Partly allowed

Saravana Priya v. Nambinarayanan

Madras HC1 Aug 2014CRL RC(MD)/637/2013

Case brief

AI extract

What is this about?

The High Court considered a criminal revision challenging conviction and sentencing for cheque dishonour. While upholding the conviction and substantive sentence, the Court quashed the fine separately imposed and confirmed the compensation order of Rs.38,000, ruling that courts cannot award compensation over and above a fine under Section 357 Cr.P.C.

What did the court decide?

The fine was set aside and refunded. The conviction and substantive sentence were confirmed. The order directing payment of Rs.38,000 as compensation was confirmed.

Saravana Priya Vs Nambinarayanan — Cheque Dishonour | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :01.08.2014 CORAM

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THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

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Crl.R.C.(MD)No.637 of 2013 and M.P.(MD).No.2 of 2013

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Saravana Priya ... Petitioner

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Vs.

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Nambinarayanan ... Respondent

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Prayer: Criminal Revision Petition is filed under Section 397 r/w. 401 of Cr.P.C., against the judgment passed in C.A.No.113 of 2009 on the file of the IVth Additional Sessions Judge, Tirunelveli dated 23.11.2012 confirming the award passed in S.T.C.No.6888 of 2006 on the file of the Judicial Magistrate Court No.IV, Tirunelveli dated 03.12.2009.

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For Petitioner : Mr.S.Meenakshisundaram For Respondent : Mr.A.K.Manickam

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O R D E R

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This Revision is directed against the judgment of the learned IVth Additional Sessions Judge, Tirunelveli dated 23.11.2012 pronounced in C.A.No.113 of 2009 confirming the judgment of conviction and the order of sentence including the order directing compensation made by the learned Judicial Magistrate No.IV, Tirunelveli on 03.12.2009 in S.T.C.No.6888 of 2006.

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The said case in S.T.C.No.6888 of 2006 came to be instituted on complaint preferred by Nambinarayanan, the respondent herein, on the file of the trial Court, based on the dishonour of a cheque allegedly issued by the revision petitioner in favour of the respondent in discharge of a debt and the subsequent failure to make arrangements for the payment of the cheque amount, after the dishonour was intimated to the revision petitioner by way of a statutory notice contemplated under Section 138 of the Negotiable Instruments Act. The revision petitioner herein/accused took a plea that the cheque was not issued for the discharge of any debt or other liability as contemplated under Section 138 of the Negotiable Instruments Act; that on the other hand, the same was issued as a security for repayment of a loan which was lesser in amount and that the difference in the ink used for filling up the cheque and the ink used for the signature of the revision petitioner would probablise the case of the revision petitioner. In the trial that was conducted by the Judicial Magistrate No.IV, Tirunelveli, including the respondent herein three witnesses were examined and 5 documents were marked on the side of the respondent herein/complainant. No witness was examined and no document was produced on the side of the revision petitioner herein/complainant. https://hcservices.ecourts.gov.in/hcservices/

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Besides taking a stand that there was no debt due from the petitioner herein/accused or other liability towards the respondent herein/complainant and that the cheque came to be issued only as a security for return of a loan, the revision petitioner also took a stand that the statutory notice was not served on her and that hence, the condition precedent for initiating prosecution for the offence under Section 138 of the Negotiable Instruments Act was not complied with. The learned Judicial Magistrate after considering the evidence, accepted the case of the respondent herein/complainant that the cheque was issued for the discharge of a loan. Regarding the plea that the cheque was issued only as a security for the repayment of a loan, the learned Judicial Magistrate rendered a finding that the respondent herein was able to prove that it was issued in discharge of a debt or other liability, as the revision petitioner/accused had accepted that there was a loan transaction. The admission that the cheque pertains to the account maintained by her and the signature found therein was that of her would attract the presumption under Section 139 of the Negotiable Instruments Act and that such a presumption was not rebutted by reliable and sufficient evidence by the revision petitioner herein. Regarding the contention of the revision petitioner that statutory notice was not served on her, the learned Judicial Magistrate, on appreciation of evidence, especially the evidence of P.W.1 and also P.W.3, the Postmaster, came to a conclusion that the official acts of the postman was properly done and it was not proved to be otherwise by the revision petitioner herein. Besides the evidence of P.W.1 and P.W.3, the acknowledgment marked as Ex.P.4 also contains the signature of the revision petitioner. However, there is a difference between the signatures found in the cheque marked as Ex.P1 which is admitted by the revision petitioner and the acknowledgment card marked as Ex.P4. In Ex.P1 - cheque the revision petitioner has signed as M.Saravana Priya. In Ex.P4 - acknowledgment card, it has been signed as M.S.Priya. The explanation offered by the respondent/complainant is that the revision petitioner used to sign in both ways. The said evidence adduced on the side of the respondent herein/complainant stands unrebutted. Again a comparison of the signature viz., admitted signature found in Ex.P1 with the disputed signature found in Ex.P4 will make it clear that both the signatures are made by one and the same person. If the relative sizes, structures and the lay of the letters found in the second part of the signature reading "Priya" are compared, the signature found in Ex.P4 does not seem to contain any trace of forgery. If at all the revision petitioner was confident that the signature found therein was not that of her, she could have adduced sufficient evidence to prove the same. But the revision petitioner did nothing and in fact, she did not adduce any oral or documentary evidence as against the concrete official evidence of P.W.3. The attempt made on behalf of the revision petitioner to project that P.W.3 was not the person, who got personal knowledge of the service of notice on the revision petitioner would not help the revision petitioner in any way in proving her case that the notice was not served on her.

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As pointed out supra, when a letter is addressed to a particular person, it shall be presumed to have reached him/her and that principle will apply with more vigour in case it is acknowledged by the signature of the party when it has been sent by registered post. The party, who https://hcservices.ecourts.gov.in/hcservices/ disputes the service of notice and the signature found in the acknowledgment card could have very well summoned the concerned postman

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or any other person, who according to him/her impersonated the addressee for receiving the notice. No such thing was done by the revision petitioner. Hence, the learned Judicial Magistrate did not commit any mistake in arriving at a conclusion that none of the pleas of defence taken by the revision petitioner herein was sustainable. The learned Judicial Magistrate came to a correct conclusion that the revision petitioner was proved to be guilty of the offence punishable under Section 138 of the Negotiable Instruments Act.

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On appeal, the learned IVth Additional Sessions Judge, Tirunelveli reappraised the evidence and rendered a concurrent finding confirming the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. As against the concurrent findings, the present revision came to be filed. The attempt made by the revision petitioner to show that both the Courts below committed an error in arriving at the conclusion that the revision petitioner/accused was proved to be guilty of the offence with which she stood charged has miserably failed. This Court dealing with the revision should not ordinarily interfere with the findings of the Courts below, especially when the findings of the Courts below are concurrent, unless this Court finds such finding to be totally erroneous or perverse. The revision petitioner has failed in her attempt to project the findings of the Courts below holding her guilty of the offence punishable under Section 138 of the Negotiable Instruments Act to be erroneous.

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Upon considering the judgments of the Courts below and also the materials available on record, this Court is of the considered view that the Courts below did commit no wrong in convicting the revision petitioner/accused holding her guilty of the offence for which she was prosecuted. Hence, the judgment of conviction pronounced by the trial Court, which stands confirmed by the judgment of the lower appellate Court, does not require any interference by this Court and in fact, any such interference shall not be justified in law. Accordingly, the conviction has got to be sustained.

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Though this Court has come to the conclusion that the conviction of the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act cannot be set aside and it has got to be confirmed, this Court is able to find a glaring mistake and error apparent on the face of the record in the operative portion of the judgments of the Courts below imposing penalty and directing payment of compensation. The learned Judicial Magistrate, after recording conviction, imposed a punishment of simple imprisonment for three months and a fine of Rs.2,000/- with a default sentence of one month simple imprisonment, in case of default in payment of fine. Besides awarding such a substantive sentence of imprisonment and also fine, the learned Judicial Magistrate chose to incorporate a direction for payment of Rs.38,000/- viz., the amount covered by cheque, as compensation to the respondent herein/complainant. In this regard, the learned Judicial Magistrate seems to have simply ignored the provision contained in Section 357 dealing with the power of the Court to direct payment of compensation to the victim.

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

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Section 357 reads as follows:

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357. Order to pay compensation.-(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-

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(a) in defraying the expenses properly incurred in the prosecution;

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(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

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(c) When any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

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(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

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(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

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(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

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(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

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(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.

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Sub Section (1) deals with the power of the Court to direct payment of the entire part of the fine or a portion of it towards defraying the expenses of the prosecution and towards payment of compensation to any person who suffered any loss or injury caused by the offence. It makes clear that only the whole or a part of the fine amount can be applied towards defraying the expenses or towards payment of compensation to the victim. Sub section (1) does not contemplate and it https://hcservices.ecourts.gov.in/hcservices/ does not give power to the Court to award compensation separately apart from payment, out of fine, in case fine forms part of the sentence. So, in a case wherein the sentence includes fine, the Court was not have the

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power to pass an order of compensation over and above the amount imposed as fine.

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Sub section (3) alone empowers the Court to pass an order directing the accused to pay compensation. Sub Section (3) is attracted, when the sentence does not include fine. The power conferred under Sub Section (1) is to apply the fine amount in a particular way. It does not contemplate any direction either to pay the fine or compensation directly to the victim. On the other hand, Sub Section (3) contemplates a direction directing the accused to pay the compensation directly to the victim. Therefore, it can be precisely stated that Sub Section (1) and Sub Section (3) regarding the direction to pay compensation are mutually exclusive.

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Without considering the scope of the provision, the learned Judicial Magistrate, besides imposing a fine of Rs.2,000/- and directing the accused to undergo a default sentence, chose incorporate a direction directing the accused to pay compensation to the complainant viz., the respondent herein. Both shall not go together and it is an error apparent on the face of the record. The learned IVth Additional Sessions Judge (appellate Judge) also committed the very same mistake in confirming the sentence and order of compensation without applying his mind to the above said provision. The glaring error cannot be allowed to remain without being rectified. This Court cannot close its eyes to such an error apparent on the face of the record. Though the revision petitioner has not chosen to challenge that part of the judgment of the appellate Court, the same being a legal issue, this Court heard the submissions of both the counsel on this aspect and this Court is of the view that this Court is duty bound to rectify the defect and correct the error apparent on the face of the record. Section 357 sub Clause (4) confers power on the appellate or revisional Court to pass such an order contemplated either under Sub clause (1) or under sub clause(3). Using such power this Court can either uphold the imposition of fine and direct the entire fine amount or a portion of it to be paid as compensation to the respondent/complainant. Or else it can set aside that part of the sentence imposing fine and uphold with or without modifying, the order of compensation made under Sub Clause (3). Considering the facts and circumstances of the case, this Court deems it appropriate to modify the sentence by removing the imposition of fine and upholding the compensation awarded under Sub Section (3) of Section 357 Cr.P.C.

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In the result, the revision is partly allowed. The conviction and imposition of a substantive sentence of three months simple imprisonment for the offence under Section 138 of the Negotiable Instruments Act are confirmed. The imposition of fine alone is set aside. The fine amount, if any, collected shall be refunded to the revision petitioner. The later part of the order directing the revision petitioner/accused to pay a sum of Rs.38,000/-, being the amount covered by the dishonoured cheque, as compensation to the respondent herein/complainant shall stand confirmed. Consequently, the connected Miscellaneous Petition is closed.

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Sd/-

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Assistant Registrar(AS)

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\True copy\

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

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Sub Assistant Registrar

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THE IV ADDITIONAL SESSIONS JUDGE, TIRUNELVELI

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-DO-THRO'THE PRINCIPAL SESSIONS JUDGE TIRUNELVELI

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THE JUDICIAL MAGISTRATE COURT NO.IV, TIRUNELVELI

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-DO-THRO'THE CHIEF JUDICIAL MAGISTRATE TIRUNELVELI

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+1 CC to Mr.A.K.MANICKAM, ADVOCATE SR.NO.42672

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+1 CC to Mr.S.MEENAKSHI SUNDARAM, ADVOCATE SR.NO.43058

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Crl.R.C.(MD)No.637 of 2013 01.08.2014

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AKV

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NA/14/08/2014/P6/7C

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

Saravana Priya v. Nambinarayanan

Case brief

What is this about?

What did the court decide?

Saravana Priya v. Nambinarayanan

Case brief

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What did the court decide?

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