This Criminal Revision Petition has been preferred against the against the Judgment, dated 29.05.2007 made in C.A.No.118 of 2006 on the file of the Additional Sessions Judge-cum-Fast Track Court No.I, Erode, confirming the Judgment, dated 29.03.2006 made in C.C.No.700 of 2004 on the file of the Judicial Magistrate No.III, Erode.
2. The petitioners herein were accused before the trial court. Based on the complaint given by the respondent under
Section 138 r/w 142 of the Negotiable Instruments Act, the case was taken on file. After the trial, the learned Judicial Magistrate No.III, Erode, convicted the accused, under
Section 138 r/w 142 of Negotiable Instruments Act, whereby imposed a fine of Rs.5,000/- to the first petitioner and in default of payment of fine amount, one month simple imprisonment to A2 and the second petitioner / A2 was further sentenced to undergo one year simple imprisonment and to pay a fine of Rs.4,000/- with default sentence. Aggrieved by which, the petitioners herein preferred appeal in C.A.No.118 of 2006. The learned Additional Sessions Judge, Erode, confirmed the conviction and sentence and dismissed the appeal. Aggrieved by which, the petitioners have preferred this criminal revision.
3. Though the respondent / complainant was present, continuously there was no representation for the petitioners. Since the revision petitioners were convicted accused, this Court find it just and reasonable to appoint Mr.C.Chokkalingam, counsel from the Legal Aid Panel to defend the case of the petitioners / accused, accordingly, he appeared and argued for the petitioners.
4. Learned counsel appearing for the petitioners submitted that the respondent / complainant has not established that the cheque was issued for a legally enforceable debt and that the same was issued only for security purpose, which was not considered by the courts below.
5. The respondent / complainant, party-in-person submitted that there is a concurrent finding by the trial court and the appellate court, which is based on the evidence available on record. The respondent drew the attention of this Court to the oral and documentary evidence. It is seen that the respondent / complainant herself was examined as P.W.1, apart from examining P.W.2. The dishonoured cheque, dated 11.06.2001 issued by the second petitioner, as partner of the first petitioner firm was marked as Ex.P.1. In the complaint as well as in the oral evidence, the respondent herein has stated that on 11.05.2001, an amount of Rs.2,59,873/- was due and payable by the petitioners to the respondent for the amount received, for which Ex.P.1, cheque was issued by the petitioners / accused. When the same was sent for collection to the Indian Overseas Bank, Peelamedu Branch through the respondent's bank, Bank of India, Coimbatore branch, the same was dishonoured due to insufficient funds in the account. Subsequently, after issuing legal notice, the respondent filed a complaint under Section 138 r/w 142 of the Negotiable Instruments Act. The memo of the bank sent along with the dishonoured cheque was marked as Ex.P.2. The copy of the legal notice, acknowledgement and other documents were marked as Exs.P.3 to P.8 before the trial court.
6. Considering the evidence available on record and the arguments advanced by both sides, the trial court found that the petitioners / accused were guilty under Section 138 r/w 142 of the Negotiable Instruments Act. In the appeal, the learned Additional Sessions Judge, by the impugned Judgment, dated 29.05.2007 has confirmed the conviction and sentence imposed by the trial court. It has been established that the cheque, dated 11.06.2001 was issued by the petitioners herein, but that was dishonoured only due to insufficient funds in the account.
7. Even in the grounds, the petitioners herein have stated that the cheque amount was settled by way of return of goods by the petitioners, therefore, the issuance of the Ex.P.1, cheque has been clearly admitted by the petitioners / accused. As found by the courts below, the respondent / complainant has established that the cheque was issued by the petitioners / accused for the amount due and payable to the respondent / complainant. As the defence raised by the petitioners in the grounds is that the cheque amount was settled by way of return of goods, hence, the burden is on the petitioners to prove that the cheque amount was paid or settled, as stated by them. As the petitioners / accused have raised a defence that the cheque amount was settled by return of goods, the plea raised by the learned Legal Aid Counsel that the respondent had failed to establish that the cheque issued was towards legally enforceable debt is not sustainable, as the plea of the petitioners / accused in the grounds is only discharge of the debt. There is no evidence from the petitioners / accused to show that the cheque amount was paid and the dues were settled, by way of return of goods.
8. It is a settled proposition of law that this Court cannot interfere with the concurrent finding of the courts below, unless the finding of the courts below is perverse. In order to decide the concurrent findings as perverse, such finding must be against evidence or without evidence. In the instant case, both the Courts have concurrently held that the guilt against the petitioners / accused has been proved under Section 138 r/w 142 of the Negotiable Instruments Act, only based on the evidence available on record and therefore, this Court is of the view that the finding of the Courts below is legally sustainable, which cannot be construed as perverse. Therefore, the respondent / complainant has established her claim beyond reasonable doubt. Though the revision has been preferred by the petitioners / accused, they were continuously remained absent. Though the respondent is a woman coming from Coimbatore for attending the case, she is driven from pillar to post by the petitioners / accused.
9. The cheque amount payable was Rs.2,59,873/-, however, the Court below has not passed any order directing the petitioners / accused to pay compensation to the respondent, though the compensation awarded shall be upto double the cheque amount and therefore, I am of the view that the mere sentence of one year simple imprisonment imposed on the second petitioner and the total fine of Rs.9,000/- would not meet the ends of justice, as there was no compensation awarded, based on the cheque amount to the respondent / complainant.
10. As it is a clear case, which has been established under Section 138 r/w 142 of the Negotiable Instruments Act, confirming the Judgment of the Court below, this revision is liable to be dismissed, accordingly, this Criminal Revision Petition is dismissed. However, to meet the ends of justice, I modify the sentence and thereby direct the petitioner to pay a sum of Rs.3 lakhs towards the cheque amount within eight weeks from the date of receipt of a copy of this order, instead of undergoing the sentence imposed by the Courts below. If the sum of Rs.3 lakhs is not paid, the second petitioner / accused, who issued the cheque on behalf of the first petitioner / A1, shall undergo the period of imprisonment, imposed, as per the impugned Judgment of the Courts below. Mr.C.Chokkalingam, Legal Aid Counsel is entitled to get remuneration of Rs.1,500/- (Rupees one thousand five hundred only).
tsvn To
1. The Additional Sessions Judge-cum-
Fast Track Court No.I, Erode
2. The Judicial Magistrate No.III, Erode.
3.The Public Prosecutor, High Court, Madras