.369 of 2002 by The District Munsif-cum-Judicial Magistrate
Court, Bodinaickanur.
2. The respondent herein as complainant has filed a private
complaint under Section 200 of The Code of Criminal Procedure on the file of the
District Munsif-cum-Judicial Magistrate Court, Bodinaickanur, wherein the
present revision petitioner has been arrayed as accused. It is stated in the
complaint that on 10/9/2002, the accused has received a sum of Rs.1,50,000/-
from the complainant. On 10/10/2002, the accused has given a withdrawal slip
and directed the complainant to get money from his account. On the same day,
the complainant has put the withdrawal slip in the concerned Bank. The
concerned Bank has returned the same stating “insufficient funds in the account
of the accused.” On 16/10/2002, the complainant has given a legal notice to the
accused and the same has also been returned with an endorsement stating
“intimation given not claimed”. The accused has committed offences under
Sections 138 of The Negotiable Instruments Act and also under Section 420 of The
Indian Penal Code.
3. On the basis of the accusation made against the accused, the
District Munsif-cum-Judicial Magistrate Court, Bodinaickanur has questioned the
accused with regard to offence alleged to have been committed by him under
Section 138 of The Negotiable Instruments Act and also framed a charge under
Section 420 of The Indian Penal Code and the same has been read over and
explained to him. The accused had denied the charge framed under Section 420 of
The Indian Penal Code and claimed to be tried. On the side of the complainant,
P.Ws.1 to 3 have been examined and Exs.P.1 to P.4 have been marked.
4. When the accused had been questioned under Section 313 of the
Code of Criminal Procedure as respects the incriminating circumstances appearing
in evidence against him, he denied his complicity in the crimes. No oral and
documentary evidence had been let in on the side of the accused.
5. The trial Court after analysing the evidence available on record
has found the accused guilty under Section 420 of The Indian Penal Code and
sentenced him to undergo twenty four months rigorous imprisonment and also
imposed a fine of Rs.2,000/- with default clause and also awarded a compensation
of Rs.1,50,000/- to the complainant.
6. Against the conviction and sentence, the accused as appellant
has preferred Criminal Appeal
No.91 of 2004 on the file of the Additional Sessions Court-cum-Fast Track Court
No.III, Madurai.
7. The First Appellate Court, after reappraising the evidence, has
confirmed the conviction and sentence passed under Section 420 of The Indian
Penal code and set aside the order passed in respect of compensation. Against
the judgment passed in Criminal Appeal No.91 of 2004, the present Criminal
Revision Case has been filed.
8. The learned counsel appearing for the revision petitioner has
emphatically contended that in the instant case, no charge under Section 420 of
The Indian Penal Code has been framed and read over to the accused and without
framing proper charge under Section 420 of The Indian Penal Code, the trial
Court has voluntarily invited the conviction and sentence under the said Section
and the First Appellate Court has also erroneously confirmed the same and
therefore, the entire conviction and sentence passed against the accused under
Section 420 of The Indian Penal Code are liable to be set aside.
9. Per contra, the learned counsel appearing for the respondent has
also equally contended that the respondent has filed the present complaint only
under Section 200 of the Indian Penal code and necessary charge under Section
420 of The Indian Penal Code has also been framed and the same has been read
over and explained to the accused and the accused had denied the same and
claimed to be tried and no error has been committed either by the trial Court or
by the First Appellate Court and therefore, altogether, the present Criminal
Revision Case deserves to be dismissed.
10. The learned counsel appearing for the revision petitioner, in
support of his contention has drawn the attention of the Court to the decision
reported in 2004 – 2 L.W. (CrL.) – 556 (R.S.RAMAN Vs. TRUSHAR J.SETH), wherein
this Court has held as follows:-
“In this case, complaint had been filed by the respondent against
the accused for an offence under Section 138 of The Negotiable Instruments Act
and the Magistrate also took cognizance of the same for an offence under Section
138 of the Negotiable Instruments Act and had read over the substance of the
complaint to the accused whether he has committed an offence under Section 138
of the Negotiable Instruments Act for which he had denied. But surprisingly,
the Magistrate has convicted him under Section 417 of the Indian Penal Code.
Though factually, the courts did not accept these contentions, but they held
that in order to convict a person under Section 138 of the Negotiable
Instruments Act, the cheque must have been returned for want of sufficient funds
in the bank. But here in the present case, the cheque had been returned for the
reason that the account had already been closed not at the instance of the
accused but suo motu by the officials. However, ultimately, the Courts have
come to the conclusion that the offence under Section 138 has not been made out
since PW-2 bank official would state that the account of the petitioner was
closed on 11/3/1998.
The learned counsel for the petitioner would argue that without the
substance of the offence to be convicted not read over to the accused, he cannot
be convicted under another section. Consequently, no offence under Section 417
of the Indian Penal Code is made out. No doubt, the Magistrate has power to
alter the charge at any stage. But sufficient opportunities should have been
given to the accused to answer the particular charge. It may be said that this
being a summons case, there is no framing of charge. However, the provisions
under the Cr.P.C., specify that the substance of the charge should be read over
to the accused. In the present case when the Magistrate has thought it fit that
he should convict him under Section 417 of the Indian Penal Code, he ought to
have given sufficient notice to the accused to answer the said substance. But
he has not done so. Conviction has necessarily to be set aside on that
account.”
11. For better appreciation and also for easy reference, the facts
of the case found in the decision referred to earlier have to be narrated at
this juncture. In the case referred to supra, the complaint in question has
been filed under Section 138 of the Negotiable Instruments Act and the
concerned Magistrate has taken cognisance of the same for an offence under
Section 138 of The Negotiable Instruments Act. The Magistrate has convicted the
accused under Section 417 of The Indian Penal code. The concerned Magistrate
without framing necessary charge under Section 417 of The Indian Penal Code has
invited conviction and sentence under the said Section. Under the said
circumstances, this Court has held that the conviction and sentence passed under
Section 417 of the Indian Penal Code are liable to be set aside.
12. In the instant case, the complaint in question has been filed
under Section 200 of The Code of Criminal Procedure, wherein it has been clearly
stated that the accused has committed offence under Section 138 of the
Negotiable Instruments Act and also under Section 420 of The Indian Penal Code.
With regard to offence under Section 138 of the Negotiable Instruments Act, the
accused has been questioned and with regard to offence alleged to have been
committed under Section 420 of The Indian Penal Code, the trial Court has framed
necessary charge under the said Section on 17/2/2003 and the same has been read
over and explained to the accused. The accused has denied the same and claimed
to be tried. Therefore, it is needless to say that a sufficient charge under
Section 420 of The Indian Penal Code has been framed and the accused has also
been given sufficient opportunity to deny the charge and after assessing the
evidence available on record, the trial Court has come to the conclusion that
the accused has committed offence under Section 420 of The Indian Penal Code and
not under Section 138 of the Negotiable Instruments Act.
13. In view of the foregoing elucidation of factual premise, it is
very clear that the facts found in the decision referred to earlier are totally
alien to the facts of the present case. Therefore, the dictum given in the
decision is not at all applicable to the facts of the present case. The
revision petitioner has taken shelter only under the decision referred to
earlier. But in view of the discussion made earlier, it is very clear that the
entire argument advanced on the side of the revision petitioner by him is
totally erroneous and the same cannot be given weight to.
14. The trial court has made elaborate discussion with regard to
Section 420 of The Indian Penal Code and ultimately found that the accused has
committed the same. Even on factual aspects also, it is made clear to the Court
that the accused has given the withdrawal slip in question very schemingly and
also after knowing fully well that he is not having sufficient amounts in his
accounts to meet out the amount mentioned in the withdrawal slip. Therefore, it
is pellucid that only with a view to cheat the complainant, the accused has
given the concerned withdrawal slip. The act of the accused would clearly
attract the penal provision of Section 420 of The Indian Penal Code. The First
Appellate Court has also properly appreciated the evidence available on record.
Therefore, it is quite clear that the concurrent findings given by the Courts
below are not in any way liable to be interfered with.
15. In fine, this Criminal Revision Case deserves dismissal and
accordingly is dismissed. The conviction and sentence passed in Calendar Case
No. 369 of 2002 against the accused and upheld in Criminal Appeal No. 91 of 2004
are confirmed.
16. The trial court is directed to take suitable steps to
incarcerate the accused in prison so as to serve out the remaining period of
sentence.
To
1. The Additional Sessions Judge-cum-Fast Track Court NO.III, Madurai
2. The District Munsif-cum-Judicial Magistrate, Bodinaickanur.