Madras High Court
A.Sabarinathan vs G.Balakrishnan on 24 November, 2021
Crl.R.C.No.617 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.11.2021
CORAM :
THE HONOURABLE MS. JUSTICE R.N.MANJULA
Crl.R.C.No.617 of 2016
A.Sabarinathan .. Petitioner
Vs.
G.Balakrishnan .. Respondent
PRAYER : Criminal Revision has been filed under sections 397 read
with 401 of Criminal Procedure Code to set aside the conviction imposed
in the judgment dated 28.01.2016 made in C.A.No.30 of 2015 on the file
of the Principal Sessions Court, Namakkal, confirming the judgment dated
19.06.2015 made in S.T.C.No.62 of 2014 on the file of the learned Judicial
Magistrate, Fast Track Court, Tiruchegode.
For Petitioner : Mr.N.Manokaran
For Respondent : Mr.E.C.Ramesh
ORDER
This Criminal Revision Case has been preferred challenging
the judgment of the Principal Sessions Court, Namakkal dated 19.06.2015
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Crl.R.C.No.617 of 2016
made in C.A.No.30 of 2015, confirming the judgment dated 19.06.2015 on
the file of the learned Judicial Magistrate, Fast Track Court made in
S.T.C.No.66 of 2014.
2. This case has arisen out of an alleged cheque transaction
between the petitioner and the respondent. The respondent has filed a
private complaint under Section 138 of N.I.Act against the respondent on
the allegations that on 16.11.2013 the petitioner had availed a loan of
Rs.7,00,000/- from him and assured to repay the same within one month.
On the same day itself he gave a post dated cheque dated 16.12.2013
drawn on HDFC bank, Tiruchengode. The respondent put the cheque for
collection through his Canara bank, Tiruchengode branch and the cheque
was returned on 13.01.2014 for the reason that there was no sufficient
funds on the account of the petitioner. After issuing the statutory notice
and after complying the legal mandates, the respondent has filed a private
complaint against the accused under Section 138 of N.I.Act. During the
course of trial on the side of the complaint, 2 witnesses were examined as
PW.1 and PW.2 and Exhibits P1 to P14 were marked. On the side of the
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accused, the accused himself got examined as DW.1 and Ex.D1 is marked.
3. After considering the materials on records, the learned trial
Judge has found the accused guilty under Section 138 N.I.Act and
convicted and sentenced him to undergo S.I for 18 months and imposed a
fine of Rs.10,000/- ; in default to undergo 4 months S.I. Aggrieved over
that the accused has preferred an appeal before the Principal Sessions
Court, Namakkal in C.A.No.30 of 2014. The said appeal was also
dismissed by confirming the judgment of the trial Court. Now this Criminal
Revision case has been filed by the petitioner/accused challenging the
judgment passed in C.A.No.30 of 2014.
4. Heard the learned counsel for the petitioner and the learned
counsel for the respondent
5. Points for Cosideration:-
The learned counsel for the petitioner submitted that the
respondent/complainant did not have any financial wherewithals to give a
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Crl.R.C.No.617 of 2016
loan of Rs.7,00,000/- to the accused and hence the cheque was not issued
for legally enforceable debt. The learned counsel for the petitioner further
submitted that the connected case filed on the same day against the
respondent on the basis of the cheque given for a value of Rs.8,00,000/-
by the accused was dismissed on the ground that the
respondent/complainant did not prove his means successfully before the
Court and hence this case should have also been dismissed.
6. The relationship between the accused and the complainant
is not in dispute. The complainant is said to be the maternal uncle of the
petitioner. The petitioner did not deny the execution of the impugned
cheque. His only contention is that the cheque was not given to the
respondent for discharge of any legally enforceable debt. But he had given
the cheque by way of security to one Prema and the same cheque was
misused by the respondent for the purpose of filing the case against him.
The next submission of the petitioner/accused is that the respondent did
not have means to lend a heavy amount of Rs.7,00,000/- as loan to him.
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7. The respondent has alleged that the said amount of
Rs.7,00,000/- was generated by him by selling his property, from and out
of his retirement benefits, by pledging jewels in the name of the accused
and his wife. The attention of this Court was drawn to the evidence of
PW.1 wherin he has stated that he had got retirement benefit on
31.08.2011 and it was to the tune of Rs.7,00,000/-. The
respondent/complainant was working as a staff in TNSTC and he retired
from service on 31.08.2011. According to his evidence he got the
retirement amount within 10 months of his retirement. If so, he ought to
have got the amount during June 2012, but the transaction in question
relates to the year 2013 only.
8. The learned counsel for the petitioner produced the account
statement of the respondent to show that he did not have an outstanding of
Rs.7,00,000/- between the period from 31.08.2011 to 07.1.2014. From the
statement of accounts, it is seen that the respondent had held only a paltry
sum of Rs.473/- as the outstanding. The receipts for pledging the receipts
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Crl.R.C.No.617 of 2016
have been produced as Ex.P.8, Ex.P9, Ex.P.11 and Ex.P12 and they would
show that the total amount involved in those receipts are Rs.3,00,000/-
only. Out of these Ex.P8 and Ex.P10 stand in the names of the wife of the
accused Sumathi and they are dated 03.01.2013 and 06.12.2013. Another
receipt dated 15.01.2013 stands in the name of the accused and it is for
Rs.67,000/-. The dates of these receipts have got no relevance to the date
of the transaction between the petitioner and the respondent and the
impugned cheques. Even if it is presumed that the respondent had arranged
finance through some other sources and later raised the money by pledging
it through Ex.P.11 and Ex.P.12, the total sum comes to Rs1,54,000/- only.
Further, it is difficult to believe that the wife of the accused and accused
themselves have consented to pledge the jewels to raise money and then
give it to the respondent for the purpose of getting it as loan from him. If
the respondent claims that the jewels which were pledged in the name of
the accused and his wife were belonging to him, then also it is difficult to
understand why he had chosen to pledge them in the names of the accused
and his wife. Apart from PW.1 no other independent witness has been
examined to substantiate the manner in which the respondent had raised
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Crl.R.C.No.617 of 2016
the sum of Rs.7,00,000/-.
9. The respondent was working as a driver in TNSTC and he
did not have any other source of income. He has not received 7,00,000/-
as retirement benefits and no such entries are found to be made in his bank
account during the relevant period.
10. The Courts below have chosen to give the benefit of
sec.139 of N.I.Act in favour of the respondent. The petitioner/accused did
not deny the execution of cheque. Hence as per Section 139 of N.I.Act, it
has to be presumed that the cheque was issued only towards discharging a
legally enforceable debt and the holder of the cheque has got the right to
recover it from the executor. However, the said presumption is subject to
rebuttal evidence that might be given by the accused in order to prove the
contrary. The accused had examined as DW.1 and he reiterated in his
evidence that he had given the cheques to one Prema by way of security
for the chit amount and that has been misused by the
respondent/complainant. It has been already observed that the
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respondent/complainant has not proved his source for Rs.7,00,000/-.
11. The improbabilities and unrealistic circumstances existing
in the evidence of the respondent/complainant can also serve as the
preponderance of probabilities of the defence statement for the purpose of
rebuttal proof. The learned counsel for the petitioner relied on the
judgment of the Hon'ble Supreme Court rendered in Basalingappa -vs-
Mudibasappa reported in 2019 (5) SCC 418 in support of the above legal
point. In the said judgement it is held as under:-
“13. This Court in Bharat Barrel & Drum Mfg. Co. v.
Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand
Payrelal, (1999) 3 SCC 35] had occasion to consider Section 118(a) of
the Act. This Court held that once execution of the promissory note is
admitted, the presumption under Section 118(a) would arise that it is
supported by a consideration. Such a presumption is rebuttable and
defendant can prove the non-existence of a consideration by raising a
probable defence. In para 12, the following has been laid down : (SCC
pp. 50-51)
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“12. Upon consideration of various
judgments as noted hereinabove, the
position of law which emerges is that
once execution of the promissory note is
admitted, the presumption under Section
118(a) would arise that it is supported
by a consideration. Such a presumption
is rebuttable. The defendant can prove
the non-existence of a consideration by
raising a probable defence. If the
defendant is proved to have discharged
the initial onus of proof showing that the
existence of consideration was
improbable or doubtful or the same was
illegal, the onus would shift to the
plaintiff who will be obliged to prove it
as a matter of fact and upon his failure to
prove would disentitle him to the grant
of relief on the basis of the negotiable
instrument. The burden upon the
defendant of proving the non-existence
of the consideration can be either direct
or by bringing on record the
preponderance of probabilities by
reference to the circumstances upon
which he relies. In such an event, the
plaintiff is entitled under law to rely
upon all the evidence led in the case
including that of the plaintiff as well. In
case, where the defendant fails to
discharge the initial onus of proof by
showing the non-existence of the
consideration, the plaintiff would
invariably be held entitled to the benefit
of presumption arising under Section
118(a) in his favour. The court may not
insist upon the defendant to disprove the
existence of consideration by leading
direct evidence as the existence of
negative evidence is neither possible nor
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contemplated and even if led, is to be
seen with a doubt. The bare denial of the
passing of the consideration apparently
does not appear to be any defence.
Something which is probable has to be
brought on record for getting the benefit
of shifting the onus of proving to the
plaintiff. To disprove the presumption,
the defendant has to bring on record
such facts and circumstances upon
consideration of which the court may
either believe that the consideration did
not exist or its non-existence was so
probable that a prudent man would,
under the circumstances of the case,
shall act upon the plea that it did not
exist.”
14. S.B. Sinha, J. in M.S. Narayana Menon
v. State of Kerala [M.S. Narayana Menon v. State of
Kerala, (2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30]
had considered Sections 118(a), 138 and 139 of the
Act, 1881. It was held that presumptions both under
Sections 118(a) and 139 are rebuttable in nature.
Explaining the expressions “may presume” and
“shall presume” referring to an earlier judgment, the
following was held in para 28 : (SCC p. 49)
“28. What would be the effect of
the expressions “may presume”, “shall
presume” and “conclusive proof” has
been considered by this Court in Union
of India v. Pramod Gupta [Union of
India v. Pramod Gupta, (2005) 12 SCC
1] , in the following terms : (SCC pp.
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30-31, para 52)
‘52.…It is true that the legislature used two
different phraseologies “shall be presumed” and
“may be presumed” in Section 42 of the Punjab
Land Revenue Act and furthermore although
provided for the mode and manner of rebuttal of
such presumption as regards the right to mines and
minerals said to be vested in the Government vis-à-
vis the absence thereof in relation to the lands
presumed to be retained by the landowners but the
same would not mean that the words “shall
presume” would be conclusive. The meaning of the
expressions “may presume” and “shall presume”
have been explained in Section 4 of the Evidence
Act, 1872, from a perusal whereof it would be
evident that whenever it is directed that the court
shall presume a fact it shall regard such fact as
proved unless disproved. In terms of the said
provision, thus, the expression “shall presume”
cannot be held to be synonymous with “conclusive
proof”.’ ”
15. It was noted in M.S. Narayana Menon
case [M.S. Narayana Menon v. State of Kerala,
(2006) 6 SCC 39 : (2006) 3 SCC (Cri) 30] , that the
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expression “shall presume” cannot be held to be
synonymous with conclusive proof. Referring to
definition of words “proved” and “disproved” under
Section 3 of the Evidence Act, 1872 the following
was laid down in para 30 : (SCC p. 50)
“30. Applying the said definitions of
“proved” or “disproved” to the principle
behind Section 118(a) of the Act, the
court shall presume a negotiable
instrument to be for consideration unless
and until after considering the matter
before it, it either believes that the
consideration does not exist or considers
the non-existence of the consideration so
probable that a prudent man ought,
under the circumstances of the particular
case, to act upon the supposition that the
consideration does not exist. For
rebutting such presumption, what is
needed is to raise a probable defence.
Even for the said purpose, the evidence
adduced on behalf of the complainant
could be relied upon.”
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20. A three-Judge Bench of this Court
in Rangappa v. Sri Mohan [Rangappa v. Sri Mohan,
(2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 :
(2011) 1 SCC (Cri) 184] had occasion to
elaborately consider the provisions of Sections 138
and 139. In the above case, the trial court had
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acquitted the accused in a case relating to dishonour
of cheque under Section 138. The High Court had
reversed [Mohan v. Rangappa, 2005 SCC OnLine
Kar 783] the judgment of the trial court convicting
the accused. In the above case, the accused had
admitted signatures on the cheque. This Court held
that where the fact of signature on the cheque is
acknowledged, a presumption has to be raised that
the cheque pertained to a legally enforceable debt
or liability, however, this presumption is of a
rebuttal nature and the onus is then on the accused
to raise a probable defence. In para 13, the
following has been laid down : (SCC p. 446)
“13. The High Court in its order
[Mohan v. Rangappa, 2005 SCC OnLine Kar 783]
noted that in the course of the trial proceedings, the
accused had admitted that the signature on the
impugned cheque (No. 0886322 dated 8-2-2001)
was indeed his own. Once this fact has been
acknowledged, Section 139 of the Act mandates a
presumption that the cheque pertained to a legally
enforceable debt or liability. This presumption is of
a rebuttal nature and the onus is then on the accused
to raise a probable defence. With regard to the
present facts, the High Court found that the defence
raised by the accused was not probable.”
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12. Hence the omission on the part of the
respondent/complainant to prove the source for Rs.7,00,000/- can also
serve as a probable circumstance in favour of the petitioner/accused and
shift the preponderance in his favour. The Courts below omitted to
appreciate the above position of law in a proper perspective and concluded
the case by convicting the accused and hence it warrants interference.
13. In the result, the criminal revision case is allowed. The
judgment of the Courts below is set aside.
24.11.2021
(R.N.M.J)
rpl
To
1. The Principal Sessions Court, Namakkal.
2.Judicial Magistrate, Fast Track Court, Tiruchegode.
R.N. MANJULA, J.
rpl
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Crl.R.C.No.617 of 2016
Crl.R.C.No.617 of 2016
24.11.2021
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