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IN THE HIGH COURT OF JUDICATURE AT MADRAS
D. Bharatha Chakravarthy, J.
H. Stella Josephine Mary – Petitioner
Versus
S. Muthulakshmi – Respondent
Crl.R.C. No. 1188 of 2014
Decided On : 30-11-2021
Criminal Procedure Code, 1973 – Section 200,313,397 r/w 401 and 386(b),(ii) and (iii) - Negotiable Instruments Act – Section 138 - Evidence Act – Section 114 - Return of cheque - Non-payment of fine - This Criminal Revision Case is filed by petitioner/accused, against conviction for an offence under Section 138 of Negotiable Instruments Act, by learned Metropolitan Magistrate-Fast Track Court by judgment and imposing a sentence of fine of which a sum was ordered to be paid to respondent complainant and against the judgment of XV Additional Sessions Court, Court in Crl.A. confirming the conviction for offence under Section 138of Negotiable Instruments Act, but modifying the sentence by incorporating default clause for non-payment of fine by including that in default of payment of fine to undergo a Simple Imprisonment for six months - Whether one cheque or three cheques are issued as security to daughter of the complainant– Held, learned Counsel for the complainant would submit that Courts below have rightly found guilt of petitioner/accused when cheques and promissory note are marked as Exs.P1 to P4 and other ingredients namely, return of cheque and issuance of statutory notice has been duly proved, the presumptions are therefore in favor of complainant under Sections 118 and 139 of Negotiable Instruments Act and the attempt of defense is only a vague and false one so as to wriggle out of liability to pay cheque amount and their defense is self-contradictory and in any event, there was no probable case of defense and therefore, this Court has nothing to interfere with the finding of guilt and sentence - It is his further submission that incorporating default sentence does not amount to enhancement of sentence and bar under Section 386 (b), (ii) and (iii) of the Code of Criminal Procedure cannot be pressed into service - But, there is three months gap as to dates of cheque and to the date of the presentation and the dates of events are inexplainable by the complainant - Thus, accused had established a probable defense and presumption under Section 118 and 139 of the Act stands rebutted in instant case and in the absence of any other positive/corroborative evidence on record, accused is entitled for acquittal – Court hold that the judgment of Trial Court and the Appellate Court have missed out on question of law relating to Ex-P1, and but for same, finding of guilt is liable to be reversed and thus making this a case for interference in exercise of revisionary jurisdiction - Criminal Revision Petition in Crl.R.C. is allowed.
JUDGMENT :
(Prayer: Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., against the judgment of conviction and sentence passed by the learned Metropolitan Magistrate-Fast Track Court No.II, Egmore, Chennai in C.C.No.12750 of 2003, confirmed and modified by the XV Additional Sessions Court at Chennai, on 05.11.2014 in Crl.A.No.178 of 2012.)
1. This Criminal Revision Case is filed by the petitioner/accused, against the conviction for an offence under Section 138 of the Negotiable Instruments Act, by the learned Metropolitan Magistrate-Fast Track Court No.II, Egmore, Chennai, by judgment dated 10.09.2012 in C.C.No.12750 of 2003 and imposing a sentence of fine of Rs.2,20,000/- of which a sum of Rs.2,00,000/- was ordered to be paid to the respondent complainant and against the judgment of the XV Additional Sessions Court, Court in Crl.A.No.178 of 2012 dated 05.11.2014, thereby, confirming the conviction for the offence under Section 138of Negotiable Instruments Act, but, however, modifying the sentence by incorporating the default clause for non-payment of fine by including that in default of payment of fine of Rs.2,20,000/- to undergo a Simple Imprisonment for six months.
2. This is a private complaint filed under Section 200 of Cr.P.C. The case of the complainant is that the accused had borrowed a sum of Rs.2,00,000/-, jointly along with her husband, from the complainant on 30.12.2002. The accused had also jointly executed a promissory note for the said sum of money. The accused, at the time of borrowal, agreed to repay the amount, within two months together with interest at the rate of 1% per month i.e., a sum of Rs.2,000/- per month, towards interest for the amount borrowed by her. On the date of borrowal i.e., on 30.12.2002 itself, the accused herein had issued three post dated cheques towards repayment of the amount borrowed by her. The accused issued a cheque dated 29.01.2003, bearing No.26619 drawn on Syndicate Bank, Fort St. George, Chennai for a sum of Rs.90,000/-; another cheque dated 02.02.2003, bearing no.266720, drawn on Syndicate Bank, Fort St. George, Chennai, for a sum of Rs.50,000/- and the third cheque dated 10.02.2003, bearing No.247422 drawn on Centurion Bank, Annasalai, for a sum of Rs.60,000/-. The first cheque dated 29.01.2003 was presented for collection with her banker namely, I.C.I.C.I Bank, Annasalai, Chennai on 25.06.2003 and the same was returned with an endorsement “funds insufficient” by communication dated 28.06.2003 along with a memo on dishonour of the bankers of the accused dated 26.06.2003. The second cheque bearing No.266720 was also presented with her aforesaid bankers on 05.07.2003 and the same was returned with an endorsement “funds insufficient” by communication dated 09.07.2003 with a memo of dishonour dated 07.07.2003. Thethird cheque, bearing No.247422 was presented to the aforesaid banker on 16.16.2003 and it was returned on 19.06.2003 along with memo of dishonour dated 17.06.2003 with an endorsement “funds insufficient”. The complainant, therefore, caused a legal notice on 15.07.2003, which was received by the accused on 22.07.2003. However, after receipt of the notice, the accused neither made payment of the amount due under the cheques nor issued any reply notice and therefore, upon completion of 15 days time, from the date of receipt of the notice, the offence under Section 138 of Negotiable Instruments Act stood committed and therefore, complaint was presented on 29.08.2003.
3. The learned Magistrate recorded the sworn statement of the complainant on 24.09.2003, took the case on file and issued summons to the accused. Upon questioning, the accused denied the commission of offence and stood for trial. During the trial, the complainant examined herself as P.W.1. One C. Vijayakumar, an official from bankers of the accused in respect of the first two cheques, namely, Syndicate Bank, Fort St.George, Chennai was examined as P.W.2. One K.V. Sunil, the official from the banke
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