B A I L S L I P The Petitioner/Accused was directed to be released on bail in and by the order of this Court dated 5.3.2004 and made in Crl.MP.No.2610/04 in Crl.RC.No.402/04. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.10.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.402 of 2004 P.Arumugam ... Petitioner/Appellant Accused Vs. P.Velusamy ... Respondent/Respondent Complainant This Criminal Revision Case has been filed under Section 397(i) and 401 of Criminal Procedure Code as against the judgment of the learned Additional Sessions Judge, Fast Track Court No.I, Erode made in C.A.No.76 of 2002 dated 23.02.2004 confirming the order passed in C.C.No.434 of 2000 on the file of Judicial Magistrate No.3, Erode dated 20.03.2002. For Petitioner : Mr.S.N.Thangaraj For Respondent : Mr.I.C.Vasudevan O R D E R The accused in C.C.No.434 of 2000 on the file of the learned Judicial Magistrate No.III, Erode, after having been convicted by the said court for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 preferred unsuccessfully an appeal before the learned Additional Sessions Judge, FTC No.I, Erode in C.A.No.76 of 2002 and thereafter has approached this court by way of the present criminal revision case under Section 397(1) and 401 Criminal Procedure Code. 2. The respondent herein preferred a private complaint on the file of the learned Judicial Magistrate No.III, Erode alleging commission of an offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act by the petitioner herein based on the contention that the petitioner herein borrowed a sum of Rs.1,75,000/- from the petitioner on 18.06.2000 and issued a cheque dated 18.08.2000 drawn on Kadathur branch of Bank of Baroda for the https://hcservices.ecourts.gov.in/hcservices/ said amount and that the said cheque, when presented for encashment on 31.08.2000, was dishonoured stating insufficiency of funds as the reason for such dishonour. The facts alleged in the private complaint are as follows:- i) On 18.06.2000, the petitioner herein/accused borrowed a sum of Rs.1,75,000/- from the respondent herein/complainant and thereafter for the discharge of the said debt issued a cheque dated 18.08.2000 drawn on Bank of Baroda, Kadathur branch for the above said amount. When the said cheque was presented for collection through Indian Overseas Bank, Erode on 31.08.2000, the same was returned with an endorsement "funds insufficient". Thereafter, the respondent herein issued a statutory notice on 22.09.2000 through his advocate demanding payment. Though the petitioner/ accused received the said notice, he neither gave a reply nor paid the amount as demanded in the notice and hence the offence under Section 138 read with 142 of the Negotiable Instruments Act became complete for which the petitioner herein/accused should be prosecuted and punished accordingly. 3) The said complaint was taken on file cases as C.C.No.434 of 2000 by the learned Judicial Magistrate No.III, Erode following the procedure prescribed for private complaint. In the trial three witnesses were examined as P.W.1 to P.W.3 and 12 documents were marked as Ex.P1 to Ex.P12 on the side of the prosecution (complainant). After completion of evidence on the side of the complainant, the incriminating materials found in the evidence adduced on the side of the respondent were pointed out and the petitioner herein/accused was questioned with regard to the same under Section 313(1)(b) of Criminal Procedure Code. He denied them as false. No witness was examined and no document was marked on the side of the petitioner herein/accused. 4) At the conclusion of trial, the learned Judicial Magistrate No.III, Erode upon a consideration of the evidence in the light of the arguments advanced on either side, came to the conclusion that the respondent herein/complainant had proved beyond reasonable doubt that the petitioner herein/accused had committed offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, convicted him for the said offence and after giving an opportunity to the petitioner herein/accused to make his submissions regarding the sentence to be imposed, sentenced him to undergo six months simple imprisonment and pay a fine of Rs.1,000/-. The learned Judicial Magistrate also imposed a default sentence of one month simple imprisonment in case of default in payment of fine. 5) The said judgment of conviction and the order of sentence of the learned Judicial Magistrate No.III, Erode dated 20.03.2002 was challenged by the petitioner herein/accused before the learned Additional Sessions Judge, FTC No.1, Erode in Criminal Appeal No.76 of 2002. The learned appellate judge, after hearing, concurred with the finding of the trial court and confirmed the conviction and the sentence by his judgment dated 22.03.2004. https://hcservices.ecourts.gov.in/hcservices/ 6. Aggrieved by and challenging the same, the petitioner/accused has brought-forth this criminal revision case on the grounds set out in the memorandum of grounds of criminal revision case. 7. The point that arises for consideration in this criminal revision case is:- " Whether the judgment of the lower appellate court confirming the conviction recorded and the sentence imposed by the trial court suffers from any material defect or illegality requiring interference by this court in this criminal revision case?" 8. This court heard the submissions made by Mr.S.N.Thangaraj, learned counsel for the petitioner and Mr.I.C.Vasudevan, learned counsel for the respondent and gave its anxious consideration. The materials available on record were also perused. 9. Advancing arguments on behalf of the petitioner/accused, the learned counsel for the petitioner would contend that the courts below had not properly appreciated the evidence adduced on behalf of the respondent/complainant; that the admission made by P.W.1 that he had no means to lend the amount as alleged by him, had been overlooked by the courts below; that the petitioner/accused by meticulous cross- examination had established that Ex.P1 cheque was given as a blank cheque to be a collateral security to the unregistered chit run by the respondent herein/complainant and that the same had been cunningly filled up and the complaint had been preferred against the petitioner/accused; that the difference in inks used for filling up various particulars in the cheque would clearly establish that the cheque was given as a blank cheque, as a collateral security for the unregistered chit transactions; that all the above said points had not been properly adverted to and appreciated by the courts below which lead to the erroneous conclusion that the offence under Section 138 of the Negotiable Instruments Act as claimed by the respondent/complainant had been established beyond reasonable doubt and that hence the judgment of the trial court as confirmed by the lower appellate court should be held not only contrary to law but also perverse and hence liable to be set aside. This court also heard the submissions made by Mr.I.C.Vasudevan, learned counsel for the respondent in reply to the above said submissions made by the learned counsel for the petitioner. 10. After going through the materials available on record in the light of the above said submissions made by the respective counsel, this court is of the considered view that the above said contention of the learned counsel for the petitioner cannot be sustained. It is not in dispute that Ex.P1 is a cheque leaf supplied by the bank to the petitioner/accused in respect of the account he was maintaining with the banker, namely Bank of Baroda, Kadathur branch. It is also not in dispute that the signature found therein is that of the petitioner/ https://hcservices.ecourts.gov.in/hcservices/ accused. Admittedly, the petitioner/accused signed the cheque and handed it over to the respondent/complainant. But curiously the petitioner/ accused would contend that the said cheque was issued as a blank cheque intended to be a collateral security for an unregistered chit conducted by the respondent/ complainant. But no evidence has been adduced by the petitioner/accused to prove that the respondent/accused was running an unregistered chit in which the petitioner/accused joined as a subscribing member. There is no evidence to prove the amount of chit or that the petitioner/accused was a priced subscriber and the blank cheque had been issued to ensure proper payment of future subscriptions. In the absence of any such evidence on the side of the petitioner/accused, there is nothing wrong in the finding of the courts below that the respondent/complainant has proved that the cheque was issued for repayment of the loan obtained by the petitioner/accused from the respondent/complainant. Though, P.W.1 was cross-examined with a suggestion he did not have sufficient means to advance such a huge amount, P.W.1 has categorically denied it and come forward with an explanation that he was having a monthly income of Rs.4,500/- to Rs.5,000/- from agriculture and his wife was drawing a monthly salary of Rs.14,000/- as a teacher and that hence he had sufficient means to lend the amount as claimed by him. 11. It should also be noticed that soon after the receipt of intimation regarding dishonour of cheque within the period allowed by the statute, the petitioner issued lawyer's notice, a copy of which and the postal receipts have been marked as Ex.P3 to Ex.P5; that the said notice was received by the petitioner/accused as evidenced by Ex.P6 and Ex.P7 - Acknowledgment cards and that despite the receipt of the statutory notice, the petitioner/accused did not take care to send a reply setting out the defences he has raised in this case before the trial court. Only in the said circumstances, the courts below have come to the conclusion that the complaint allegations made against the petitioner herein/accused that he committed an offence punishable under Section 138 of the Negotiable Instruments Act stood proved. There is no infirmity or illegality in the said finding of the courts below warranting any interference by this court in this criminal revision case. 12. Section 138 of the Negotiable Instruments Act provides for imposition of a punishment of two years imprisonment and also fine. Though the Judicial Magistrate being the trial judge cannot impose a fine of more than Rs.5,000/- Section 357(3) provides for directing payment of compensation. However, the trial court has chosen to impose substantive punishment of simple imprisonment and a fine of Rs.1,000/- without directing payment of any compensation. The respondent has not come forward with any plea for omission of the sentence of fine and award of compensation under the said provision. Therefoere, This court does not find any default or illegality in the order of sentence also. There is no scope for interference with the judgments of the courts below convicting the petitioner herein/accused for an offence under Section 138 of the Negotiable Instruments Act and convicting him for the said offence or on the question of sentence. https://hcservices.ecourts.gov.in/hcservices/ For all the reasons stated above, this court comes to the conclusion that the criminal revision case shall fail and the same deserves to be dismissed. The trial court is directed to secure the accused to undergo the remaining period of sentence. 13. Accordingly, criminal revision case is dismissed. Asr Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Additional Sessions Judge, Fast Track Court No.I, Erode. 2. do Through The Principal Sessions Judge, Erode. 3. The Judicial Magistrate No.3, Erode. 4. do Through The Chief Judicial Magistrate, Erode. 5.The Superintendent, Central Prison, Erode. ORDER in Crl.R.C.No.402/2004 BV(CO) SR/17.11.2008 https://hcservices.ecourts.gov.in/hcservices/