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Shankar v/s Anjanea Finance & Investments, Rep. by its Partner-Sudakar, Kancheepuram

    CRL. R.C. NO. 236 OF 2007

    Decided On, 27 March 2012

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.S. KARNAN

    For the Petitioner: A. Shivkumar, Advocate. For the Respondent: V. Manisekaran, Advocate.



Judgment Text

(Prayer: Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., against the order and judgment of the learned Principal Sessions Judge, Kancheepuram District at Chenglepattu in C.A.No.122 of 2004, dated 29.01.2007 against the judgment in C.C.No.373 of 1999, dated 13.10.2004 on the file of learned Judicial Magistrate-I, Kancheepuram, confirming the conviction and sentence against the petitioner to undergo two months simple imprisonment had to pay a compensation of Rs.23,000/- in default of which he should undergo one month simple imprisonment for the offence u/s 138 of the Negotiable Instruments Act and to call for the records in C.A.No.122 of 2004 on the file of the learned Principal Sessions Judge, Kancheepuram District, Chengalpattu and set-aside the same.)

ORDER

The gist of the case are as follows:-

1. The revision petitioner herein/accused had borrowed a sum of Rs.23,000/- from one Munusamy and gave a cheque for the said amount on 02.07.1998, drawn on South Indian Bank, in order to discharge the said loan amount. The said Munusamy made over the cheque to the respondent herein/complainant namely Sri Anchaneya Finance and investments on 07.12.1998, for the consideration of Rs.23,000/- who in turn presented the same for collection into their Bank, viz., Bank of India, on 18.12.1998. The said cheque was bounced for the reason "stop payment". Thereafter, the complainant had observed all legal formalities and filed the case in C.C.No.373 of 1999, on the file of Judicial Magistrate-I, Kancheepuram under sections 138 of Negotiable Instruments Act.

2. On the side of the complainant, three witnesses had been examined, viz., P.W.1-Sudhakar, P.W.2-Manager, Bank of India and P.W.3-Branch Manager, South Indian Bank and he had marked nine documents viz., Ex.P1-copy of the registration of the finance company, Ex.P2-dishonored cheque, Ex.P3-Bank return memo of South Indian Bank, Ex.P4-return memo of Bank of India, Ex.P5-legal notice, Ex.P6-acknowledgment card, Ex.P7-reply notice issued by the accused, Ex.P8-certificate of the finance company issued by the Bank and Ex.P9-Bank account particulars of accused. On the side of the respondent, no document was marked. Court witness, one Munusamy, was examined.

3. P.W.1 had adduced evidence that he is the partner of the complainant's finance company. He further stated that one Munusamy had received Rs.23,000/- from them and the said Munusamy had given the cheque issued by the accused to them as payment for the same. P.W.2, Branch Manager of Bank of India had adduced evidence stating that the complainant's finance company is an account holder in their bank. The said cheque was issued by one Shankar in the name of Munusamy and the same was made over to the finance company. The same was presented in his bank for collection at the South Indian Bank, on 18.12.1998. On that day, there was balance of a sum of Rs.2,90,965/- lying in the accused's account. The said Munusamy was examined and he had adduced evidence stating that he knows the accused and that he had issued the cheque in his favour for a sum of Rs.23,000/-. The same was made over to the complainant's finance company for discharging his loan. The said cheque was returned with the endorsement "stop payment".

4. After considering the oral and documentary evidence, the learned Magistrate had come to a conclusion that the complainant had observed all legal formalities and established his case beyond doubt. The learned Magistrate questioned the accused regarding the quantum of punishment. The accused replied that his family members depend upon him and pleaded for minimum punishment. Hence, the learned Magistrate imposed a sentence of simple imprisonment, on the accused, for a period of two months and awarded a compensation of a sum of Rs.23,000/- in default to pay the said compensation, the accused was to further undergo simple imprisonment for a period of one month.

5. Aggrieved by the conviction and sentence passed in C.C.No.373 of 1999, on the file of Judicial Magistrate-I, Kancheepuram, dated 13.10.2004, the accused had filed an appeal before the Principal Sessions Judge, Kancheepuram District at Chengalpattu in C.A.No.122 of 2004. The learned Judge, after scrutinizing the trial Court's judgment and on hearing the arguments of the learned counsels on both sides and on verifying the appeal grounds, dismissed the appeal and the conviction and sentence imposed by the trial Court in its judgment in C.C.No.373 of 1999, dated 13.10.2004 was confirmed. Against the dismissal of the above said appeal, the revision has been filed.

6. The learned counsel for the revision petitioner argued that the Subordinate Courts grossly erred in not observing that there was no endorsement or signature of Court witnesses Munusamy upon the cheque in question and as such there was no evidence available that the said cheque was made over to the finance company. Further, there is no evidence for the cheque having been discounted by the petitioner. As such the revision petitioner ought not to have been convicted. The learned counsel cited a judgment reported in 2001 Crl.L.J. 745, wherein, it has been held that the presumption created under Section 139 of the Negotiable Instruments Act may getdisplaced by the prosecution evidence on record itself or the accused may choose to lead independent evidence in rebuttal thereof. In the absence of any evidence for the discounting of the cheque and since Court witness has stated that he does not remember to have signed in the cheque and since P.W.1 admitted that Court witnesses did not sign in the cheque, the principle laid down in the said decision that material legal infirmities in complainant's story effectively displaces and successfully rebuts the presumption under Section 139.

7. The learned counsel for the respondent argued that originally the cheque was issued in the name of one Munusamy, who was examined as Court witness and he narrated the facts that he had made over the cheques in favour of the complainants finance company for consideration. The learned counsel further argued that Bank Rules duly permit for making over the cheque in favour of the third parties. Further, all the legal formalities have been observed and the case has been established against the accused after recording oral evidence of P.W.1, P.W.2 and P.W.3, besides documentary evidence. The same was confirmed by the appellate Court also. The learned counsel further submitted that before imposing punishment on the accused, he was questioned regarding the quantum of punishment. He had replied at that time to award minimum punishment. Therefore, it is seen that the accused had pleaded guilty.

8. On verifying the facts and circumstances of the case and after hearing the arguments of the learned counsels and on perusing the impugned judgments of the Courts below, this Court does not find any discrepancy in the said judgment passed in C.A.No.122 of 2004 on the file of Principal Sessions Judge, Kancheepuram, dated 29.01.2007. Therefore, the above revision is dismissed and the judgment passed by the appellate Court is confirmed. This Court considering the nature of the case, imposes a compensation, i.e., a sum of Rs.23,000/- to the accused. This Court further views that the case has been pending for a period of more than 12 years. Hence, the Court directs the learned Judicial Magistrat

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e-I, Kancheepuram to issue bailable warrant for arrest of the accused and secure him into judicial custody immediately. However, this Court gives an option to the accused that if he pays the compensation amount of a sum of Rs.23,000/- before arrest, the Court order would not be operated. On deposit of the compensation amount by the accused, the complainant is at liberty to withdraw the same, at once, after filing a Memo before the trial Court. Accordingly ordered. 9. In the result, the above Criminal Revision is dismissed with the above observation. Consequently, the judgment of the Principal Sessions Judge, Kancheepuram at Chengalpet, passed in C.A.No.122 of 2004, dated 29.01.2007, confirming the judgment made in C.C.No.373 of 1999, on the file of Judicial Magistrate-I, Kancheepuram, dated 13.10.2004 is modified.
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