IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.04.2011
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
Crl.R.C.No.148 of 2009
A.Vijayakumar .. Petitioner
Vs.
1. M.Abdul Pari
2. Tamil Nadu Govt. rep. by
Public Prosecutor, Erode. .. Respondents
Criminal Revision Case against the judgment dated 25.11.2008 in Crl.A.No.194 of 2008 on the file of the Additional District Judge/Fast Track Court No.I, Erode, against the order dated 26.6.2008 in C.C.No.310 of 2006 on the file of the Judicial Magistrate No.II, Erode.
For petitioner : Mr.V.Paul Das
For respondents: Mr.R.Marudhachalamurthy for R-1
Mr.S.Rajendiran, Govt. Advocate (Crl. Side) for R-2
ORDER
Criminal Revision Case is filed against the judgment dated 25.11.2008 in Crl.A.No.194 of 2008 on the file of the Additional District Court/Fast Track Court No.I, Erode, confirming the conviction and sentence passed by order dated 26.6.2008 in C.C.No.310 of 2006 on the file of the Judicial Magistrate No.II, Erode, whereby the revision petitioner/accused was convicted for the offence under Section 138 read with 142 of the Negotiable Instruments Act and sentenced to undergo two years’ simple imprisonment.
2. The respondent as complainant preferred a complaint under Section 138 read with 142 of the Negotiable Instruments Act, stating that on 25.12.2005, the revision petitioner/accused borrowed a sum of Rs.65,000/- from the complainant and to discharge the same, he issued cheque Ex.P-1 dated 27.1.2006 drawn on Indian Bank, Coimbatore in favour of the complainant, which was presented for collection through ICICI Bank, Erode, on 29.4.2006 and the same returned as dishonoured endorsing “Account Closed”. The bank memo is marked as Ex.P-2. The debit advise is Ex.P-3. The statutory notice was issued under Ex.P-4 and the postal receipts are Exs.P-5 and P-6 and Exs.P-7 and P-8 are the returned postal covers, endorsing “refused” / “returned to sender as not claimed” and since the revision petitioner/accused has not repaid the amount, he filed a private complaint under Section 138 of the Negotiable Instruments Act.
3. The trial Court followed the procedures, and since the revision petitioner/accused pleaded not guilty, examined P.W.1 and marked the documents Exs.P-1 to P-8 and considering the oral and documentary evidence, found the revision petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him as stated above, against which, the revision petitioner/accused preferred appeal before the first appellate Court, which, after hearing the arguments on both sides, confirmed the conviction and sentence passed by the trial Court, against which, the present Crl.R.C. is preferred by the revision petitioner/accused.
4. Challenging the conviction and sentence passed by both the Courts below, the learned counsel appearing for the revision petitioner/accused submitted that no opportunity has been given to him to cross-examine P.W.1/complainant and since the cheque amount is Rs.65,000/-, the sentence of two years’ simple imprisonment is very harsh and hence, prayed for leniency in the sentence.
5. Learned counsel appearing for the respondent/complainant submitted that since the cheque in question has been dishonoured, a statutory notice was issued, which returned as “refused”; furthermore, after he appeared before Court, even though sufficient time was given, the revision petitioner/accused did not cross-examine the witness and the trial Court and the first appellate Court considered these aspects in proper perspective and came to the correct conclusion and while awarding the sentence of imprisonment, the amount involved is immaterial and as the ingredients of Section 138 of the Negotiable Instruments Act are made out, it is the discretion of the judicial officer to sentence the accused and hence, he prayed for confirming the conviction and sentence passed by both the Courts below.
6. While considering the rival submissions made by learned counsel on both sides, it is seen that the revision petitioner herein borrowed Rs.65,000/- and issued Ex.P-1 cheque, which was presented for encashment and that has been returned as “Account Closed” and that is evidenced by Ex.P-2 bank memo of the ICICI Bank and statutory notice had been issued under Ex.P-4 and the postal return cover in Ex.P-7 is endorsed as “refused” and Ex.P-8 postal return cover is endorsed as “not claimed and returned to sender”. Hence, the complaint has been preferred and the revision petitioner/accused appeared and received the papers and while questioning under Section 313 Cr.P.C., he has stated that “false case” had been foisted against him and even though he stated that he is having evidence/witness to prove his case, he has not examined any witness, nor produced any documentary evidence and did not cross-examine P.W.1/complainant and he never stated at the time of questioning under Section 313 Cr.P.C. that he has not issued the cheque to the respondent/complainant. In such circumstances, I am of the view that the revision petitioner/accused has accepted the issuance of cheque Ex.P-1 and so, the respondent/complainant/P.W.1 is entitled to invoke the presumption under Sections 118 and 139 of the Negotiable Instruments Act.
7. It is true that the presumption under Sections 118 and 139 of the Negotiable Instruments Act, is a rebuttable presumption and as already stated, the revision petitioner/accused neither issued any reply to the statutory notice, nor cross-examined the complainant/P.W.1 and did not let in oral evidence by way of examining defence witness, and did not produce any documents. Hence, I am of the view that the revision petitioner/accused has miserably failed to rebut the presumption under Sections 118 and 139 of the Negotiable Instruments Act, and so, it is to be presumed that Ex.P-1 cheque was issued for discharging the legal and enforceable debt. Since Ex.P-1 cheque was issued to discharge the legal and enforceable debt, which is a legal liability, which was presented for encashment and it returned as “Account Closed”, and so, the statutory notice has been issued under Ex.P-4, and the revision petitioner/accused refused to receive the notice under Exs.P-7 and P-8, which clearly proved the ingredients of Section 138 of the Negotiable Instruments Act and hence, the revision petitioner/accused is guilty of the offence under Section 138 of the Negotiable Instruments Act. Both the Courts below are correct in holding that the revision petitioner/accused is guilty of the offence under Section 138 of the Negotiable Instruments Act.
8. Now, it is appropriate to consider the argument advanced by learned counsel for the petitioner/accused has received only Rs.65,000/- and the cheque amount is only Rs.65,000/-, the sentence awarded by both the Courts below, i.e. two years’ simple imprisonment, is very high and harsh and he prayed for leniency in the sentence of imprisonment.
9. It is true that when once the revision petitioner/accused was found guilty of the offence under Section 138 of the Negotiable Instruments Act, awarding of sentence of imprisonment is the discretion of the judicial officer. In the present case, I am of the view it is justiciable to reduce the sentence of imprisonment from two years to one year simple imprisonment.
10. In the result:
(a) The Crl.R.C. is partly allowed.
(b) The conviction imposed on the revision petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act, by the Courts below, is confirmed.
(c) The sentence of imprisonment awarded by both the Courts below, is reduced from two years to one year simple imprisonment.
(d) The bail bond, if any executed by the revision petitioner/accused, shall stand cancelled.
(e) Since the revision petitioner is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.
cs
To
1. The Additional District Judge/Fast Track Court No.1, Erode.
2. Judicial Magistrate No.2, Erode.
3. The Record Keeper, Criminal Section, High Court,
Madras