P.Selvaraj vs P.M.Palanisamy
2021 Latest Caselaw 19334 Mad

                                                        Crl.R.C.No.1164 of 2016

        IN THE HIGH COURT OF JUDICATURE AT MADRAS

                          DATED : 22.09.2021
                               CORAM:

       THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                        Crl.R.C.No.1164 of 2016

P.Selvaraj                                  ... Petitioner/Accused

                                   Vs.

P.M.Palanisamy                              ... Respondent/Complainant

PRAYER: This Criminal Revision Case has been filed under Section
397 & 401 of Cr.P.C., seeking to call for the records in C.A.No.54 of
2014, dated 05.11.2014 on the file of the learned Principal Sessions
Judge, Namakkal confirming the Judgment passed by the Judicial
Magistrate [Fast Track Court], Tiruchengode, in S.T.C.No.294 of 2012
dated 26.06.2014 to undergo 6 months of simple imprisonment and to
pay compensation a sum of Rs.1,25,000/- to the complainant for the
offence U/s.138 of N.I.Act and to set aside the same.


             For Petitioner     : Mr.S.Viswanathan
                                  For M/s.Dass and Viswa Associates

             For Respondent     : M/s.V.Valarmathi,
                                  Legal Aid Counsel




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                                                        Crl.R.C.No.1164 of 2016




                               ORDER

(This case has been heard through video conference)

The convicted accused is the revision petitioner herein.

2.The respondent herein/complainant has filed a private

complainant under Section 200 of Cr.P.C for the offence under Section

138 of the Negotiable Instruments Act in STC.No. 294 of 2012, before

the learned Judicial Magistrate, Fast Track Court, (Magisterial Level),

Tiruchengode, alleging that on 25.01.2005, the accused has borrowed a

sum of Rs.1,25,000/- from the respondent herein/complainant and to

discharge the liability the revision petitioner herein/accused had issued a

cheque drawn on “The Dhanalakshmi Bank Ltd, Erode Branch, cheque

bearing No.8002624, dated 25.02.2005 for a sum of Rs.1,25,000/-, which

was marked as Ex.P1, in favour of the respondent herein/complainant.

Thereafter, the complainant presented the said cheque for encashment

through the “Corporation Bank” Pallipalayam Branch, on 24.08.2005

and the same was dishonoured as “Insufficient Funds” in the account of

the revision petitioner herein/accused. Thereafter, the respondent

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herein/complainant on 19.09.2005 has issued a statutory notice to the

accused through his counsel and the said notice was returned to counsel

with an endorsement of 'Refused returned to sender'. Hence, the

complaint.

3.During the course of the trial, on behalf of the respondent

herein/complainant one Palanisamy was examined as PW1 and marked

Exs.P1 to P4; on behalf of the defence/accused, one Selvaraj was

examined as DW1 and marked Ex.D1.

4.The learned counsel for the revision petitioner/accused,

before the Trial Court has contended that the accused has not borrowed

any amount from the complainant at any point of time and the cheque

was not issued by him for any legally enforceable debt as alleged and the

signature in Ex.P1/cheques was not the signature of the accused and

there is no legally recoverable debt and hence, the complaint is not

maintainable.

5.After perusing the materials placed on record, the learned

Crl.R.C.No.1164 of 2016

Judicial Magistrate, Fast Track Court, (Magisterial Level), Tiruchengode,

has convicted the revision petitioner herein/accused for the offence under

Section 138 of the Negotiable Instruments Act and sentenced him to

undergo six months simple imprisonment and to pay compensation of

Rs.1,25,000/-. Aggrieved against the same, the revision petitioner

herein/accused has preferred a Criminal Appeal No.54 of 2014, before

the learned Principal Sessions Judge, Namakkal and by an order date

19.07.2016, the learned Judge has dismissed the said appeal and

confirmed the conviction and sentence passed by the learned Judicial

Magistrate(FTC) Tiruchengode, in STC.No.294 of 2012. Hence, the

present Criminal Revision Case has been preferred by the accused.

6.Heard both the learned counsels and perused the materials

placed on record.

7.The learned counsel for the respondent herein/complainant

would contend that the accused/revision petitioner herein had borrowed a

loan amount of Rs.1,25,000/- from the complainant and for the

repayment of the said loan the revision petitioner herein/accused had

Crl.R.C.No.1164 of 2016

issued Ex.P1/cheuqe in favour of the complainant to discharge the legally

enforceable pre-existing debt.

8.Whileso, the learned counsel for the revision petitioner

herein/accused would contend that the signature in Ex.P1/cheque is not

at all the signature of the accused and he has not borrowed any amount as

alleged by the complainant and the cheque was not issued by him to the

respondent herein/complainant.

9.The learned counsel for the revision petitioner/accused

would contend that there is no dispute with regard to the fact that

Ex.P1/cheque herein is the cheque supplied by the bank to the revision

petitioner herein/accused in respect of his account maintained with

banker. While so, the signature found in Ex.P1/cheque was not admitted

by the accused and he has not borrowed any amount as alleged by the

respondent herein/complainant and the cheque was not issued by the

accused to the complainant and no communication was passed from the

respondent herein/complainant to the accused with respect to the case

cheque. Both the Courts below have held that the accused has not

Crl.R.C.No.1164 of 2016

explained how the cheque was gone into the hands of the complainant.

10.The complainant immediately after the dishonor of the case

cheque, has issued the statutory notice/ Ex.P6 and it was returned with an

endorsement “Refused returned to sender”, as evidence by Ex.P4.

11.The learned counsel appearing for the revision petitioner

herein/accused would contend that the statutory notice was not served on

the accused and hence, the complaint is not maintainable. On a perusal

of Ex.P3 & Ex.P4, it is clear that the complainant after the dishonour of

the case cheque, the complainant has issued Ex.P3/statutory notice and it

was returned with an endorsement “refused returned to sender”.

12..In Kanju Viswanadhan Vs. Ramakrishnan Surendran 1998

Crl. LJ 3553 (Ker), it has been held that

“Where undelivered registered notice sent on behalf of the complainant to the drawer bears the endorsement ‘refused’ by the drawer, made by the postal authorities, the presumption under Section 27 of the General Clauses Act as well as Section 114 of

Crl.R.C.No.1164 of 2016

the Evidence Act are available in favour of the complainant but the knowledge of notice can be imputed on addressee from the date of refusal and not from the date of dispatch of the notice”.

13.A perusal of Ex.P3/statutory notice, the number and the date

of the cheque, name of the bank in which it was drawn, have been clearly

disclosed and specific demand was made for the payment of the cheque

amount.

14.Further, the learned counsel for the revision petitioner

herein/accused would contend that the statutory notice has not contained

all particulars regarding transaction and the accused has not at all

received the statutory notice but refused and returned to sender.

15.In (2007) 2 MLJ (Crl) 248 (SC) Rationes Decidendi laid

down by the Larger Bench the Hon’ble Apex Court is as below:-

“In view of the presumption available under

Section 27 of the General Clauses Act, it is not necessary to aver in the complaint under section 138 of the NI Act that service of notice was evaded by the

Crl.R.C.No.1164 of 2016

accused or that the accused had a role to play in the return of the notice unserved.” “When the notice is sent by registered post by

correctly addressing the drawer of the cheques, the mandatory requirement of issue of notice to terms of clause (b) of proviso to section 138 of the N.I. Act stands complied with.” “A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under section 138 of N.I. Act cannot contend that there was no proper service of notice as required under section 138 of the Act, by ignoring statutory presumption to the contrary under section 27 of the General Clauses Act and section 114 of the Evidence Act”.

16.The case of the revision petitioner/accused is that on

08.08.2005, he has preferred insolvency petition under Sections 7 & 10

of the Provincials of the Insolvency Act, in I.P.No.9 of 2005, wherein, he

has disclosed all the dates and since, he has not borrowed any amount

from the complainant in connection with this cheque, the same was not

disclosed.

Crl.R.C.No.1164 of 2016

17.Further, the accused has taken a similar stand in

STC.No.273 of 2012 connected with the Crl.R.C.No.1163 of 2016,

which is dismissed on the same day(today). In this regard, it has to be

stated that Ex.P1/cheque is dated 25.02.2005, Ex.P2/return memo dated

24.08.2005, in other words, the cheque was presented after six months,

assumes significance. Furthermore, the date of filing of insolvency

petition in I.P.No.9 of 2005, before the learned Principal Sub Judge,

Namakkal, is on 08.08.2005 also relevant since it is a specific case of the

revision petitioner/accused that he, after filing insolvency petition in

I.P.No.9 of 2005, the case cheque has been presented by some

unscrupulous person, from whom, he has not received any debt, as

disclosed by him, in the said insolvency petition.

18.If the accused borrowed amount from the private

complainant/respondent herein, he could have been very well included

those names as a schedule in the insolvency petition and some of the

person from whom he had received debt, as disclosed in the insolvency

petition, have also taken signature in the blank cheque and fabricated the

Crl.R.C.No.1164 of 2016

signature as that of the accused used the private complainant as a toy and

filed present complaint. As stated supra, during the cross-examination of

PW1 the signature in the cheque was disputed. The accused as DW1

specifically stated that the signature contained in Ex.P1 is also

specifically disputed.

19.Records reveals that when the matter was pending before

the learned Judicial Magistrate, Namakkal in C.C.Nos.562 & 563 of

2005, this accused has filed four applications in both the Criminal

Revision Cases viz., Crl.R.C.Nos.1163 & 1164 of 2016. In each C.C. the

accused has filed two applications, one set of petitions in CMP.Nos.7022

& 7024 of 2005 were to call for the admitted signature found in his bank

account No.3066 from the Dhanalakshmi Bank Limited, Erode Branch

while another set of petitions in CMP.Nos.7021 & 7023 of 2005 were

filed for sending the cheque in question to the Forensic Science

Department for making comparison of the disputed signature with the

admitted signature.

20.By a separate order, the learned Judicial Magistrate, on

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23.10.2009, has allowed CMP.Nos.7022 & 7024 of 2005 as prayed for by

directing the bank authority to produce admitted signature of the accused

in the bank records. In support of other two applications viz.,

CMP.Nos.7021 & 7023 of 2005, the learned Magistrate has chosen to

dismissed the same on the ground that signature can be verified under

Section 73 of the Indian Evidence Act by the Court itself. Report from

the Forensic Department was unwarranted. Aggrieved against the same,

he has filed Crl.R.C.Nos.213 & 223 of 2010, before this Court. By an

order dated 19.09.2013, both the Criminal Revisions were disposed of

with liberty was given to the accused to seek appropriate remedy at

appropriate stage and the Trial Court shall decide depending upon the

nature of the defence and evidence available before it in the manner

known to law.

21.It appears that both the Trial Court as well as the Lower

Appellate Court has forgot to see this order passed by this Court, when

there is specific order by this Court to verify the signature since signature

in Ex.P1/cheque was disputed. Both the Courts below has miserably

failed to do exercise, as directed by this Court, in the above said order.

Crl.R.C.No.1164 of 2016

When the signature in the cheque is disputed presumption under Section

139 of the Negotiable Instruments Act does not arise in favour of the

respondent herein/complainant. Both the Courts below have made a

sweeping statement including above order.

22.As per the orders passed in CRP.Nos.7022 & 7024 of 2005,

the Trial Court ought to have compared the signature of the accused as

found in the bank records to arrive at a conclusion.

23.After perusing contemporary documents filed before this

Court in Ex.D1 & Ex.P1 and also Ex.P1 & P2/cheques in the connected

Crl.R.C.No.1163 of 2016, this Court satisfied that there is a vast

difference in the signature as found in Ex.P1 since signature was

disputed and it is appear to be manipulated. This Court finds that the

suggestive case of the defence that this cheque leaves have been

manipulated by forged signatures and presented for collection after the

insolvency petition was filed on 08.08.2005. Admittedly, the cheque was

presented for encahsment before the complainant's bank on 24.08.2005

i.e, one day prayer to six months expiry period, but the same is

Crl.R.C.No.1164 of 2016

subsequent to 08.08.2015/the date filing of the insolvency application

and hence this Court finds that the revision petitioner/accused has

probablised the suggestive case and hence in the absence of any positive

evidence to show passing of consideration under the cheque, the

complaint filed by the private complainant has to file.

24.Yet another point is that PW1 has not stated the date of

lending of the above said amount in his legal notice/Ex.P3. So, in PW1

cross examination, he has admitted non mentioning of the date of the

loan and he has not even disclosed the purpose for which the loan was

sought for. He has categorically admitted that he has not disclosed the

purpose for which the accused has asked for the loan and further he has

also admitted that where he has given the amount neither in the

complaint nor in the evidence, he has not stated about the place of

lending. In other words in the cross-examination of PW1, he admitted

that he has not mentioned for what purpose the loan was asked by the

complainant, he has not disputed about place where he has lend loan, he

has not whispered either in the complaint or in the chief examination

regarding the place lending of the loan and date of asking of the loan.

Crl.R.C.No.1164 of 2016

25.Hence, this Court finds that the suggestive case of the

prosecution that the private complainant is totally stranger, appears to be

more probable. In view of the findings that the signature found in

Ex.P1/cheque has not found to be at variation with the signature found in

the admitted document Ex.D1 and another cheques Exs.P1 & P2 in the

connected revision petition viz., Crl.R.C.No.1163 of 2016, the private

complainant is not entitled to presumption under Section 139 of the

Negotiable Instruments Act and furthermore, in view of the admission of

PW1 in the cross-examination regarding details of the asking of the loan

by the accused, lending of the amount are bereft of details neither in the

legal notice nor in the complaint nor in the PW1 chief-examination also

probablise the suggestive case and hence, the order of conviction passed

by both the Courts below is liable to be set aside

26.Hence, this Criminal Revision Case stands allowed. The

conviction and sentenced passed in S.T.C.No.294 of 2012, by the

Judicial Magistrate [Fast Track Court], Tiruchengode, dated 26.06.2014,

as confirmed in C.A.No.54 of 2014, by the learned Principal Sessions

Crl.R.C.No.1164 of 2016

Judge, Namakkal, dated 05.11.2014, is hereby set aside and the revision

petitioner is acquitted. In view of the conditional order passed at the time

of admission in Crl.M.P.Nos.10286 & 10289 of 2016, amount deposited

by the accused is permitted to be withdrawn.

22.09.2021 Index : Yes Internet : Yes dua

To:

1.The Principal Sessions Judge, Namakkal.

2.The Judicial Magistrate [Fast Track Court], Tiruchengode.

Crl.R.C.No.1164 of 2016

RMT.TEEKAA RAMAN, J.

dua

Crl.R.C.No.1164 of 2016

22.09.2021