T K THIRUVENGADAM Vs. NACHI EXPORTS

JUDGEMENT

(1.) THE revision petitioners are A1 and A2 in C. C. No. 4851 of 1996 on the file of XVIII Metropolitan Magistrate Court , Saidapet , Chennai -15. THEy were found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act imposing fine of rs. 5 ,000 /- to the first accused payable by the second accused, in default to undergo three months simple imprisonment and convicting and sentencing the second accused to undergo one year simple imprisonment. It is further directed to pay a sum of Rs. 11 ,00,000 /- as compensation to the de facto complainant, as per the judgment dated 07. 08. 2003. In Crl. A. No. 262 of 2003 on the file of III Additional Sessions Court, Chennai, the above conviction and sentence were confirmed setting aside the order of compensation of Rs. 11,00,000/-, as per the judgment dated 29. 1. 2004.

(2.) THE case of the complainant/respondent is that they are carrying on business in exporting cashew kernels and they used to place orders against the export orders on local manufacturing and processing companies for the same. One such company is the first accused. THE complainant used to give advance payment for procurement and processing of cashew nut by way of demand draft in the course of business. During such course of business, the revision petitioners, who are A1 and A2 got orders from the complainant for procurement and processing of cashew nut, for which the complainant had advanced rs. 14 lakhs , of which Rs. 10 lakhs had been given to the first accused by way of demand draft bearing No. 012771 dated 5. 2. 96. THE first accused was unable to procure and process the required raw nuts at Panruti in time to the complainant, during this transaction and so the second accused, being a partner, had issueda cheque in favour of the complainant bearing no. 433203 dated 25. 3. 1996 for Rs. 10 lakhs. THE complainant had presented the cheque in the bank on 31. 3. 1996 and the same was dishonoured due to insufficiency of funds and the same was intimated to the complainant by its bank on 19. 4. 1996. THEn, the second accused requested the complainant to present the cheque once again in the end of June and when the cheque was presented, it was dishonoured due to insufficiency of funds. After the repeated dishonoured of cheque , the complainant had sent a registered lawyer's notice dated 9. 7. 1996 to the accused. But the accused had not made payment. Hence, the complainant herein has filed a private complaint against the accused for an alleged offence under Section 138 of the Negotiable instruments Act.

(3.) LEARNED counsel for the revision petitioners/a1 and A2 mainly argued that a Civil Suit in C. S. No. 200 of 1999 has been filed by the de facto complainant against A1 and A2 and others to recover the amount of rs. 14,00,000/- towards non-supply of cashew nuts. The second accused issued a cheque bearing No. 433203 dated 25. 3. 1996 for Rs. 10 ,00,000 /- and the cheque was dishonoured when presented in the bank. This Court inc. S. No. 200 of 1999 held that the amount payable is only Rs. 8,10,000/- after giving credit to the tune of Rs. 5,10,000/- towards the supply of cashew nut kernels by the first revision petitioner to the respondent. Apart from that, the first revision petitioner through Ex. D-5 has supplied 150 Tins of Cashew nuts Kernels and taking the value fixed by this Court in C. S. No. 200 of 1999, the value of 150 Tins works out to Rs. 3,00,000/ -. The respondent has further realized a sum of Rs. 3 ,01,000 /- from the revision petitioners by way of execution proceedings in E. P. No. 45 of 2001 and a sum of rs. 2,00,000/- by sale of two properties of the petitioners at Panturi in E. P. No. 30 of 2004. Thus, the said amount paid by them would come to Rs. 13 ,11,000 /-, which is more than the cheque amount of Ex. P-4. Therefore, the revision petitioners prayed that in view of the payments made by the revision petitioners, this Court may take lenient view in imposing punishment to A1 and a2.