P. Suyambu Lingam vs V. Natarajan

C.S. Karnan, J.—The revision petitioner/appellant/accused has preferred the present revision in Crl. R.C. No. 351 of 2010 against the

judgment made in C.A. No. 157 of 2009, on the file of II Additional Judge, City Civil Court, Chennai, confirming the conviction and sentence

passed in C.C. No. 6586 of 2002, on the file of XXIII Metropolitan Magistrate, Saidapet, Chennai. The respondent/complainant''s case is as

follows:

The accused had borrowed a sum of Rs. 5,00,000/- from the complainant on 6.3.2000 and had executed a pronote agreeing to pay the said sum

with interest at the rate of 36% per annum. In order to discharge the said sum, the accused had issued a cheque bearing No. 309179, dated

5.8.2002, drawn on Bank of America, Chennai-82, for the said sum, to and in favour of the complainant. When the complainant presented the

said cheque for encashment with his bankers for collection, it was returned unpaid on 9.8.2002 with an endorsement of ""account closed"". The

complainant sent a legal notice to the accused on 14.8.2002 which was returned on 24.8.2002. As the accused failed to effect the cheque

payment, the complainant had filed a complaint against the accused for an offence u/s 138 of Negotiable Instruments Act, before the XXIII

Metropolitan Magistrate, Saidapet.

On being questioned, the accused pleaded not guilty and hence trial was conducted. On the complainant''s side, the complainant was examined

as P.W. 1 and 7 documents were marked as Exhibits P-1 to P-7 viz., Exhibit P-1-promissory note, Exhibit P-2-cheque, Exhibit P-3-return memo,

Exhibit P-4-debit advice, Exhibit P-5-copy of legal notice, Exhibit P-6-postal receipt and Exhibit P-7-returned cover. On the side of the accused,

the accused was examined as R.W. 1. and one document was marked as Exhibit R-1, viz., letter dated 19.8.1999.

P.W. 1, the complainant had adduced evidence which is corroborative of the statements made in the complaint and in support of his evidence,

he had marked the documents listed as Exhibits P-1 to P-7.

R.W. 1, the accused had adduced evidence that he is acquainted with the complainant for the past 17 years and that the complainant was a

finance company run in the name and style of ""Premier Investment Corporation"". R.W. 1 deposed that the complainant himself had approached the

accused and told him that he is doing business of arranging finance from benefit funds and banks, and assured the accused that he would arrange

finance through Vellarar Co-operative Bank Limited, and after accepting the said offer from the complainant, the accused was asked to execute a

promissory note for Rs. 2,00,000/- and memorandum of deposit of title deed in favour of partnership firm ""Premium Investment"" and was asked to

hand over five blank cheques, five printed blank stamped and signed pronotes, five blank white paper and was told that he would get a loan of Rs.

5,00,000/- from Vellarar Co-operative Bank Limited. R.W. 1 deposed that the complainant did not arrange finance as he promised and when he

demanded him to either arrange finance or to return all the above documents immediately to him, the complainant had given evasive replies. R.W. 1

deposed that in the meantime, he received a letter from Vellarar Co-operative Bank enquiring about loan finance and when he met the officer in the

bank, he was shown a letter given by ""premier investment"" wherein it was stated that the accused had received Rs. 2,00,000/- from the said

Premier Investment and paying interest regularly. R.W. 1 deposed that he had immediately informed the bank that he does not want any loan from

the bank.

It was argued on the side of the accused that the complainant has not produced any documents regarding the said transaction and that he had

not produced his income tax returns and not examined the two vital witnesses, who had signed as witnesses in the promissory note. It was

contended that there was a difference between the inks in the pronote and cheque and two different handwritings are seen in the documents

marked as Exhibit P-1 and Exhibit P-2 and that this is not denied by the complainant.

The learned Magistrate opined that if the complainant had refused to give the cheques issued allegedly as security, the accused could have taken

steps to get back the cheques and other documents which are said to have been given by him to the complainant, by way of sending a legal notice

to the complainant demanding return of cheques or the accused could have lodged a police complaint before the station concerned, but he did not

do so. The learned Magistrate observed that though the accused had stated in his evidence that he had lodged a police complaint before the

Commissioner of Police, he has not filed any copy of the said complaint or the receipt to that effect before the Court. From scrutiny of returned

cover marked as Exhibit P-7, it is seen that the cover was returned with an endorsement, ""not claimed"". As such, the learned Magistrate observed

that the accused had refused to receive notice. The learned Magistrate also observed that a petition already filed by the accused to send the

cheque for handwriting expert was also dismissed. Hence, the learned Magistrate, after considering the oral and documentary evidence, held the

accused guilty of offence u/s 138 of Negotiable Instruments Act and sentenced the accused to undergo simple imprisonment for one year and also

imposed a fine of Rs. 5,000/- on the accused.

Aggrieved by the conviction and sentence imposed by the trial Court, the accused has preferred an appeal in C.A. No. 157 of 2009 before the

II Additional Judge, City Civil Court, Chennai. The learned judge, after perusal of the oral and documentary evidence and on scrutiny of the trial

Court''s order, dismissed the appeal and confirmed the order of the trial Court.

Aggrieved by the dismissal of his appeal, the appellant/accused has preferred the present revision.

The learned counsel for the revision petitioner has contended in the grounds of revision that the Courts below have failed to see that in spite of

the admission by P.W. 1, that he is a partner in a finance company and maintaining accounts, he has failed to produce the books of accounts to

show that there was really a transaction. It was pointed out that the Courts below failed to note that the respondent herein/complainant had filed a

suit in O.S. No. 4216 of 203 before the IV Additional Judge, City Civil Court, Chennai claiming that the accused had taken a loan of Rs.

2,00,000/- on 15.6.1999 by creating equitable mortgage. If it was true, it was highly unbelievable that the complainant advanced a sum of Rs.

5,00,000/- to the accused in the year 2000. It was pointed out that the Courts below failed to see that it is highly unbelievable that the accused

gave a cheque in the year 2002 for the alleged loan taken in 2000, without any demand and that too without discharging the equitable mortgage for

which the suit has been already filed. It was pointed out that the Courts below failed to appreciate that no ordinary prudent man will advance such

huge amount, when already paid amount remains unpaid and that apart taking only principal sum without any interest after two years.

The learned counsel for the complainant submitted that the accused had borrowed a sum of Rs. 5,00,000/- from the complainant. In order to

discharge the said loan, the accused had issued the said cheque. The same was presented in the complainant''s account for encashment and it was

returned with an endorsement stating ""account closed"". Thereafter, the complainant had filed the said complaint u/s 138 of Negotiable Instruments

Act. The complainant had also filed promissory note, which had been executed by the accused in favour of the complainant. The learned counsel

further submitted that the complainant had established his case before the Courts below. As such, the complainant is entitled to receive

compensation from the accused.

On verifying the facts and circumstances of the case and arguments advanced by the learned counsel for the respondent, and on perusing the

impugned judgments of the Courts below, this Court does not find any discrepancy in the conclusions arrived at for convicting the accused.

However, the sentence of simple imprisonment for one year imposed on the accused is on the higher side. Therefore, this Court reduces the

sentence from one year simple imprisonment to two months simple imprisonment, as it is found to be appropriate in the instant case. However, the

complainant had proved his case against the accused. Therefore, he is entitled to receive compensation from the accused. As such, this Court

directs the accused to pay compensation of a sum of Rs. 1,00,000/- (Rupees One Lakh only) as it is found to be appropriate. The accused has to

either pay the said compensation amount or to undergo two months simple imprisonment. This Court directs the learned XXIII Metropolitan

Magistrate, Saidapet, Chennai, to issue bailable warrant and secure the accused into judicial custody forthwith, in order to undergo two months

simple imprisonment. If the accused remits the said compensation amount of a sum of Rs. 1,00,000/- (Rupees One Lakh only) into the credit of

C.C. No. 5686 of 2002, on the file of XXIII Metropolitan Magistrate, Saidapet, Chennai before being remanded into judicial custody, the

accused would be set at liberty and the sentence of simple imprisonment for two months imposed on the accused would not be operated upon any

further. If the accused deposits the said amount, it is open to the complainant to withdraw the same after filing a Memo before the trial Court. If the

accused pays the compensation amount, the fine amount of a sum of Rs. 5,000/- is to be refunded to him. This order has been passed by this

Court after invoking the discretionary power vested with it. Resultantly, the above revision is partly allowed with the above modifications.

Consequently, the conviction and judgment passed in C.A. No. 157 of 2009, on the file of the II Additional Judge, City Civil Court, Chennai,

dated 22.3.2010, confirming the judgment made in C.C. No. 5686 of 2002, on the file of the XXIII Metropolitan Magistrate, Saidapet, Chennai,

dated 19.8.2009 is modified. Accordingly ordered.