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M. Murugan, Managing Director, S & A Shipping House India Pvt Ltd., Tirupur v/s M/S. Sreedhar Clearing Service P.Ltd., Rep by Managing Director, Sridhar Reddy, Chennai

    Crl. R.C. No. 294 of 2017 & Crl.M.P. Nos. 2895, 2896 & 2897 of 2017

    Decided On, 08 September 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE SUNDER MOHAN

    For the Petitioner: A. Balasingh Ramanujam, Advocate. For the Respondent: V.S. Dixit, Advocate.



Judgment Text

(Prayer: Criminal Revision Petition filed under Section 397 r/w 401 Criminal Procedure Code, to set aside the order of conviction dated 25.11.2011 passed in C.A.No.167 of 2015 by the VI Additional Sessions Judge, City Civil Court at Chennai in dismissing the Appeal by confirming order of conviction dated 31.07.2015 in C.C.No.1869 of 2019 passed by learned Metropolitan Magistrate, Fast Track Court – 4, George Town, Chennai.)

1. This Revision arises against the Judgement of the learned VI Additional Sessions Judge, City Civil Court at Chennai

2. The petitioner faced prosecution for the offence under Section 138 of the Negotiable Instruments Act in C.C.No.1869 of 2010 on the file of the learned Metropolitan Magistrate, Fast Track Court No.4, George Town, Chennai – 600 001. The prosecution case is that the petitioner had borrowed a sum of Rs.1,46,646/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Six only) from the Respondent to meet his urgent business needs and agreed to repay the said amount. Towards discharge of the said debt, the petitioner issued two post dated cheques drawn on Lakshmi Villas Bank Ltd., Tirupur for a sum of Rs.1,46,646/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Six only). The complainant presented the cheques for collection and upon the same having returned for the reason “Funds Insufficient”, issued statutory notice and filed a complaint under Section 138 of the Negotiable Instruments Act.

3. Before the Trial Court, the Respondent examined himself and marked eleven Exhibits. The petitioner examined himself and marked two Exhibits on his side.

4. The Trial Court rendered a finding of conviction and sentenced the petitioner in Section 138 of N.I.Act to undergo one year S.I and to pay a compensation of Rs.1,46,646/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Six only) to the complainant. Against the same, the petitioner moved an Appeal in C.A.No.167/2015, which came to be dismissed by the learned VI Additional Session, City Civil Court, Chennai.

5. Heard, Mr.A.Balasingh Ramanujam, learned counsel for the petitioner and Mr.V.S.Dixit, learned counsel for the Respondent.

6. On perusal of the Judgement of the Courts below, we find that the respondent had established the foundational facts required for drawing the presumption under section 139 of the NI Act. The Petitioner has not dislodged the said presumption either by cross examination or by adducing evidence on his side. The defence of the petitioner that the cheque was not issued in discharge of debt or liability to the respondent has not been established by the petitioner. Therefore, this Court finds no reason to interfere with the findings of the Courts below.

7. The learned counsel for the petitioner submitted that the entire cheque amount of Rs.1,46,646/- (Rupees One Lakh Forty Six Thousand Six Hundred and Forty Six only) was paid as early as on 30.10.2018 to the Respondent. The learned counsel for the Respondent fairly admits that the entire cheque amount was received by the Respondent during the pendency of the proceedings. However, he would submit that the Respondent has not agreed for compounding the offence.

8. The learned counsel for the petitioner submitted that the petitioner was unable to make payment earlier in view of his poor financial condition and prayed for modification of sentence. In view of the above factual position, this Court is of the view that the sentence imposed on the petitioner can be modified, keeping in mind that the proceedings under Section 138 of NI Act is primarily compensatory in nature than being punitive as held by the Apex Court in several decisions including in K.A.Abbas H.S.A vs. Sabu Josephand another reported in (2010) 6 SCC 230 and in Meters and Instruments Private Limited and Another vs. Kanchan Mehta reported in (2018) 1 SCC 560. Further the Hon'ble Apex Court in Kumaran vs. State of Kerala and another reported in (2017) 7 SCC 471 considered the question as to whether the compensation can be recovered in the manner provided under Section 421 of Cr.P.C, even if the accused has undergone the default sentence for non payment of compensation. The Honourable Apex Court after considering all the relevant provisions and its earlier judgements held as follows:-

“...

27...Despite this Section 357(3), Section 431, Section 70 IPC and Section 421 (1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided under Section 421 (1). This would, however, be without the necessity for recording any special reasons. This is because Section 421 (1) proviso contains the disjunctive “or” following the recommendation of the Law Commission, that the proviso to old Section 386 (1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso of Section 421 (1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine under Section 35 (1) and, by applying the fiction contained in Section 431, to compensation payable under Section 357 (3).

...”

9. Accordingly, this Court confirms the finding of guilt and the Judgement of conviction passed by the C

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ourts below. However, in view of the above stated factual position, this Court modifies the sentence imposed on the Petitioner. The sentence of one year imposed on the Petitioner is set aside. This Court imposes a fine of Rs.21,000/- (Rupees Twenty One Thousand only) on the Petitioner and in default to suffer one month S.I. A sum of Rs.20,000/- (Rupees Twenty Thousand only) out of the fine amount paid by the Petitioner shall be paid to the Respondent/Complainant. 10. With the above modifications, the Criminal Revision is dismissed. Consequently, the connected miscellaneous petitions are closed.
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