IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.08.2007 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl. R.C. No.890 of 2005 V.P.Eswaramoorthy .. Petitioner/accused Vs Murugani .. Respondent /complainant This Revision is filed against the Judgment of the learned Additional District Judge( Fast Track Court No.1 ) Erode in C.A.No.52 of 2005 dated 23.6.2005 confirming the order passed in C.C.No.613 of 2002 dated 18.1.2005 by the learned Judicial Magistrate No.1,Erode. For petitioner : Mr.V.Chandrasekaran For respondent : Mr.N.Manoharan O R D E R
This revision has been preferred against the Judgment in C.A. No.52 of 2005 on the file of the Additional District Judge-cum-Fast Track Court NO.1,Erode which had arisen against the Judgment in C.C.No.613 of 2002 on the file of Judicial Magistrate No.1, Erode.
2) A private complaint was filed under Section 200 Cr.P.C. for an offence under Section 138 of Negotiable Instruments Act 1881 against the accused claiming that two cheques drawn by the accused dated 18.7.2002 for a sum of Rs.3,00,000/- and another cheque dated 25.7.2002 for a sum of Rs.2,38,692/-. When presented for collection on 20.9.2002 in the Indian Overseas Bank, Erode Branch, both cheques were returned by the bank stating that there is no sufficient fund in the account of the drawer of the cheque to honour the same. A statutory notice was issued by the complainant on 27.9.2002 calling upon the accused to pay the said cheque amount, amounting to a sum of Rs.5,38,692/- giving 15days time for payment. The said notice was returned with an endorsement”not claimed” on 19.10.2002. The accused had failed to make any payment subsequently. Hence the complaint.
3) After recording the sworn statement of the complainant, the learned Judicial Magistrate No.1,Erode taking the complaint on file as C.C.No.613 of 2002 and on appearance of the accused on summons, copies under Section 207 Cr.P.C were furnished to the accused and when the offence was explained to the accused and questioned the accused pleaded not guilty.
4) On the side of the complainant P.W 1 was examined. Exs P1 to P8 were exhibited.
5) P.W.1 is the complainant,who would depose what he had narrated in the complaint. Exs P1 and P2 are the impugned cheques dated 18.7.2002 and 25.7.2002 respectively . Ex P3 is the returned memo dated 21.9.2002 sent along with Exs P1 and P2 by the bank at the time of dishonouring the cheques. Ex P4 is the copy of the notice dated 27.9.2002 sent by the complainant to the accused as per Section 138(b) of the Negotiable Instruments Act. Ex P5 is the postal receipts dated 27.9.2002. Ex P6 is the returned postal cover with an endorsement “not claimed” by the accused. P.W.1 has also produced Ex P7 invoice bill and Ex P8 balance sheet for the year 2002-03.
6) When incriminating circumstances were put to the accused, the accused would totally deny his complicity with the crime. He has examined D.W.1 and D.W.2 and exhibited D1 to D6.
7)After going through the oral and documentary evidence, the learned trial Judge has held that the accused is guilty under Section 138 of the Negotiable Instruments Act 1881 and convicted and sentenced him to one year simple imprisonment and slapped a fine of Rs.5000/- with default sentence. Aggrieved by the findings of the learned trial Judge, the accused had preferred an appeal in C.A.No.52 of 2005 before the learned Additional District Judge-cum-Fast Track Court No.1, Erode. The learned first appellate Judge, after due deliberation to the submissions made by both counsels and after going through the judgment of the learned trial Judge and after scanning the evidence both oral and documentary has ultimately concurred with the findings of the learned trial Judge in respect of conviction and fine amount, but reduced the sentence to undergo nine months rigorouos imprisonment instead one year rigorous imprisonment, which necessitated the accused to prefer this revision.
8) Now the point for determination in this revision is whether the findings of the first appellate Judge in C.A.No.52/2005 is liable to be set aside for the reasons stated in the memorandum of revision?
9) Heard Mr.V.Chandrasekaran, learned Counsel for the revision petitioner and Mr.N.Manoharan, learned counsel appearing for the respondent.
10) The point:
The accused in this case has not sent any reply notice to the notice issued by the complainant under the original of Ex P4. He has not chosen to receive the said notice, is seen from the endorsement in the returned cover Ex P6 “not claimed”. Under Ex D3 statement of bank account of the accused upto 28th September,2002, a sum of Rs.4,84,517.50ps was in credit. Ex P1 is dated 18.7.2002 and Ex P2 is dated 25.7.2002. The accused had exhibited Ex D3 statement of account through D.W.2 to show that there is no sufficient credit in the account of the complainant to lend loan of Rs.3,00,000/- under Ex P1 and a sum of Rs.2,38,692/- under Ex P2 cheque, But it is seen from Ex D3 statement relating to the complainant, itself that as on 19.7.2002 a sum of Rs.3,77,667.50 was in credit in the account of the complainant. The accused has not taken any steps to file the statement of account relating to the complainant relating to the period prior to 7th July 2002 to show that at any point of time, the complainant was not having Rs.3,00,000/- to lend to the accused. It is seen from Ex D3 statement of account itself that the complainant had sufficient fund even on 20.7.2002 to lend the same on 25.7.2002. So a vain attempt has been made before the trial Court by the accused to show that the complainant had no sufficient fund to lend under Ex P1 and Ex P2 impugned cheques. Both the Courts below have come to a concurrent finding that the offence under Section 138 of the Negotiable Instruments Act 1881 has been proved beyond any doubt against the accused to warrant conviction and sentence under the abovesaid provision of law.
11) But the sentence awarded by the Courts below under Section 138 of the Negotiable Instruments Act 1881 cannot be sustainable in lieu of the dictum laid down in Goa Plast (P) Ltd.v.Chico Ursula D’Souza (2004) 2 Supreme Court Cases 235) wherein in a case under Section 138 of the Negotiable Instruments Act while convicting the accused under Section 138 of the Negotiable Instruments Act, the Honourable Apex Court has held that to meet the ends of justice, the accused shall be directed to pay double the amount of the cheque giving some reasonable time to repay the same with default sentence. The relevant observation , in my view is necessary to be extracted in this case which runs as follows:
“. . . . We have no doubt that the respondent has committed an offence punishable under the provisions of Section 138 of the Act and is liable to be punished. The transaction in question took place between the parties in the year 1993, therefore, Section 138 , as it stood at the relevant time, would be applicable to the present case. Section 138 provides imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. Section 138 has now been amended and the penalty of imprisonment for a term which may extend to one year has been substituted by two years as provided by the amending Act of 2002 and the fine which may extend to twice the amount of the cheque. This has been prescribed as the punishment for the offence under Section 138 of the Act. The object and the ingredients under the provisions, in particular Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament,in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil Court is a long-drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee”
After observing as above, the appeal was disposed of by the Honourable Apex Court giving a months time to the accused to pay a sum of Rs Rs.80,000/- being twice the amount of the cheque to the compensation to the appellant/complainant with default sentence of simple imprisonment for six months. In my view, the same yardstick can be applied in this case also for disposing of the revision. The point is answered accordingly.
12. In the result, the revision is disposed of with the following modification:
The conviction against the accused by the first appellate Court in C.A.No.52 of 2005 under Section138 of the Negotiable Instruments Act 1881, is confirmed but the sentence alone is modified by giving six months time from today to the accused to pay a sum of Rs.10,77,384/- (Rupees Ten lakhs seventy seven thousand three hundred and eighty four )only being the double the cheque amount(Ex P1 and Ex P2) in default to suffer one year simple imprisonment.
sg
To
1. The Additional District Court-cum-Fast Track Court No.1
Erode.
2. The Principal District and Sessions Judge
Erode.
3. The Judicial Magistrate No.1
Erode.
4. -do- through the Chief Judicial Magistrate
Erode.
5. The Superintendent
Central Prison
Coimbatore.