D.Shanmugam vs Karpaga Vinayagar Dyeing Mills
2021 Latest Caselaw 3877 Mad

                                                                            CRL.R.C.No.1569 of 2013


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Dated : 16.02.2021

                                                    CORAM :

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

                                              Crl.R.C.No.1569 of 2013

                     D.Shanmugam
                     Proprietor – Weavers International
                     12, Velmurugan Complex
                     32, Nachiappa 1st Street
                     Erode-1
                     Erode Taluk                                        ... Petitioner
                                                          Vs.

                     Karpaga Vinayagar Dyeing Mills
                     A Partnership Firm
                     Represented by its Managing Partner
                     R.Kannappan
                     S/o.Ramasamy
                     S.F.456/7, Anthiyur Road
                     Pudhukadayampatti
                     Bhavani Taluk
                     Erode District                                     ... Respondent



                     Prayer: Revision petition filed under Section 397 r/w 401 of Cr.P.C. to
                     call set aside the order dated 07.10.2013 passed by the learned Principal
                     District and Sessions Judge, Erode in C.A.No.52/2013 confirming the
                     Judgment dated 01.07.2013 of the learned Judicial Magistrate No.2,
                     Erode in C.C.No.31 of 2008.

                     1/10
https://www.mhc.tn.gov.in/judis/
                                                                                CRL.R.C.No.1569 of 2013


                                   For Petitioner      : Mr.Stalin Abhimanyu
                                                         (Appointed by the Court to
                                                          represent the petitioner)

                                   For Respondent :     No appearance

                                                        ORDER

Since there is no representation for the petitioner continuously,

this Court appointed Mr.Stalin Abhimanyu, learned counsel to appear on

behalf of the petitioner and to assist the Court.

2.For the sake of convenience, the petitioner and the

respondent will be referred to as accused and complainant respectively.

3.The case of the complainant is that he is the Managing

Director of M/s.Karpaga Vinayagar Dyeing Mills, a Partnership Firm

and the accused is doing a textile business in the name and style of

“Weavers International”. The accused used to place orders for processing

the textile goods to the complainant. In the above transaction, the

accused had to pay the complainant to the tune of Rs.64,989/-. In order

to discharge his liability, the accused had issued a cheque dated

21.05.2007 for a sum of Rs.64,989/- (Ex.P1), drawn on IDBI Bank,

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Erode Branch. The complainant presented the said cheque on

26.05.2007 through his banker viz. ING Vysya Bank Limited, Erode

Branch and the said cheque was dishonoured with the endorsement

“Insufficient Funds”; When the same was intimated to the accused, the

accused asked him to deposit the cheque again for collection, thereby, the

complainant presented the cheque again on 22.09.2007, however, the

same was returned unpaid on 24.09.2007 with an endorsement

“insufficient funds” vide bank memo viz. Ex.P2. Therefore, the

complainant issued a statutory demand notice dated 30.09.2007 (Ex.P3),

which was received by the accused vide postal receipt dated 15.10.2007

(Ex.P4); the accused neither replied to the notice nor paid the cheque

amount as demanded by the complainant. Therefore, the complainant

initiated prosecution by way of private complaint in C.C.No.31 of 2008

before the Learned Judicial Magistrate No.2, Erode, for the offence under

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

Act) against the accused.

4.On appearance, the accused was questioned under Section

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

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

Ex.P1 to Ex.P7.

6.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 cheque issued by him came into the hands of the complainant.

During the cross examination, the accused denied the allegations and

stated that he is not liable to pay any amount to the complainant and

Ex.P1 viz. Cheque was given to the complainant only for the business

transaction as security and that he has paid the entire amount due to the

complainant directly by way of cash. The accused also stated that despite

the repeated request made by him for return of the cheque, the

complainant had not returned the cheque and in order to get undue

advantage had filed a false case against him. Other than these statements,

the accused had not marked any oral or documentary evidence to defend

his case.

7.After considering the evidence on record and hearing either

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side, the trial Court, by judgment and order dated 01.07.2013 in

C.C.No.31 of 2008 had found the accused guilty for the offence under

Section 138 of the Negotiable Instruments Act, 1881 and sentenced him

under Section 255(2) Cr.P.C. to undergo simple imprisonment for six

months and to pay a fine of Rs.1,000/- and in default to pay the fine

amount the accused is to undergo simple imprisonment for one month.

Against the said conviction and sentence, the accused had filed an appeal

in C.A.No.52 of 2013, which was dismissed by the learned Principal

District and Sessions Judge of Erode, District at Erode by Judgment and

order dated 07.10.2013. Aggrieved by the concurrent findings of the

Courts below, the accused has preferred the present criminal revision

case under Section 397 read with 401 Cr.P.C.

8.Heard Mr.Stalin Abhimanyu, learned counsel appearing for

the accused.

9.Learned counsel for the accused contended that when the

question has been put to the accused while cross examination, he

deposed that the amount has been paid to the complainant directly by

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cash and despite his repeated request, the complainant had not returned

the cheque handed over to him. However, he would submit that no reply

has been sent to the legal notice denying the demand and to prove that

the payment was made directly to the complainant by cash and the

cheque was not returned despite repeated requests.

10.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, (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. ....

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11.It is the case of the complainant that they are the partnership

firm and the accused is doing textile business in the name and style of

“Weavers International”. The accused used to place orders for processing

the textile goods and the complainant used to process the same. In the

above transaction, the accused had to pay the complainant a sum of

Rs.64,989/-. In order to discharge his liability, the accused had issued a

cheque dated 21.05.2007 for a sum of Rs.64,989/- (Ex.P1), drawn on

IDBI Bank, Erode Branch and the complainant presented the said cheque

on 26.05.2007 through his banker viz. ING Vysya Bank Limited, Erode

Branch and the said cheque was returned dishonoured with the

endorsement “Insufficient Funds”; The same was intimated to the

accused, during which the accused conveyed his inability to pay the

amount and assured him to deposit the amount when it is re-presented for

collection. The complainant again presented the cheque on 22.09.2007,

however, the same was returned unpaid on 24.09.2007 with an

endorsement “insufficient funds” vide bank memo viz. Ex.P2. Therefore,

the complainant issued a statutory demand notice dated 30.09.2007

(Ex.P3), which was received by the accused vide postal receipt dated

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15.10.2007 (Ex.P4); the accused neither replied to the notice nor paid the

cheque amount as demanded. Therefore, the complainant initiated

prosecution by way of private complaint in C.C.No.31 of 2008 before the

Learned Judicial Magistrate No.2, Erode, for the offence under Section

138 of the Negotiable Instruments Act, 1881. A presumption is cast

under Section 139 of the Negotiable Instruments Act, however the

presumption is rebuttable by the accused in this case. The accused in this

case had neither replied to the legal notice nor denied his signature in the

impugned cheque (Ex.P1) and no oral or documentary evidence had been

let in by the accused to prove his case. If the amount had been paid by

cash to the complainant directly, the accused should have replied to the

statutory notice received by him (Ex.P3), but he did not choose to give

any reply. It is the case of the accused that he had repaid the amount for

the processing work done by the complainant by cash, however, no

evidence has been let in by the accused to prove his case and rebut the

presumption. Whereas the complainant has proved his case by letting in

cogent evidence.

12.In APS Forex Services Private Limited vs. Shakti

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International Fashion Linkers and Others reported in (2020) SCC

Online SC 193, the Hon'ble Apex Court has held that Section 139 of the

N.I. Act is an example of reverse onus clause and once the issuance of

cheque has been admitted and the signature on the cheque has been

admitted, there is always presumption in favour of the complainant as to

the existence of a legally enforcible debt or liability and thereafter it is

for the accused to rebut such presumption by leading evidence.

13.In this case, as stated above, the complainant has proved his

case by letting in cogent evidence, whereas, the accused has not rebutted

such presumption by leading evidence and thereby the Trial Court as

well as the Appellate Court found the accused guilty for the offence

under Section 138 of Negotiable Instruments Act. Hence, this Court finds

no infirmity or illegality in the judgments of the Courts below.

14.In the result, this Criminal Revision case stands dismissed

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

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

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

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

original records if any, to the respective Courts forthwith.

A.D.JAGADISH CHANDIRA, J.

kas

15.This Court appreciates the assistance rendered by Mr.Stalin

Abhimanyu.

16.02.2021 kas

To

1.The Principal District and Sessions Judge Erode

2.The Judicial Magistrate No.2 Erode

3.The Deputy Registrar Criminal Side High Court, Madras

CRLR.C.No.1569 of 2013

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