P.Selvaraj vs K.Subramaniam
2021 Latest Caselaw 19393 Mad

                                                        Crl.R.C.No.1163 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.1163 of 2016

P.Selvaraj                                     ... Petitioner/Accused
                                    vs.
K.Subramaniam                                 ... Respondent/Complainant

PRAYER: This Criminal Revision Case has been filed under Section
397 r/w 401 of Cr.P.C., seeking to call for the records in C.A.No.53 of
2014, dated 19.07.2016, 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.273 of 2012
dated 26.06.2014 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

                                ORDER

(This case has been heard through video conference)

The private complaint/respondent herein has filed a case in

STC.No.273 of 2012, before the learned Judicial Magistrate, Fast Track

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Court, (Magisterial Level), Tiruchengode, based upon Exs.P1 &

P2/Cheques.

2.Originally the case was filed in C.C.No.562 of 2005, before

the learned Judicial Magistrate, Tiruchengode, on the ground that on

07.05.2005, the accused had borrowed a sum of Rs.1,14,000/- (Rupees

one lakh fourteen thousand only) from the complainant and to discharge

the liability the revision petitioner herein/accused had issued two

cheques, both were drawn on “The Dhanalakshmi Bank Ltd, Erode

Branch, one cheque bearing No.7957072, dated 18.06.2005 for a sum of

Rs.50,000/-, which was marked as Ex.P2 and another cheque bearing

No.8002608, dated 07.06.2005 for a sum of Rs.64,000/-, which was

marked as Ex.P1, in favour of the complainant.

3.The respondent herein/complainant had presented the above

said two cheques for encashment through “State Bank of India”

Pallipalayam Branch, on 25.08.2005 and the same was dishonoured as

“Insufficient Finds” in the account of the revision petitioner

herein/accused. Thereafter, the respondent herein/complainant on

Crl.R.C.No.1163 of 2016

19.09.2005 had issued a statutory notice to the revision petitioner

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

counsel with an endorsement as “Refused returned to sender.” Hence,

the complaint.

4.During the course of trial on behalf of the respondent

herein/complainant, one Subramaniam was examined as PW1 and Exs.P1

to P7 have been marked; on behalf of the defence, one Selvaraj was

examined as DW1 and Ex.D1/I.P Petition No. 9 of 2005 has been

marked.

5.Before the Trial Court, the learned counsel for the revision

petitioner herein/accused has contended that the accused has not

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

cheque leaves were not issued by him for any legally enforceable debt as

alleged and the signature in Exs.P1 & P2/cheques were not the signature

of the accused and there is no legally recoverable debt and hence, the

complaint is not maintainable.

Crl.R.C.No.1163 of 2016

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

Judicial Magistrate, 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.1,14,000/-. Aggrieved

against the same, the revision petitioner herein/accused has preferred a

Criminal Appeal No.53 of 2014, before the learned Principal District and

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.273 of 2012. Both the Courts below have held that the

accused has not explained how the cheques were reached to the private

complainant. Hence, the present Criminal Revision Case has been

preferred by the accused.

7.Heard both the learned counsels and perused the materials

placed on record.

Crl.R.C.No.1163 of 2016

8.The learned counsel for the revision petitioner/accused

would contend that there is no dispute with regard to the fact that Exs.P1

& P2/cheque leaves herein are the cheque leaves supplied by the bank to

the revision petitioner herein/accused in respect of his account

maintained with banker. While so, the signature found in Exs.P1 &

P2/cheques were not admitted by the accused and he has not borrowed

any amount as alleged by the respondent herein/complainant and the

cheque leaves were not issued by the accused to the complainant and no

consideration was passed from the respondent herein/complainant to the

accused with respect to the case cheque leaves.

9.The complainant immediately after the dishonor of the case

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

with an endorsement “Refused returned to sender”, as evidence by

Ex.P7.

10.In Kanju Viswanadhan Vs. Ramakrishnan Surendran 1998 Crl.

LJ 3553 (Ker), it has been held that

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“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 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”.

Hence, Ex.P7 is deemed to be served properly.

11.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 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.”

Crl.R.C.No.1163 of 2016

“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”.

As held in the above decision, the accused who has not paid the amount

even after receipt of the summon from the Court along with the copy of

the complaint under Section 138 of Negotiable Instruments Act and has

not sent any reply, cannot contend that there was no proper service of

notice as required under Section 138 of the Act. Admittedly, the accused

has denied the signatures in Exs.P1 & P2/Cheques.

12.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

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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.

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

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

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known to law.

14.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 Exs.P1 & P2/cheques were disputed. Both the Courts below have

miserably failed to do exercise, as directed by this Court, in the above

said order. When the signature in the cheques 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.

15.As per the orders passed in CMP.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.

16.Hence, this Court finds that prayer to send the signature for

comparison was allowed and prayer to send for expert opinion alone was

rejected, however as directed, the Trial Court to take appropriate remedy

Crl.R.C.No.1163 of 2016

at appropriate stage for comparison, the accused/revision petitioner has

entered into witness box as DW1 and could deposed that he has

specifically disputed the signature in Exs.P1 & P2/Cheques and he has

already filed the necessary applications for comparison of signatures

found in the cheque. For the reasons best known, both the Courts below

have apparently not considered the earlier order passed by this Court in

Crl.R.C.Nos.213 & 223/2010 dated 19.10.2013, whereby duty was

passed upon the Court to verify signatures found in Exs.P1 &

P2/cheques. Certified copies of the cheques were filed.

17.Further, this Court finds that there is a material alteration as to

the date of the cheque in Ex.P1/cheque, initially it was dated 08.10.2004

and later it was scored off and 07.06.2005 was written and in

Ex.P2/cheque, initially it was dated 18.08.2004 and later it was scored

off and 18.06.2005 was written.

18.At this juncture, the suggestive case of the defence as spoken to

by the accused in the witness box as DW1 is that as per Ex.D1, he had

filed insolvency petition under Sections 8 & 9 of the Provincials of the

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Insolvency Act before the learned Principal Sub Judge, Tiruchengodu, in

I.P.No.9 of 2005 and the said insolvency petition was filed on

08.08.2005. These two cheques after alteration of the date resembles as

if it is dated 07.06.2005 and 18.06.2005. However, on a perusal of

Exs.P3 & P4/return memos dated 25.08.2005, by the Bank, this Court

finds that the cheques were returned on 25.08.2005 and 27.08.2005.

Admittedly, these two cheques were presented for encashment before the

bank only after filing of the insolvency petition in I.P.No.9 of 2005 as

could be seen from Ex.D1, assumes significance and cause serious doubt

as to the nature of the alteration with regard to dates in Exs.P1 and P2.

19.Admittedly, in view of the order passed by this Court in

Crl.R.C.Nos.213 & 223 of 2010, a duty was passed upon the learned

Judicial Officer, to verify the signature since it was filed under Section

76 of the Indian Evidence Act.

20.On a perusal of the signature found in the two cheques along

with the signature found near and below of the date of the cheque, this

Court find that all the signatures were totally forged in all aspects and

Crl.R.C.No.1163 of 2016

hence, this Court has no hesitation to held that Exs.P1 & P2/Cheques

suffers from material alteration amounting in validation of the cheques,

besides this Court also finds that merely because the accused has not

filed any declaration in the insolvency petition to include these dates, it

will not wipe out his defence however, since complainant come forward

with specific case based upon Exs.P1 & P2/cheque, which suffers from

material alteration as to the date and the signatures and coupled with

order passed by this Court in Crl.R.C.Nos.213 & 223 of 2010, both the

Courts below have not properly understood the order passed by this

Court in Criminal Revision Cases with regard to comparison of signature

by the Court and hence, when the signature itself is under doubt, the

respondent herein/complainant is not entitled for presumption under

Section 139 of the Negotiable Instruments Act. Consequently, this Court

finds that the finding rendered by both the Courts below that the private

complainant is entitled for statutory presumption under Section 139 of NI

Act is erroneous and accordingly said finding is hereby set aside and

hence, in the absence of any positive evidence regarding passing of

consideration under Exs.P1 & P2/cheques and coupled with the material

contradiction in Exs.P1 & P2 and as to the signature in the absence of

Crl.R.C.No.1163 of 2016

any statutory presumption, the complainant has not proved his case.

21.In this view of the matter, this Criminal Revision Case stands

allowed and the conviction and sentenced passed in S.T.C.No.273 of

2012, by the Judicial Magistrate [Fast Track Court], Tiruchengode, dated

26.06.2014, as confirmed in C.A.No.53 of 2014, by the learned Principal

Sessions Judge, Namakkal, dated 19.07.2016 is hereby set aside. The

revision petitioner is acquitted.

The arguments of the legal aid counsel viz., Ms.V.Valarmathi, for the

respondent is hereby appreciated and placed on record.

Note: High Court Legal Aid Services Authority is directed to award a

sum of Rs.5,000/- to M/s.V.Varlarmathi, legal aid counsel appearing for

the respondent.

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.1163 of 2016

RMT.TEEKAA RAMAN, J.

dua

Crl.R.C.No.1163 of 2016

22.09.2021