Partly allowed

Mr.K.Ashok v. K.Puttasamy

Madras HC12 Jul 2013CRL RC/1020/2006

Case brief

AI extract

What is this about?

In a criminal revision under Sections 397 and 401 of Cr.P.C. challenging the quashing of a conviction, the High Court found the trial court's framing of issues adequate but reduced the restricted sentence from six months to two months simple imprisonment while upholding compensation.

What did the court decide?

Sentence reduced to two months simple imprisonment; accused to deposit compensation or undergo imprisonment.

Mr.K.Ashok Vs K.Puttasamy — Cheque Dishonour | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 12 / 07 /2013

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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Crl.R.C.No.1020 of 2006

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and

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M.P.No.1 & 3 of 2006

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Mr.K.Ashok ... Petitioner/Respondent/Complainant Vs. K.Puttasamy ... Respondent/Appellant/Accused

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PRAYER : Criminal Revision is filed under Sections 397 and 401 of Cr.P.C., to set-aside the judgment dated 30.08.2005 passed by the learned Principal District and Sessions Judge, Coimbatore in C.A.No.224 of 2004 against the order dated 20.04.2004 in C.C.No.35 of 2001, on the file of Judicial Magistrate-VI, Coimbatore, remanding the case to the trial Court.

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For Petitioner : Mr.L.Baskaran For Respondent : Mr.K.Kalyanasundaram

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O R D E R

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The brief facts of the case are as follows:-

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The revision petitioner herein / complainant has filed C.C.No.35 of 2001 against the respondent herein and three others stating that the respondent had issued a cheque for a sum of Rs.50,000/- dated 30.12.2000 in favour of the complainant in order to partly discharge the legally enforceable debt of a sum of Rs.5,82,000/-. The said cheque was presented for collection and was returned with an endorsement "exceeds arrangement". Hence, the complainant subsequently observed all legal formalities and filed the said case under Section 138 of Negotiable Instruments Act. On questioning, the accused had pleaded not guilty and hence, the case has been proceeded with.

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On the side of the complainant, the complainant was examined as P.W.1 and the Assistant Manager of the Bank was examined as P.W.2 and the following documents were marked, viz., cheque dated 30.12.2000, bank memo returns, debit advice, advocate notice, postal acknowledgment card, authorization letter, statement of accounts, agreement dated 11.03.1998, deposit receipt and a letter dated 04.04.2000. On the side of the accused, two witnesses https://hcservices.ecourts.gov.in/hcservices/ were examined viz., one Maheswaran and one Puttasami and seven

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documents were marked viz., auditors report, complaint dated 15.11.2000, deposit receipt acknowledgment document, daily register, notice regarding deposit of Rs.6,00,000/- made on 31.03.2000, extract of annual account register for the year 19981999 and document showing transfer of account from Mr.Ashok to Mr.Natarajan.

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P.W.1 had adduced evidence that he is the proprietor of Ashok Agencies and he had supplied scrap materials in the year 1995 to the accused and as such there was an outstanding of a sum of Rs.10,00,000/-. In order to discharge a part of the legally enforceable debt, the accused had issued a cheque for a sum of Rs.50,000/- dated 30.12.2000. P.W.1 further stated that both cheques had been deposited in his bank, viz., Bank of India, Ramanathapuram Branch. The said cheque was returned with an endorsement "exceeds arrangement". P.W.1 further stated that he had issued a legal notice and the same was received by the accused. After receipt of the said legal notice, the accused had neither replied nor made any payment. Supporting his evidence, he had marked the above mentioned documents as exhibits.

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P.W.2, the Bank Manager had adduced evidence that both the cheques of the accused were presented at the Bank for collection and the same were returned with an endorsement "exceeds arrangement".

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R.W.1 had adduced evidence that he is the auditor of the first respondent Company and he had audited the companies accounts and submitted his report. The reports contained details regarding deposit, share application and share deposit particulars. R.W.2 is a partner in the first respondent Company and he had stated that each of the three partners had contributed a sum of Rs.13,75,000/-. He further adduced evidence that one V.Subramaniam, was looking after the production, marketing and sales of the products in the said firm and that he was given the responsibility of purchase of raw materials for the said firm. R.W.2 further stated that in the year 1999, one Mr.Mohiedu and Mr.Vijayakumar had entered into the partnership and they had invested Rs.17,75,000/and Rs.8,85,000/- respectively in the said firm. R.W.2 further stated that in the month of June 1999, he left the company since the Directors had not extended their co-operation. Subsequently, the said Subramaniam had paid 50% of the company and it was decided that the shares lying in the name of Vijayakumar would be bought by one C.R.Swaminathan for Rs.4,45,000/-. R.W.2 further stated that it was decided that he should pay Rs.6,82,500/- for the shares held by the V.K.Natarajan. He further deposed that he had given seven cheques to the V.K.Natarjan, out of which, six of them had been encashed and that he was liable to pay only the amount due for the seventh cheque for Rs.58,750/-. He further adduced evidence that as per their agreement they have paid 90% of the amount due and that as the transfer of shares had not been effected, they had withheld payment for the cheques issued. R.W.2 further adduced evidence regarding company transaction and affairs marked the above https://hcservices.ecourts.gov.in/hcservices/ mentioned documents in support of his contentions.

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After recording the evidence of witnesses and on hearing the arguments of the learned counsels on both sides and on perusing the documents marked by them, the learned Magistrate held that proceedings for getting relief as per the Rules and Regulations and laws laid down as per the administrative procedures is a separate proceeding and that the relief sought under Section 138 of Negotiable Instruments Act for cheques dishonour is altogether a separate one. The learned Magistrate on holding that the cheque issued by the accused had been dishnoured and on observing that the accused had neither paid the cheque amount nor had replied to the legal notice of the complainant, held the accused guilty of offence under Section 138 of Negotiable Instruments Act. Therefore, the learned Magistrate imposed sentence on the first accused to pay compensation of a sum of Rs.15,000/- and also ordered payment of compensation of a sum of Rs.15,000/- by each of the accused 2, 3 and 4 and also sentenced them to a period of six months simple imprisonment.

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Against the conviction and sentence, the third accused had filed an appeal in C.A.No.224 of 2004 before the Principal District and Sessions Judge, Coimbatore. The learned judge after hearing the arguments of both sides and on perusing the trial Court judgment and also considering the appeal grounds, set-aside the conviction and sentence passed in C.C.No.35 of 2001, on the file of Judicial Magistrate-VI, dated 20.04.2004 and further directed the trial Court to conduct re-trial of the case to decide the aspects as to the nature of the complaint as per the terms of the agreement in question by both parties concerned and then arrive at a conclusion as to the validity and legal enforceability of the cheques in question by letting in further evidence, if necessary after giving due opportunities to both parties and decide the case on merits.

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Against the said order, the above revision has been filed by the complainant.

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The learned counsel for the petitioner vehemently argued that the lower appellate Court has committed a grave error by remanding the case to the trial Court for a fresh trial without finding out any issue for reconsideration and as such, the remand order is not sustainable under law and is an arbitrary one. He further submitted that when the drawer of the cheque admitted the signature, there is no dispute for issuance of the cheque and the same cheques were dishonoured, as such, only limited issue arises in the instant case as per provision 138 of Negotiable Instruments Act. The learned counsel further contended that as there is no lacuna in the trial Court judgment, retrial is not necessary in the said case. The remand order is prejudicial to the complainant. The transaction had taken place in the year 2001. In order to create multiple proceedings, the remand order has been passed without assigning relevant reasons pertaining to the case. The auditor's report regarding the company transaction and profit and loss is https://hcservices.ecourts.gov.in/hcservices/ entirely different to issuance of the cheque. The cheque had been

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issued, in order to discharge a part of the legally enforceable debt for the outstanding amount since the complainant supplied raw materials viz., scrap. Therefore, the auditing report is not relevant in this case, but the learned appellate Court judge had entirely acted upon the report, which is an erroneous one.

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The learned counsel for the respondent vehemently argued that the auditor's report clearly disclosed the companies transaction. As per the companies reports and the accounts books of the company, the entire facts had been disclosed by the auditor and as such, there is no legally enforceable debt payable by the accused. The partnership company, viz, the first accused company also made informal arrangement to transfer the share holding to third parties. As per the contention of the complainant, the raw materials had been supplied to the first accused and not to the respondent herein. Therefore, the remand order is appropriate to determine the veracity of the legally enforceable debt which is the main issue, in the instant case. On this issue, no findings had been given and as such, there is discrepancy and shortcomings in the trial Court judgment and therefore, re-trial is of the paramount importance. Actually, the original complaint is not maintainable since it had been levelled against the third parties at the time of transaction. The auditor is the core witness to reveal the entire facts of the case, especially, legally enforceable debt for which, there is entry in the account book which had been maintained by the accused company. Hence, the learned counsel entreats the Court to dismiss the revision.

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On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the first appellate Court judgments, this Court is of the view that the learned trial Court judge had framed necessary issues, viz., issuance of chqeues, dishonour of cheque, legal notice and limitation period as per Section 138 of Negotiable Instruments Act. If the complainant had initiated money recovery proceedings before the trial Court, then the auditor's report discussion is necessary. But in the instant case, as the complainant had sought relief for dishonour of cheque under Section 138 of Negotiable Instruments Act and based on the above mentioned issues, the trial Court had found the accused guilty of offence under Section 138 of Negotiable Instruments Act and imposed punishment, which is appropriate. The trial Court had imposed compensation of a sum of Rs.15,000/- on each of the four accused which is appropriate. However, the period of six months simple imprisonment which had been imposed on the accused 2, 3 and 4 are on the higher side and therefore, this Court reduces the sentence from six months simple imprisonment to two months simple imprisonment. Now, the accused 2 to 4 have to either pay the said compensation as per trial Court order or undergo two months simple imprisonment, as per this Court's modified order. The cause of action arose in the year 2001 and therefore, this Court directs the learned Judicial Magistrate-VI, Coimbatore to issue bailable warrant at once and secure the accused 2, 3 and 4 in order to https://hcservices.ecourts.gov.in/hcservices/ undergo two months simple imprisonment. If all the accused deposit

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the compensation amount as per trial Court order before being remanded into judicial custody, then the accused would be set at liberty. If the accused deposit the said compensation amount, then the complainant is at liberty to withdraw the said compensation from the trial Court, after filing a Memo, along with a copy of this order. This order has been passed by this Court after invoking the discretionary power vested with it.

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In the result, the above revision is partly allowed with the above observations. Consequently, the order passed in C.A.No.224 of 2004, on the file of Principal District and Sessions Judge, Coimbatore, dated 30.08.2005, setting aside the conviction and sentence passed in C.C.No.35 of 2001, on the file of Judicial Magistrate-VI, Coimbatore, dated 20.04.2004 is modified.

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Sd/
Deputy Registrar
//True Copy//
Sub.Asst.Registrar
To
1. The Judicial Magistrate-VI,
Coimbatore.
2. The Principal District and Sessions Judge,
Coimbatore.
Crl.R.C.No.1020 of 2006
GR(CO)
JJM 25.07.2013

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https://hcservices.ecourts.gov.in/hcservices/

Mr.K.Ashok v. K.Puttasamy

Case brief

What is this about?

What did the court decide?

Mr.K.Ashok v. K.Puttasamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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