R. Mohan vs A.K. Vijaya Kumar

C.T. Selvam

This revision arises against the judgment of the Additional District and Sessions Judge, Fast Track Court III, Chennai, in C.A.No. 152 of 2004. The revision petitioner faced prosecution in C.C.No. 9321 of 2002 on the file of the V Metropolitan Magistrate Court, Egmore, Chennai 8, for the offence u/s 136 of the Negotiable Instruments Act. The case of the respondent/complainant is that the petitioner/accused and his wife jointly borrowed a sum of Rs. 5.00 Lakhs on 10.9.2001, on executing a promissory note. The accused issued a cheque dated 14.5.2002 in favour of the complainant towards principal amount, which was presented in the complainant''s Bank on 14.5.2002 and the same was dishonoured for the reason that there were insufficient funds in the account. The complainant issued statutory notice and followed the procedure u/s 138 of the Act and preferred a complaint against the accused. The respondent examined himself and marked eight exhibits. None were examined on behalf of the defense, but an extract from a diary showing an account was marked. The petitioner contended that he had borrowed only a sum of Rs. 3.00 Lakhs and the cheque was issued not for any legal debt, but only as a security for such loan and that as in April 2002, only a sum of Rs. 90,101/- was due, as per Ex.D1 and the deposition of PW1.

The trial Court, on appreciation of evidence, despite the admission of PW1 in cross examination that only a sum of Rs. 90,101/-was outstanding, as reflected in D1, found in favour of the complainant, since it was the admitted case that, there were several financial transactions between the complainant and the accused. It sentenced the petitioner to three months simple imprisonment and also directed payment of compensation of, a sum of, Rs. 5.00 Lakhs and that such sum should be deposited in Court and in keeping with Section 357 (3), Cr.P.C., such sum should be disbursed to the respondent/complainant as compensation, after expiry of the appeal period. It also imposed a default sentence of two months simple imprisonment on the failure to pay compensation. In view of the compensation awarded, no separate fine was imposed. Aggrieved by the same, the petitioner preferred an appeal in C.A.No. 152 of 2004, which came to be dismissed by the Additional District and Sessions Judge, Fast. Track Court III, Chennai, under judgment dated 10.12.2004. Against such dismissal, the petitioner has preferred this revision.

Heard Mr. S.Y. Masood, learned counsel for the petitioner and Mr. N.R. Elango, learned senior counsel for the respondent.

The crux of the submissions of the learned counsel for the petitioner is that as per Ex.D1, the sum due to the respondent as in April 2002 is only Rs. 90,101/-. A copy of one sheet of a diary had been produced by the counsel for the petitioner/accused and the same was marked as Ex.D1. On a perusal thereof, PW1/respondent had admitted that he, in his own hand, had written that as in April 2002, a sum of Rs. 90,101/-was due from the petitioner. It is the contention of the learned counsel that once the respondent had admitted to such position, then, there was no question of the petitioner being liable in a sum of Rs. 5.00 Lakhs. The cheque, which had been signed in blank and left as security for the promissory note transaction of Rs. 3.00 Lakhs, had been misused by the respondent towards preferring a false complaint. It is the further contention that in any event, the substantive sentence imposed upon the petitioner is harsh and particularly, the separate sentence in default of payment, of compensation.

On the other hand, learned senior counsel appearing for the respondent would submit that, if it were true that only a sum of Rs. 90,101/- is due from the petitioner/accused as in April 2002, it does not stand to reason that the petitioner, in his reply notice marked as Ex.P8, raised a contention of having borrowed only a sum of Rs. 3.00 Lakhs. In such reply notice, the petitioner has not spoken to the account book maintained by him or that the balance due was only a sum of Rs. 90,101/-. It is next contended by the learned senior counsel that Ex.D1 is a xerox copy of one page of a diary. The same was inadmissible in evidence and even if it be taken that PW1 had admitted to the due being only Rs. 90,101/-, such admission, which flows on the basis of an inadmissible document, would be of no consequence. Even so, if Ex.D1 is perused, it reflects several entries regarding chit, transactions and some entries regarding interest and therefore, Ex.D1 cannot be read as relating to the cheque in question. Learned senior counsel submits that the promissory note executed by the petitioner and his wife in a sum of Rs. 5.00 Lakhs on 10.9.2001 has been marked as Ex.P1 and the same has not been, in any manner, challenged. While, admittedly, the interest amount on the loan had been paid from time to time by the petitioner, the cheque had been issued by him towards repayment of the principal amount due under the promissory note. The learned senior counsel would submit that in the circumstances, the Courts below have rightly entered upon the findings of conviction, which do not call for any interference through the exercise of revisional powers of this Court. On consideration of rival submissions, this Court sees no error in the findings of the Court below convicting the petitioner. As rightly submitted by the learned senior counsel, the promissory note evidencing the debt has been marked as Ex.P1 and the same has not been challenged in any manner. Though the learned senior counsel is right in his submission that Ex.D1, being a xerox copy, would be inadmissible in evidence and cannot form the basis of any conclusive evidence, we note that the evidence of PW1 is that a diary was maintained by the petitioner, in which, he had noted the accounts details. Therefore, instead of producing a xerox copy of one sheet of diary, what the petitioner ought to have done is to produce the very diary itself. He has none to blame but himself for having not done so. In fact, that he has not done so would lead this Court to draw adverse inference against him. Though there has been some submission of the particulars of the cheque having been filled up by the respondent/ complainant to his own advantage, we need not deal with the same, since, in the instant case, the debt itself stands proved through marking of the promissory note Ex.P1. Even so, on considering the large sum involved, this Court has called upon the respondent to produce copies of the income tax returns towards satisfying itself that the present loan transaction stands reflected therein and the respondent has produced copies of the income tax returns for the assessment years 2002-2003, as also subsequent years. The same reflect the dues of a sum of Rs. 5.00 Lakhs from the petitioner. We, therefore, find no merits in the revision and the same shall stand dismissed. However, we find it necessary to accept the submission of the learned counsel for the petitioner that no separate sentence could be passed in default of payment of compensation, when a substantive sentence of imprisonment independently stands passed. In all other respects, findings of the Courts below holds good. The trial Court is directed to take steps to procure the petitioner towards serving out his sentence. It is made clear that the sentence imposed on default of payment of compensation is set aside.