Animadverting upon the judgment dated 22.10.2007 passed by the Additional District Judge, Fast Track Court-I, Erode, in C.A.No.47 of 2007 confirming the judgment dated 18.1.2007 passed by the Judicial Magistrate, No.III, Erode, in C.C.No.140 of 2004, this criminal revision case is focussed.
2. A 'resume' of facts absolutely necessary and germane for the disposal of this criminal revision case would run thus:
(a) The respondent herein preferred a complaint under Section 138 of the Negotiable Instruments Act as against the revision petitioners herein. Inasmuch as the revision petitioners pleaded not guilty, the trial was conducted.
(b) During trial, the proprietor of the respondent company was examined as P.W.1 and Exs.P1 to P11 were marked. On the accuseds' side R.W.1 was examined and Exs.R1 to R5 were marked.
(c) Ultimately, the trial Court recorded the convictions and imposed the sentences as under:
Case No. Offence Accused Punishment C.C.No.140 of 2003 Sec.138 r/w.142 of N.I.Act A1 Fine of Rs.2,500/-,in default, two months rigorous imprisonment as against A2 Sec.138 r/w.142 of N.I.Act A2 and A3 One year rigorous imprisonment and fine of Rs.2000/-, in default, two months rigorous imprisonment
(d) Being dissatisfied and disconcerted with the judgment of the lower Court, the appeal in C.A.No.47 of 2007 was filed before the Additional District Judge, Fast Track Court-I, Erode, for nothing but to be dismissed by the appellate Court confirming the judgment of the lower Court in all aspects.
3. Challenging and impugning the judgments of both the Courts below, this revision has been filed on various grounds, the pith and marrow of them would run thus:
The impugned cheque was not issued in relation to a legally enforceable debt. The said cheque was issued only as a security measure for the prompt payment of the dues relating to the goods supplied by the respondent company during the year 2001. The cheque was not a post dated cheque, but it was only a blank cheque handed over by the revision petitioners to the respondent company only as a security. All these facts were not taken into consideration by both the Courts below. The evidence of R.W.1-the Bank Manager would highlight that the impugned cheque was relating to the year 2001 and it was deposited with the bank for collection only on 18.8.2003. Ex.P4-notice contemplates higher amount than the cheque amount. Both the Courts below failed to take into consideration that Sureshkumar was not a properly constituted power of attorney to represent the respondent company. Accordingly, the revision petitioners prayed for setting aside the judgments of both the Courts below.
4. Heard both sides.
5. The learned counsel for the respondent would put forth and set forth his argument to the effect that absolutely there is no shard or shred, miniscule or pint-sized, molecular or scintilla of defect in the judgments of both the Courts below, as they considered the factual evidence and arrived at the conclusion, warranting no interference by this Court. The learned counsel also would point out that it is a settled proposition of law that the revisional Court cannot re-evaluate the evidence and arrive at a different conclusion and in the grounds of revision what are all the revision petitioners stated are not worthy of being considered, as they militate as against the well settled propositions of law.
6. The point for consideration is as to whether there is any perversity or non-application of law in analysing the evidence and rendering judgments by both the Courts below.
7. The contention on the side of the revision petitioners that Sureshkumar was not competent to represent the respondent company is turned out to be neither here nor there, as Ex.P8-the Power of Attorney executed by the respondent company in favour of Sureshkumar would clearly exemplify that Sureshkumar was authorised to represent the respondent company. It is a trite proposition of law that the Power of Attorney can very well represent the complainant and proceed with the matter. As such, I could see no substance in the contention of the revision petitioners.
8. The contention that Ex.P4-Notice refers to higher amount than the cheque amount is once again turned out to be wrong, as correctly pointed out by the learned counsel for the respondent. The cheque concerned is referred to in Ex.P4 by its number and it refers a sum of Rs.7,00,000/-. As such, the said ground also turned out to be baseless.
9. The contention of the revision petitioners that a blank cheque was issued to the respondent so as to secure prompt repayment of the supplies that would be made by the respondent in favour of the revision petitioners is once again turned out to be untenable and unacceptable plea for the reason that even for securing prompt repayment of the dues concerning the goods supplied, if any cheque emerges, the same is valid.
10. However, the learned counsel for the respondent, by citing Ex.P.11-the accounts, would submit that the said exhibit would clearly and categorically establish that the cheque emerged only in respect of the dues payable in relation to the goods supplied by the respondent in favour of the petitioners. As such, the Magistrate correctly adverting to all these factual evidence arrived at the conclusion, warranting no interference by this Court.
11. Over and above that, the presumption as contemplated under
Section 139 of N.I.Act has been ushered in by the complainant, on his adducing evidence both oral and documentary. Whereas, the burden which got fobbed off on the revision petitioners' side was not discharged. However, the learned counsel for the revision petitioners would place reliance on the deposition of R.W.1 to the effect the cheque was relating to the year 2001, whereas, it was deposited only on 18.8.2003 and according to the revision petitioners, it is not even a post dated cheque. The preponderance of probabilities on the defence side is not helping them as Ex.P11-the accounts would show that as on 18.8.2003 there were dues payable by the revision petitioners in favour of the respondent for the goods supplied, and in such a case it cannot be taken that the burden got fobbed off from the revision petitioners/accused's side to the complainant's side.
12. Hence, in these circumstances, I am of the considered opinion that au fait with law and au courant with facts both the Courts below recorded the convictions.
13. Regarding sentence is concerned, the trial Court imposed substantive sentence of one year, which according to the learned counsel for the revision petitioners, is on the higher side. However, the learned counsel for the respondent/complainant would submit that since the amount involved is Rs.7,00,000/- one year imprisonment may not be taken as a severe or heavier punishment.
14. I am of the view that imposing a sentence of six months simple imprisonment instead of one year rigorous imprisonment, leaving the fine amount in tact, would meet the ends of justice. Accordingly, the substantive sentence of one year rigorous imprisonment is reduced to six months simple imprisonment. Regarding the fine imposed by the lower Court is concerned, it is left in tact.
15. In the result, the criminal revision case is partly allowed. The lower Court is directed to issue warrant to the revision petitioners 2 and 3 on receipt of a copy of this order, so as to secure their presence and commit them to jail for making them to undergo the sentence imposed in this revision, if they have not already undergone.