Varadhan vs Velraj

Mr. S. Nagamuthu, J.—The petitioner is the accused in C.C.No.266 of 2004 on the file of the Judicial Magistrate No.II, Thoothukudi, and the respondent is the Complainant in the case. The respondent filed the said case by way of private complaint alleging that the petitioner has committed an offence punishable under Section 138 of the Negotiable Instruments Act. The trial Court by judgment dated 22.06.2006 found him guilty under Section 138 of the Negotiable Instruments Act and accordingly, convicted him and sentenced him to undergo rigorous imprisonment for 12 months and to pay a fine of Rs.3,000/-, in default, to undergo three months simple imprisonment. Challenging the same, the petitioner filed an appeal before the Additional District Judge, Fast Track Court No.II, Thoothukudi in C.A.No.100 of 2006. The lower appellate Court by judgment dated 13.11.2007 dismissed the appeal confirming the conviction and sentence. As against the same, the petitioner is before this Court with this revision.

I have heard the learned counsel on either side and also perused the materials available on record.

The case of the complainant in brief is as follows:

"The accused had borrowed a sum of Rs.1 lakh from the complainant. In discharge of the same, he issued a cheque in question dated 03.02.2004 for a sum of Rs.1 lakh. The cheque was presented for collection and it was dis-honoured for want of sufficient funds in his account. A statutory notice was issued and the same was not complied with by the accused and thereafter, the complainant filed the private complaint."

The case of the accused is that he did not borrow any such amount from the complainant at all. So far as the cheque in question, he gave the same as a security to the complainant only as a blank cheque, but signed by him. Now, the complainant has misused the same filled according to his convenience and had presented the same for collection.

In order to prove the case, the complainant has examined himself as P.W.1 and one Vijayan as P.W.2 and 6 documents were marked on the side of the complainant. When the incriminating evidences were put to the accused under Section 313 Cr.P.C, he denied the same as false. However, he did not choose to examine any witness on his side nor to mark any documents. Having considered the above, the trial Court found him guilty. Accordingly, punished him, which was confirmed by the lower appellate Court.

In this revision, the learned counsel for the petitioner/accused would submit that the allegation that the accused borrowed a sum of Rs.1 lakh is very vague and details of such borrowal, place of borrowal, the witnesses, who were present at the time of borrowal have not been mentioned. He would further submit that no documents whatsoever have been produced to prove such borrowal. The learned counsel would further submit that so far as the cheque is concerned, though it is true that the signature was made by him, it was issued blank to the complainant, only as a security. So far as the quantum of punishment is concerned, the learned counsel would submit that at the time of the occurrence, the accused was aged 65 years and now, he must be more than 75 years old. Considering the poor status, his age and all other attending circumstances, in the event, this Court has come to the conclusion that the accused has committed the offence, the sentence may be reduced or he may be admonished.

The learned counsel for the respondent would vehemently oppose this petition. According to him, since the signature in the cheque has been admitted, the presumption under Section 139 of the Negotiable Instruments Act would be drawn in favour of the complainant. He would further submit that there was no reply notice issued denying his liability. He would further submit that there is no reason to discord the evidence of P.W.1. So far as the quantum of punishment is concerned, the learned counsel would submit that the trial Court is very reasonable in imposing the punishment.

I have considered the above submissions.

It is true that the date, the time, place and other details of the borrowal have not been mentioned in the complaint. But the fact remains that there was no reply sent to the notice issued by the complainant. On receipt of the statutory notice, the accused sent a notice to the complainant calling upon him to send notice in Tamil language, because he did not know to read and write English. Except stating this, he has not stated anything else. But the lower Court recorded that the accused is a retired employee from Tamil Nadu Electricity Board and therefore, he must be knowing the contents of the notice. Had it been true that the cheque was issued only as a security that too as blank, nothing would have prevented him from sending a reply notice and also to take further action for the same. The very fact that he has not taken any action on the same and he did not send any reply notice would give an inference that the defence set up by him is only an afterthought. The Court below have concurrently held that there was legally enforceable liability and the cheque was issued only to discharge the same. I do not find any perversity in the finding of the lower Court.

In coming to the quantum of punishment, now, the appellant is aged 75 years. He is a poor man. He has to look after the other family members. Having regard to all these mitigating circumstances and also having regard to the aggravating circumstances like, the amount involved and that the offence is quasi civil in nature, I am inclined to reduce the sentence to rigorous imprisonment for one month. The fine amount imposed by the lower Court deserves to be confirmed.

In the result, the criminal revision petition is partly allowed; the conviction under Section 138 of the Negotiable Instruments Act is confirmed. The sentence imposed on him by the Court below is modified and there shall be a sentence of rigorous imprisonment for one month imposed on the appellant with fine of Rs.3,000/-, in default, to undergo simple imprisonment for 15 days. The period of imprisonment already undergone shall be set off.