Madras High Court
L.Karunakaran vs Kaveri on 15 December, 2021
Crl.R.C.No.443 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.12.2021
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.443 of 2016
L.Karunakaran
... Petitioner
Vs.
Kaveri
... Respondent
Criminal Revision filed under Sections 397 and 401 Cr.P.C praying to set
aside the judgment dated 27.01.2016 made in C.A.No.33 of 2014 on the file of
II Additional District and Sessions Judge, Vellore at Ranipet, in partly
allowing the Appeal by confirming the conviction but modifying the sentence
made in the Judgment dated 14.03.2014 made in C.C.No.282 of 2010 on the
file of Judicial Magistrate No.II, Walajapet.
For Petitioner : Mr.P.Dinesh Kumar
For Respondent : Mr.K.Velu
*****
ORDER
This Criminal Revision Case has been preferred challenging the
judgment of the learned II Additional District and Sessions Judge, Vellore at
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Crl.R.C.No.443 of 2016
Ranipet, Vellore District dated 27.01.2016 made in C.A.No.33 of 2014,
confirming the judgment of the learned Judicial Magistrate-II, Walajapet dated
14.03.2014 made in C.C.No.282 of 2010.
2. This case has arisen out of a private complaint given by the
respondent/complainant on the allegation that the cheque issued by the
revision petitioner/accused for a sum of Rs.10,00,000/- was dishonoured on
14.10.2010 for the reason of “Funds insufficient”. After having issued
mandatory legal notice and complying the legal mandates, the de facto
complainant preferred a private complaint for taking action against the
accused under Section 138 of Negotiable Instruments Act. Since the
petitioner/accused denied his involvement in the offence, trial was conducted.
3. During the course of the trial, on the side of the complainant, two
witnesses have been examined as PW1 and PW2 and 11 documents were
marked as Exs.P1 to P11. On the side of the defence, no witness was
examined and no document was marked.
4. At the conclusion of trial and on considering the materials available
on record, the learned trial Judge found the accused guilty for the offence
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Crl.R.C.No.443 of 2016
under Section 138 of Negotiable Instruments Act and directed him to pay a
sum of Rs.10,00,000/- to the complainant as compensation. Aggrieved over
that the accused has preferred an appeal in C.A.No.33 of 2014 before the
learned II Additional District and Sessions Judge, Vellore at Ranipet. While
confirming the finding of the trial Court, the learned Sessions Judge limited
the default sentence for non payment of compensation to six months.
Aggrieved over that the petitioner/accused has preferred this revision.
5. Heard the learned counsel for the revision petitioner and the learned
counsel for the respondent. Perused the entire materials available on record.
6. The learned counsel for the revision petitioner submitted that the
respondent/complainant has failed to prove her financial wherewithals to lend
a sum of Rs.10,00,000/- to the petitioner and she has also not shown any proof
to show that she has raised Rs.1,50,000/- for the purpose of redeeming the
jewels pledged through the petitioner. He has further submitted that Ex.P9
and P11 are inadmissible evidence and they have to be construed as
confession given before the police. By so stating, the learned counsel for the
petitioner submitted that the revision petition should be allowed.
7. The learned counsel for the respondent/complainant submitted that
the evidence available on record would show the liability of the petitioner and
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Crl.R.C.No.443 of 2016
the cheque was issued only for discharging the liability due to the petitioner.
The learned Trial Judge has rightly appreciated the evidence on record and
hence, this revision should be dismissed.
8. Point for consideration:-
Whether the punishment of the accused for the offence under
Section 138 NI Act by the learned Sessions Judge based on the
materials available on record is fair and proper?
9. The revision petitioner/accused and the respondent/complainant are
relatives. There is no dispute that the petitioner is the cousin brother of the
respondent/complainant. It is alleged by the respondent/complainant that in
order to meet out the treatment expenses of her mother, she gave her jewels
weighing 54 sovereigns to the petitioner/accused for pledging the same and
raise money. The accused gave Rs.1,50,000/- to the respondent/complainant
stating that they have pledged the jewels in a Bank at Kancheepuram. After
some time, the respondent/complainant arranged a sum of Rs.1,50,000/- and
gave it to the revision petitioner/accused and asked him to redeem the jewels.
Since the jewels were not redeemed and handed over to the
respondent/complainant, she was forced to give police complaint. However,
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Crl.R.C.No.443 of 2016
no case has been registered on the said complaint. On the complaint given by
the respondent, petition enquiry was conducted in CSR.No.316 of 2010 dated
17.08.2010 of Walajapet Police Station. At the end of the enquiry, the
petitioner has given an undertaking that he would redeem the jewels in the
month of August and thereafter, get back the amount due to him from the
complainant. As agreed, the petitioner did not redeem the jewels. Instead, he
had sent a notice to the complainant on 16.08.2010. The respondent has also
given a reply on 23.08.2010 and thereafter, the accused came to the house of
the respondent and gave her a cheque for a sum of Rs.10,00,000/- by way of
paying the value of her jewels. The subsequent facts about presenting the
cheque and its dishonour are an admitted facts.
10. The core contention of the learned counsel for the revision
petitioner is that Exs.P9 and P11 were got from the petitioner out of coercion
and they have to be considered as confession given before the police.
11. On perusal of Ex.P11, it is seen that it is the letter written by the
petitioner to the Sub Inspector of Police, Walajapet, in which the petitioner
has undertaken to redeem the jewels in the month of August and get back the
amount due to him from the complainant. The date of the said letter is
09.06.2010. First of all, no case was registered on the basis of the complaint
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Crl.R.C.No.443 of 2016
given by the respondent on 01.05.2010. It is seen from the endorsement of the
Sub Inspector of Police, Walajapet that CSR was given on 17.08.2010. That
would show that the police had conducted only petition enquiry and tried to
solve the matter. During that course, the petitioner executed Ex.P11-letter.
The letter is in the form of undertaking given by the petitioner and he had
agreed for subjecting himself for further action, if he did not honour his
promise. Since no case has been registered against the petitioner and no
investigation has also been done, the undertaking given by the petitioner vide
Ex.P11 cannot be construed as confession, much less a confession before the
police officer.
12. The next document, which was under attack by the revision
petitioner is Ex.P9 which is said to be a letter issued by the petitioner to the
respondent on 29.07.2011. The content of the letter would show that the issue
with regard to the pledging of the jewels has not been resolved between the
petitioner and the respondent. Hence, on 23.08.2010. the respondent had sent
a legal notice calling upon the petitioner to return her jewels weighing 55
sovereigns. In the said notice, the respondent has also warned that on the
failure of the petitioner to give back the jewels, she could be constrained to
take criminal action against him. The cheque in question was issued
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Crl.R.C.No.443 of 2016
subsequent to the notice dated 08.09.2010. And it was returned for “Want of
Funds”, so it is understandable from Ex.P9 that the parties once again tried to
settle the matter between themselves. In due course, the petitioner had once
again given an undertaking that he would get back the remaining jewels
within the short period and he had also given Rs.1,00,000/- to the respondent
on an agreement that the amount would be returnable to him once he returned
the jewels of the respondent. The learned counsel for the petitioner submitted
that Ex.P9 was also obtained from the petitioner due to coercion. But the said
fact was not substantiated with any other evidence on record.
13. The execution of a cheque was not denied and there is no denial
about the signature on the cheque. Hence, the holder of the cheque gets the
benefit of the initial presumption under Sections 118 and 139 of Negotiable
Instruments Act. The initial presumption however, is subject to rebuttal proof
if any offered by the accused. In the case on hand, the petitioner did not deny
his signature found on the impugned cheque. His only contention is that the
cheque was not issued for any consideration and there is no legally
enforceable debt attached to that. It is not the case of the
respondent/complainant that she had given a loan of Rs.10,00,000/- either in
hot cash or through Bank to the petitioner. Her definite case is that the
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Crl.R.C.No.443 of 2016
petitioner, who had failed to give back her jewels was subjected to various
enquires and then he had given a cheque for Rs.10,00,000/- in consideration
of the jewels which he bound to return to her. Even if a debt on the impugned
cheque is not proved, the liability attached to the cheque is satisfactorily
before the Court. And it is also proved that the liability attached to the cheque
is due to the earlier transaction with regard to the pledging of the jewels and
failure to return the jewels etc. Under such circumstances, the question of
proving the financial capacity of the petitioner does not arise. In view of the
above reasons, the preponderance of probability in favour of the respondent
remains intact. The petitioner/accused has got a reverse burden to rebut the
initial presumption.
14. The whole reading of the evidence available on this case would
show that the preponderance of probability never shifted in favour of the
petitioner/accused due to absence of rebuttal. Hence the initial presumption in
favour of the holder of the cheque evolved into conclusive proof. It has been
already observed that at any stretch Exs.P9 and P11 cannot be construed as
confession given before police or even a confession before anyone for that
matter. The Courts below have appreciated the evidence on record in a right
perspective and hence I find no reason for interference.
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Crl.R.C.No.443 of 2016
15. Accordingly, this Criminal Revision is dismissed. The judgment
dated 27.01.2016 made in C.A.No.33 of 2014 on the file of II Additional
District and Sessions Judge, Vellore at Ranipet is hereby confirmed.
15.12.2021
Index: Yes/No
Speaking / Non Speaking Order
kmi
To
1.The II Additional District and Sessions Judge,
Vellore at Ranipet,
2.The Judicial Magistrate No.II,
Walajapet .
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Crl.R.C.No.443 of 2016
R.N.MANJULA, J
kmi
Crl.R.C.No.443 of 2016
15.12.2021
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