BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11/06/2007 CORAM THE HONOURABLE MR. JUSTICE P. MURGESEN Criminal Revision Case(MD) No.290 of 2004 R. Ganesharaja .. Petitioner Vs R.Chandrasekaran .. Respondent Criminal Revision petition filed under section 391 r/w 401 of Cr.P.C., against the Judgment dated 13.08.2004 made in C.C.No.180 of 2003 on the file of the Judicial Magistrate No.1, Tirunelveli. !For Petitioners ... Mr.M.Jayapaul ^For Respondent ... Ms.Renugadevi :ORDER
This Revision is directed against the Judgment passed by the learned
Judicial Magistrate No.1, Tirunelveli made in C.C.No.180 of 2003 dated
13.08.2004.
2.The Complainant’s case is briefly as follows:-
The accused had sold the house and site at No.K.P.11/348, Ravi Nagar,
Trivandrum-5 belong to the complainant’s wife in a capacity of the Power of
Attorney of the complainant’s wife. But the accused did not pay the sale amount
to the complainant’s wife as agreed by him. The accused had to pay a sum of
Rs.3,70,000/- towards the sale price of the above said house. After repeated
demands made by the complainant, the accused issued three cheques to settle the
sum of Rs.3,70,000/- in the name of the complainant on 15.04.2003 at
Palayamkottai drawn on Indian Bank, Palayamkottai.
(ii) One cheque is for Rs.1,50,000/- bearing number 501722 dated
15.04.2003, another cheque is for Rs.1,50,000/- bearing No.501724 dated
15.04.2003 and another cheque is for Rs.70,000/- bearing No.501723 dated
15.04.2003.
(iii) The cheques were presented to the Bank of India, Palayamkottai for
collection. But, the cheques were dishonoured and the same were returned to the
complainant with an intimation “Funds Insufficient”. So, the complainant sent a
registered notice on 25.04.2003 calling upon the accused to pay the amount due
on the dishonoured cheques within 15 days from the receipt of the notice. But
the accused evaded to receive the notice. Hence, the complainant sent another
registered notice on 11.05.2003 to the accused by courier. But the accused did
not claim the registered post. Hence the complaint was lodged against the
accused for the offence committed under Section 138 Negotiable Instrument Act.
3. Before, the Trial Court, P.Ws.1 to 3 were examined and Exs.P.1 to 15
were marked on the side of the prosecution. D.Ws.1 to 3 were examined and
Ex.D.1 was alone marked on the side of the respondent.
4. On consideration of evidence on record, the learned Judicial Magistrate
No.1, Tirunelveli found the accused guilty under Section 138 Negotiable
Instrument Act and convicted and sentenced him to undergo one year Rigorous
imprisonment and to pay a fine of Rs.5,000/- in deafault to undergo three months
simple imprisonment.
5. Aggrieved over the Judgment of the learned Judicial Magistrate No.1,
Tirunelveli, this Revision has been filed by the Revision Petitioner.
6. Point for Determination:
Whether the Criminal Revision is maintainable?
POINT:
(i) The revision petition has been filed only on the ground that the
learned Judicial Magistrate has not awarded compensation under Section 357(3)
Cr.P.C which is contrary to law.
(ii) Learned counsel for the respondent relied on the decision reported in
Sivasuriyan Vs.Thangavelu (2002(3) CTC 703) and argued that this revision is not
maintainable, because the fine amount has been imposed on accused as part of
sentence. Hence, the complainant is not entitled to compensation. According to
her, the revision is to be dismissed.
(iii) Learned counsel for the petitioner relied on the decision reported
in Y. Sreelatha @ Roja Vs. Mukhanchand Bothra (2002(1) CTC 530) and argued that
the fine amount can be enhanced being the twice of the cheque amount. In that
case, considering the case under Section 138 Negotiable Instrument Act, the
accused was sentenced to undergo imprisonment till raising of Court and to pay a
fine of Rs.5,000/- and sentence was enhanced by directing the accused to pay
fine equivalent to twice amount of cheques. Relying on the above decision, the
counsel also argued that the cheque amount can be awarded as compensation to the
complainant.
(iv) Admittedly, an appeal is pending before the District Court. If the
final verdict given in this revision, it will affect the result of appeal. The
learned counsel for the appellant also relied on the judgment of this Court in
Crl.R.C.No.1902 of 2003 dated 21.09.2006 and argued in such similar
circumstances, the revision can be transferred to the lower Appellate Court and
accordingly the revision was transferred to the Fast Track Court II, Tuticorin
where the appeal is pending.
(iv) In the light of the above decision, I think it is just and proper to
transfer this revision to the learned II Additional District Judge, Tirunelveli,
where C.A.No.252 of 2004 is pending for hearing, along with the same and render
a common judgment.
6. In the result, the Criminal Revision Case No.290 of 2004 pending on the
file of this Court is transferred to the II Additional District Court,
Tirunelveli for disposal according to law. The II Additional District Judge
will dispose the case in accordance with law without being influenced by any of
the observations made by this Court. The Criminal Revision case is ordered
accordingly.
To
1.The II Additional District Judge,
Tirunelveli.
2.The Judicial Magistrate No.1,
Tirunelveli.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.