S. Suresh vs M.C. Subramanian

A. Selvam, J.—The concurrent judgments passed in Calendar Case No. 225 of 1998 by the Judicial Magistrate Court No. II,

Ramanathapuram and in Criminal Appeal No. 31 of 2002 by the Additional District and Sessions cum Fast Track Court, Ramanathapuram, are

now under challenge.

The respondent herein as complainant has lodged the complaint in question under Sections 138 read with 142 of the Negotiable Instruments

Act, 1881, on the file of the Judicial Magistrate Court No. II, Ramanathapuram, wherein the present revision petitioner has been shown as

accused.

The material averments made in the complaint can be stated like thus;

On 29.11.1992 the son of the complainant by name Sathasivam has married the sister of the accused by name Sudha. The complainant is doing

Government Contract works. On 13.10.1997 the accused has demanded Rs. 7,00,000/- from the complainant by way of debt. On the same day,

the complainant has given a cheque for a sum of Rs. 4,00,000/- to the accused. On 19.11.1997 the accused has received another cheque for a

sum of Rs. 3,00,000/- from the complainant. The complainant has asked the accused to discharge the amount, but the accused has given evasive

reply and ultimately, on 04.05.1988 the accused has given a cheque for a sum of Rs. 7,00,000/- in favour of the complainant and the same has

been presented in the concerned Bank and the concerned Bank has returned the same stating ""funds insufficient"". On 19.06.1988 the complainant

has given a statutory notice to the accused and even after receipt of the same, the accused has failed to discharge his liability nor given any reply

notice. Under the said circumstances, the accused is said to have committed offence u/s 138 of the Negotiable Instruments Act.

On the side of the complainant, Pws.1 to 3 have been examined and Exs.P1 to P13 have been marked. When the accused has been questioned

u/s 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against him, he denied his complicity

in the crimes. On the side of the accused, DWs.1 to 6 have been examined and Exs.D1 to D5 have been marked.

The trial Court, after analysing the evidence available on record, has found the accused guilty u/s 138 of the Negotiable Instruments Act and

sentenced him to undergo one year rigorous imprisonment and also imposed a fine of Rs. 5,000/- and further directed that the said amount should

be given to the complainant by way of compensation. Against the conviction and sentence passed by the trial Court, the accused as appellant has

preferred Criminal Appeal No. 31 of 2002 on the file of the first appellate Court.

The first appellate Court, after reappraising the evidence available on record, has dismissed Criminal Appeal No. 31 of 2002 and thereby

confirmed the conviction and sentence passed by the trial Court and further directed the appellant/accused to pay twice the cheque amount by way

of compensation to the respondent/complainant. Against the concurrent judgments passed by the Courts below, the present criminal revision case

has been filed.

The specific case of the respondent/complainant is that accused is the brother of the wife of his son and he approached the complainant for

getting Rs. 7,00,000/- by way of debt. On 13.10.1997, the complainant has given a cheque for a sum of Rs. 4,00,000/- in favour of the accused

and on 19.11.1997 the complainant has given another cheque for a sum of Rs. 3,00,000/- in favour of the accused and despite of repeated

demands, the accused has failed to discharge his liability and ultimately the accused has given the cheque in question on 04.05.1996 in favour of

the complainant and the same has been presented in the concerned Bank for collection and the concerned Bank has returned the same stating

funds insufficient"" and subsequently all legal formalities have been observed and since the accused has failed to discharge his liability even after

receipt of the statutory notice, he has committed offence u/s 138 of the Negotiable Instruments Act. As adverted to earlier, both the Courts below

have concurrently held that the accused has committed offence u/s 138 of the Negotiable Instruments Act.

The learned Counsel appearing for the revision petitioner/accused has vehemently contended that the accused has already discharged the

amount in question to the complainant and the Courts below without considering the alleged discharge made by the accused, have erroneously

found him guilty u/s 138 of the Negotiable Instruments Act and therefore, the concurrent judgments passed by the Courts below are liable to be set

aside.

Per contra, the learned Counsel appearing for the respondent/complainant has also befittingly contended that the defence of discharge has been

taken only at the time of questioning the accused u/s 313 of the Code of Criminal Procedure, and if really, the amount in question has already been

discharged, definitely, the accused would have given suitable reply to the statutory notice given by the complainant and both the Courts have

clearly analysed the above aspect and ultimately rejected the same. Therefore, the concurrent judgments passed by the Courts below are not liable

to be interfered with.

For the purpose of analysing the rival submissions made by either counsel, the Court has to look into the relevant documents filed on either

side.

On the side of the complainant, voluminous documents have been filed so as to prove that the complainant has advanced the said sum of Rs.

7,00,000/- to the accused and in order to discharge the same, the accused has given the cheque in question, which has been marked as Exs.P1

and further on the side of the accused Ex.D1, Income Tax Return of the complainant has been filed, wherein also it has been clearly mentioned that

the complainant has advanced the said sum of Rs. 7,00,000/- to the accused. Therefore, it is quite clear that the complainant has advanced Rs.

7,00,000/- to the accused.

The only defence taken on the side of the accused is that he has discharged the entire amount to the complainant. The cheque in question has

been presented in the concerned Bank and the concerned Bank has returned the same stating ""funds insufficient"" and subsequently on 19.06.1998

the complainant has sent a statutory notice to the accused and a copy of the same has been marked as Ex.P6 and the same has been received by

the accused and the postal acknowledgment has been marked as Ex.P8. Even after receipt of the statutory notice, the accused has not chosen to

give any reply notice. If really, the accused has discharged the entire amount as pleaded on his side, definitely, he would have given suitable reply

notice to the complainant, but he observed complete obmutescence. Therefore, it is quite clear that the plea of discharge of entire amount in

question raised on the side of the accused is nothing but false and the same has been introduced only for the purpose of rejecting the claim of the

complainant. Therefore, the argument advanced by the learned Counsel appearing for the revision petitioner/accused is of no use and whereas the

argument advanced by the learned Counsel appearing for the respondent/complainant is really having subsisting force.

The learned Counsel appearing for the revision petitioner/accused has also advanced his argument stating that the trial Court has found the

accused guilty u/s 138 of the Negotiable Instruments Act and sentenced him to undergo one year rigorous imprisonment and also imposed a fine of

Rs. 5,000/- and the same should be given as compensation to the complainant. Against the conviction and sentence passed by the trial Court, the

accused as appellant has preferred Criminal Appeal No. 31 of 2002 and the first appellate Court, has dismissed the same and thereby confirmed

the conviction and sentence passed by the trial Court and further directed the appellant/accused to pay twice the cheque amount by way of

compensation to the respondent/complainant and further both fine and compensation cannot be awarded and the first appellate Court has

committed a stupendous mistake and therefore, the judgment passed by the first appellate Court is liable to be modified.

The learned Counsel appearing for the respondent/complainant has also argued that only the fine amount imposed by the trial Court has been

enhanced by the first appellate Court and the same is directed to be given to the complainant by way of compensation and both the fine as well as

compensation have not been imposed by the first appellate Court and therefore, the argument advanced by the learned Counsel appearing for the

appellant/accused is liable to be rejected.

For better appreciation, reliance can be placed upon the decision reported in 2004 (13) SCC 795 (Sivasuriyan v. Thangavelu) wherein the

Honourable Apex Court has held that where fine already forms part of the sentence, the Court cannot direct payment of compensation in exercise

of power under Sub-section 3 of Section 357 of the Code of Criminal Procedure.

With the above legal backdrops, the Court has to analyse the judgment of the first appellate Court. The first appellate Court has confirmed

both the conviction and sentence passed against the accused. In other words, the first appellate Court has confirmed both the sentence of

imprisonment as well as fine imposed by the trial Court. After confirming both the sentence of imprisonment as well as fine imposed by the trial

Court, the first appellate Court has directed the accused to pay twice the cheque amounts by way of compensation to the complainant. Therefore,

it is quite clear that in the instant case, both the fine as well as compensation amount have been imposed against the appellant/accused.

In view of the discussion made earlier, it is very clear that the judgment of the first appellate Court is totally against the dictum given by the

Honourable Apex Court and the same is liable to be modified as stated infra.

The learned Counsel appearing for the revision petitioner/accused has also argued that during the pendency of the present criminal revision

case, the accused has given Rs. 2,50,000/- to the complainant and the complainant has refused to come for compromise and since the accused has

paid the said amount, he cannot be said to be guilty of non-payment of the amount mentioned in the complaint and therefore, the concurrent

judgments passed by the Courts below are liable to be set aside.

In support of his contention, he has drawn the attention of the Court to the decision reported in 1994 C L J 2768, Kerala High Court

(Pradeep Chandran v. Nimmi Velappan and Anr.) wherein it has been held as follows;

Under law when a person has tendered the amount payable by him he must be deemed to have discharged his obligation and the creditor is bound

to accept the tender. Thus where on dishonour of cheque issued by the accused she disclaimed the liability to pay the cheque but on receiving

notice tendered payment of the whole amount twice in front of the Court but the complainant refused to accept it both the times, the accused could

not be said to be guilty of non-payment of the amount.

In the instant case, the specific contention of the complainant is that the accused has received Rs. 7,00,000/- from him and in order to

discharge the same, he has given the cheque in question. Of-course it is true that during the pendency of the present criminal revision case, Rs.

2,50,000/- has been given to the complainant and he refused to come for compromise and ultimately he has returned the same to the accused.

Since the cheque amount is Rs. 7,00,000/- and since the accused paid only part of that amount to the complainant and the same has also been

returned to the accused, the Court cannot come to a conclusion that mere payment of Rs. 2,50,000/- by the accused to the complainant, would

absolve his liability. Therefore, the facts found in the present case are totally alien to the facts of the decision mentioned supra and under the said

circumstances, the above limb of argument advanced by the learned Counsel appearing for the revision petitioner/accused cannot be accepted.

It has already been pointed out that the trial Court has found the accused guilty u/s 138 of the Negotiable Instruments Act and sentenced him

to undergo one year rigorous imprisonment and also imposed a fine of Rs. 5,000/-. The first appellate Court has confirmed the conviction and

sentence and also the fine imposed by the trial Court and further directed the accused to give twice the cheque amount as compensation to the

complainant. But both fine as well as compensation cannot be imposed as per the dictum of the Honourable Supreme Court. The specific

contention of the complainant is that the accused has received Rs. 7,00,000/- and issued the cheque in question in favour of the complainant and

the same has been returned.

Considering the quantum of amount and also considering the offence alleged to have been committed by the accused, this Court is of the view

that the accused can be sentenced to undergo one year rigorous imprisonment and a fine of Rs. 7,00,000/- can be imposed against him and the

same can be given as compensation to the complainant. With the above modification, the present criminal appeal can be allowed in part.

In fine, this criminal revision case is allowed in part. The concurrent judgments passed by the Courts below are modified as follows; The

sentence of imprisonment imposed by the trial Court u/s 138 of the Negotiable Instruments Act, upheld by the first appellate Court is confirmed

and a fine of Rs. 7,00,000/- is imposed against the revision petitioner/accused and the same shall be given to the respondent/complainant as

compensation.