V.Palanivel vs Anilkumar
2021 Latest Caselaw 2113 Mad

                                                                                   CRL.R.C.No.1461 of 2013


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       Dated : 01.02.2021

                                                           CORAM :

                           THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                     Crl.R.C.No.1461 of 2013

                     V.Palanivel
                     S/o.Varadarajan                                           ... Petitioner

                                                              Vs.

                     Anilkumar
                     S/o.Manoharlal                                            ... Respondent


                     Prayer: Revision petition filed under Section 397 r/w 401 of Cr.P.C. to
                     call for the records relating to the Judgment dated 13.11.2006 on the file
                     of the learned Judicial Magistrate No.1, Salem in C.C.No.424 of 2004 as
                     confirmed by the learned I Additional Sessions Judge, Salem by the
                     Judgment in Criminal Appeal No.144 of 2006 dated 21.08.2007 and set
                     aside the same.

                                    For Petitioner        : Mr.S.Rajendra Kumar
                                                            (Appointed by the Court to
                                                             represent the petitioner)

                                    For Respondent :       Mr.Kalyanaraman




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https://www.mhc.tn.gov.in/judis/
                                                                              CRL.R.C.No.1461 of 2013


                                                       ORDER

(The case has been heard through video conference) For the sake of convenience, the petitioner and the respondent

will be referred to as accused and complainant respectively.

2.It is the case of the complainant that on 20.10.2033, the

accused borrowed a sum of Rs.1,25,000/-, towards repayment of which,

the accused gave four post dated cheques, dated 20.12.2003 for

Rs.50,000/- (Ex.P1), and three post dated cheques for Rs.25,000/- each

dated 30.12.2003, 10.01.2004, 20.01.2004 respectively (Ex.P2 to Ex.P4),

drawn on Indian Overseas Bank, Salem; the complainant presented the

said four cheques on 21.01.2004 in Indian Bank, Salem-1 Branch, where

he was having his account; the said cheques were returned unpaid with

the endorsement funds insufficient vide bank memo dated 21.01.2004

(Ex.P5 to Ex.P8); the complainant issued a statutory demand notice dated

29.01.2004 (Ex.P10), which was received by the accused vide

acknowledgment card dated 31.01.2004 (Ex.P11); the accused did not

give any reply nor comply with the demand. Therefore, the complainant

initiated prosecution by way of private complaint in C.C.No.424 of 2004

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before the Learned Judicial Magistrate, Salem for the offence under

Section 138 of the Negotiable Instruments Act, 1881 (for brevity the NI

Act) against the accused.

3.On appearance, the accused was questioned under Section

251 Cr.P.C. and he denied the accusation.

4.The complainant examined himself as P.W.1. and marked

Ex.P1 to Ex.P11.

5.When the accused was questioned under Section 313 Cr.P.C.

on the incriminating circumstances appearing against him, he denied the

same and did not offer any explanation as to the circumstances under

which, the cheques issued by him came into the hands of the

complainant. However, he examined himself as D.W.1 and stated that,

the accused had business dealings with the complainant and that the

blank cheques which have been given as security during the course of

business transactions were misused by the complainant and that the had

not borrowed any amounts from the complainant and he had marked

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Ex.D1 to D6 invoice slips to prove there was business dealings.

6.The accused also examined one Kandasamy, as D.W.2, in

order to show that there was a business dealing between the accused and

the complainant. D.W.2, who is the cycle rickshaw rider had deposed that

he used to the business premises of the complainant and the accused for

the purpose of loading and unloading the steel sheets and that he was not

aware of anything about the loan transactions between the parties.

7.After considering the evidence on record and hearing either

side, the trial Court, by judgment and order dated 13.11.2006 in

C.C.No.424 of 2004, convicted the accused of the offence under Section

138 of the NI Act and sentenced him to undergo one year simple

imprisonment and the accused was also directed to pay a compensation

of Rs.1,25,000/- to the complainant, within a period of two months. The

appeal in Crl.A.No.144 of 2006 that was filed by the accused was

dismissed by the learned I Additional Sessions Judge, Salem on

21.08.2007. Aggrieved by the concurrent findings of the two Courts

below, the accused has preferred the present criminal revision under

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Section 397 read with 401 Cr.P.C.

8.Heard Mr.S.Rajendra Kumar, learned counsel appearing for

the accused and Mr.S.Kalyanaraman, learned counsel appearing for the

complainant.

9.Learned counsel for the accused contended that the accused

has discharged his burden under Section 139 of the NI Act satisfactorily

by examining himself and D.W.2 to prove that there was business dealing

between him and the complainant and that the cheques were handed over

to the complainant as security in the course of business and the cheques

which were handed over to the complainant during the course of business

had been misused by the complainant. The Courts below have not

properly analysed the evidence with regard to the same.

10.Per contra, learned counsel for the complainant would

submit that the stand of the complainant is that though there was a

business transaction between the complainant and the accused, the

cheques were handed over in respect of a personal loan taken by the

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accused from the complainant. Further, the Courts below have taking

into consideration of the evidence, had categorically held that if at all the

amounts could have been repaid by the accused, he would have replied to

the legal notice and also taken steps to retrieve the cheques which were

in the custody of the complainant. Having not done so, the Courts below

had not accepted the submissions of the accused and no other material

has been produced to prove that the amount was repaid to the

complainant and the Courts below have rightly convicted the accused.

11.Before adverting to the rival submissions, it may be

necessary to state here that while exercising Revisional jurisdiction in a

case involving concurrent findings of fact arrived at by two Courts

below, the High Court cannot act as a second appellate Court [See State

of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others,

etc. (2004) 7 SCC 659]. Very recently, in Bir Singh Vs. Mukesh Kumar

[(2019) 4 SCC 197], the Supreme Court has held as under:

“17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH,

https://www.mhc.tn.gov.in/judis/ CRL.R.C.No.1461 of 2013

(2008) 14 SCC 457], it is a well established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. ....

(emphasis supplied)

12.The accused has not denied his signature in the impugned

cheques (Ex.P1 to Ex.P4). This Court perused the original cheques

(Ex.P1 to Ex.P4) and did not find any suspicious feature in it. The

defence of the accused is that the impugned cheques were given only for

the business dealings, which have been misused by the complainant. The

accused received the statutory demand notice (Ex.P10), but did not

choose to give any reply. It is the case of the accused that he had issued

the cheques (Ex.P1 to Ex.P4) to the complainant on 20.12.2003,

31.12.2003, 10.01.2004, 20.01.2004 respectively for the business

dealings.

13.It is the case of the complainant that the accused was

manufacturing bureau and the complainant was carrying on business in

the name and style of “Krishna Steels' and supplying steel for the

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manufacturing of bureau and that there was a business transaction

between both of them upto 2002, and that he was also doing finance

business and that he had given a personal loan to the accused and that

there was a due of Rs.1 Lakh, since the complainant insisted the accused

to give cheques, the accused had issued four post dated blank cheques

(Ex.P1 to P4) to the complainant, for the purpose of security for the

above said due. On the side of the accused Ex.D1 to Ex.D6 were marked,

to show that there was a transaction between the accused and the

complainant and there was business dues and during the 5th month of

2002 the above said due of Rs.1 Lakh was repaid to the complainant.

However, it is the case of the complainant that Ex.P1 to Ex.P4 were

given purely for the purpose of borrowal of personal loan of

Rs.1,25,000/- by accused on 20.10.2003 and the accused agreed to repay

along with interest. Ex.D1 to D6 series are only quotations given by the

complainant to the accused during the business transaction and those

documents have nothing to do with the borrowal of the above said loan

of Rs.1,25,000/-. Assuming for a moment that the accused had given a

blank but signed cheques to the complainant, he would have taken steps

to get back the cheques, when the cheques issued by him were

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dishonoured. The accused would have atleast issued stop payment

instructions to the banker, which was not done. Even in the 313 Cr.P.C.

statement, the accused did not take this plea.

14.The accused had examined one Kandasami (D.W.2), who is

a cycle rickshaw rider, who had deposed that he would go to the business

premises just for the purpose of loading and unloading the steel sheets

and he was not aware of any loan transactions between the parties. The

accused should have declared this witness hostile. But, strangely that

was not done. Though the accused can discharge the burden under

Section 139 of the NI Act by preponderance of probability as held by the

Supreme Court in Rangappa Vs Sri Mohan [2010 (4) CTC 118], even

that has not been done in this case. Therefore, this Court does not find

any infirmity or illegality in the findings of fact arrived at by the two

Courts below, warranting interference.

15.In the result, this Criminal Revision is dismissed as being

devoid of merits. The conviction and sentence imposed by the Trial

Court, which is confirmed by the Appellate Court stands unaltered. The

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A.D.JAGADISH CHANDIRA, J.

kas

Trial Court is hereby directed to secure the accused and commit him to

prison to undergo sentence. The Registry is directed to transmit the

original records if any, to the respective Courts forthwith.

01.02.2021 kas

Index : yes / no Internet : yes / no Speaking/ Non speaking order

To

1.The Judicial Magistrate No.1 Salem

2.The I Additional Sessions Judge Salem

3.The Deputy Registrar Criminal Side High Court, Madras

CRLR.C.No.1461 of 2013

https://www.mhc.tn.gov.in/judis/