V.Girija vs M.Sasikumar
2021 Latest Caselaw 19555 Mad

                                                                      Crl.Rc.No. 1237 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 23.09.2021

                                                   CORAM:

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                             Crl.RC.No.1237 of 2019

                     V.Girija
                     W/o.Prabhakaran
                     Proprietorix /Authorized Signatory
                     First Floor, Rajkumar Apartment,
                     Door No.599, Seva Goundar Street,
                     Vanniar Nagar, Periya Pudhur
                     Alagapuram Pudhur Post, Pambarakara Vattam
                     Salem- 636016, Salem District
                     Residing at
                     Door No.146/65-C4, Kannadasan Street
                     Alagapuram Pudhur, salem – 636016                      ...Petitioner

                                                      Vs


                     M.Sasikumar, M/42 Years
                     S/o.A.Muthu
                     Proprietor, M/s.Blue Star Leather
                     Door No.12-A, R.S.A. Abdulkadhar Tannery,
                     Bhiramana Periya Agraharam
                     Erode – 636005, Erode Taluk & District               ...Respondent




https://www.mhc.tn.gov.in/judis
                                                                                    Crl.Rc.No. 1237 of 2019

                     Prayer: The Criminal Revision Petition is filed under Section 397 and 401
                     of Cr.P.C praying to call for the order passed in Crl.A.No.30 of 2019 dated
                     25.09.2019 by the Principal Sessions Judge, Erode, confirming the
                     Judgment and sentence to undergo one year simple imprisonment and
                     ordered to pay fine of Rs.5,000/- in default to undergo three months simple
                     imprisonment by confirming the order passed in S.T.C. No.94 of 2017 dated
                     03.01.2018 by the Judicial Magistrate, Fast Track Court No.II, Erode and
                     set aside the same and thereby allow the Criminal Revision Petition and
                     consequently acquit the petitioner.


                                              For Petitioner     :     Mr.T. Sundaravardanam
                                              For Respondent     :     Mr.Jaga Jothi




                                                               ORDER

(The case has been heard through video conference)

This Criminal Revision Case has been filed against the order passed in

Crl.A.No.30 of 2019 dated 25.09.2019 passed by the Principal Sessions

Judge, Erode, confirming the Judgment of conviction and sentence passed by

the learned Judicial Magistrate, Fast Track Court No.II, Erode in S.T.C.

No.94 of 2017 dated 03.01.2018.

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

2. The petitioner is the accused and the respondent is the complainant.

The respondent filed a private complaint against the petitioner under Section

200 Cr.P.C. for the offence under Section 138 of Negotiable Instruments Act

before the learned Judicial Magistrate, Fast Track Court-II, Erode and the

learned Magistrate taken cognizance of the complaint in S.T.C.No. 94 of

2017 and after enquiry, convicted the petitioner for the offence under

Section 138 of Negotiable Instruments Act and sentenced him to undergo

one year simple imprisonment and to pay a fine of Rs.5,000/- and in default

to undergo 3 months simple imprisonment.

3. Challenging the said Judgment of conviction and sentence, the

petitioner herein filed an appeal before the Principal District and Sessions

Judge, Erode and the learned Principal Session Judge, taken the appeal on

file in Crl.A.No.30 of 2019 and after hearing the arguments and re-

appreciating the entire materials, dismissed the appeal and confirmed the

Judgment of the learned Magistrate. Now, challenging the said Judgment of

dismissal of appeal, the accused has filed the present revision before this

Court.

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

4. Learned counsel for the petitioner/accused would submit that the

alleged cheque was given only for security purpose. Further, the charge of

dishonour of cheque and the specific case was not at all genuine and the

liability of goods to the extent of Rs.19,66,655/- delivered through invoice

were subsequently returned and it was not taken up for export and to prove

that the petitioner had exported the goods sent by the

respondent/complainant, no proof/document was produced by the

respondent/complainant before the Court of law. Further, the Courts below

have failed to note that the invoice quantity does not matches with the Form

JJ and hence the contention of the respondent/complainant that the

petitioner/accused had got the delivery of goods, is not proved. Hence, the

sale of goods through invoice is not at all valid and there is no legally

enforceable debt. The respondent/complainant had earlier set up one

Jothimani and made a complaint dated 04.01.2017 stating that the petitioner

abused him in unparliamentary words using his caste and the same was later

closed on 21.02.2017 as “mistake of fact” which itself would prove that the

respondent is adopting illegal method to extract money from the

petitioner/accused by misusing her cheque given for security purpose.

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

4.1 The learned counsel further contended that the

respondent/complainant never attempted to prove his case by bringing the

said Deepa Leathers, Ranipet, where the goods were alleged to have been

delivered, but, the respondent/complainant has produced the delivery note

without authorized signature from the alleged delivery agency namely Deepa

Leathers. Though the seal is mandatory for delivery note, without seal and

name, the delivery note has been produced with a signature of whom is not

mentioned clearly and that the said person, who made the signature was not

examined before the Court. Further, the handwriting in the cheque which

has been marked as Ex.P.3, differs from the signature of the

petitioner/accused and the cheque has been presented in the petitioner's

bank account without PAN Number which is mandatory for doing

transaction for more than rupees fifty thousand. Which itself, clearly shows

that the cheque was issued only for security purpose. Further, the Courts

below failed to note the credit worth ability to lend such a huge sum through

invoice goods when the respondent's annual business itself is less than the

said amount raised in the invoice.

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

5. The learned counsel for the respondent would submit that the

signature in the disputed cheque is admitted and the execution of the cheque

is also admitted and the only defence taken by the petitioner/accused is that

the cheque was issued only for security purpose. Further, she has admitted

the transaction and paid part payment and failed to pay the balance

consideration, for which, he sought time for repayment after sending the

goods. Therefore, both the trial Court as well as the lower appellate Court

have rightly appreciated the evidence and after considering the oral and

documentary evidence, convicted the petitioner/accused. Since, the petitioner

has no valid defence, he is taking evasive false defence in order to protract

the payment of cheque and there is no merit in the revision and the revision

is liable to be dismissed.

6. Heard the learned Counsel for the petitioner and learned Counsel

for the respondent and perused the materials on records.

7. The case of the respondent/complainant is that, he is doing leather

business in the name and style of “Blue Star Leather” at Erode and the

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

accused is also doing leather business in the name and style of “Senthur

Exim” and she is its sole proprietorix/authorized signatory. The petitioner /

accused had purchased the leather goods, namely, Wed Blue Sides and Wet

Blue Hides from the respondent/complainant on credit basis under Invoice

No.22, dated 08.02.2016 for a sum of Rs.19,66,655/- and the same was

delivered to the petitioner/accused, for which she had issued a cheque dated

03.09.2016 bearing No.000023 drawn at Ratnaka Bank Limited, 103/105,

Sriram Nagar, Saradha College Road, Salem branch. The said cheque was

presented for collection by the respondent / complainant through Indian

Overseas Bank, Periyasemur branch on 03.09.2016, but the same was

returned on 05.09.2016 as “Funds Insufficient”. Thereafter, as per the

instruction of the petitioner/accused, the respondent /complainant

represented the cheque for collection on 20.11.2016, but again it was

dishonoured on 22.11.2016 for the reason “Funds Insufficient”. The

petitioner / accused knowing fully well that there was no sufficient amount

in her account, had issued the cheque in order to cheat and defraud the

respondent / complainant. Therefore, statutory notice dated 12.12.2016 was

issued by the respondent / complainant to the petitioner / accused to her

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

office address as well as to her residence address, calling upon her to pay the

due under the cheque within 15 days from the date of receipt of notice. The

notice addressed to the residence of the petitioner /accused was received on

15.12.2016 however, the official addressed cover was returned on

15.12.2016 with an endorsement “left without instruction”. Subsequently,

the petitioner/accused issued a reply notice dated 31.12.2016 with false

averments and not paid the amount. Hence, the complaint.

8. The learned Counsel for the petitioner taken the defence that the

husband of the petitioner was examined as D.W.2 and he has deposed that

the petitioner is nothing to do with the transaction, which infact held

between him (D.W.2) and the respondent and that the petitioner is only an

agent of the leather goods and name lender and she has not actively

participated and not doing any business. As an agent, she visited the

godown of the respondent and after seeing the leather goods, the respondent

asked the petitioner to execute a cheque for security purpose. Therefore, she

executed the cheque and there was no transaction between the petitioner

and the respondent and that the leather goods were not taken from the

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

respondent. Therefore it is not legally enforceable debt. However, a perusal

of records shows that the petitioner has not disputed the signature and not

denied the execution of cheque. The only defence is that she had executed

the cheque for security purpose. If at all the petitioner, who is wife of

D.W.1 does not have any liability, there is no explanation for what reason

the petitioner signed the disputed cheque.

9. The petitioner herself admitted the signature and execution of

cheque for security purpose. Even issuance of cheque for security purpose

also falls under legally enforceable debt, unless it is proved that the cheque

was not issued for legally enforceable debt. Therefore, the presumption

under Section 139 of Negotiable Instrument Act would come into play and it

is for the the accused to rebut the presumption in the manner known to law.

10. No doubt, to rebut the presumption, the petitioner/accused need

not let any direct evidence by coming into witness box and it can be rebutted

through preponderance of probability. Though, in this case, on the side of

the petitioner, 2 witnesses were examined, however, a reading of the entire

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

materials shows that the transaction between the petitioner/accused and

respondent/complainant has been proved by the respondent/complainant and

the execution of cheque has also been proved. Once the accused has not

denied the execution of cheque, then it is for the accused to rebut the

presumption.

11. The learned Magistrate rightly appreciated the entire evidence and

invoked the presumption under Section 139 of NI Act and found the guilt of

the petitioner/accused for the offence under Section 138 of Negotiable

Instrument Act. Further, the appellate Court as a final Court of fact finding,

by re-appreciating the entire evidence, found that the signature was admitted

and the execution of cheque has not been denied and that the petitioner has

not proved that she has no access with the business and only her husband

had transaction. Once it is admitted by the petitioner that she signed the

cheque as proprietorix and issued the same to the respondent for security

purpose, then the Court can draw the presumption and it is for the accused

to rebut the same in the manner known to law.

12. The scope of the revision Court is very limited. The revisional

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

Court cannot re-appreciate or re-visit the entire oral and documentary

evidence with regard to the findings of the fact by the appellate Court unless

the Court finds that there is perversity in appreciation of evidence. Normally

the revisional Court will not interfere with the Judgment of the Courts below,

unless there exist perversity in appreciation of evidence by the Courts below.

13. A reading of the entire materials, this Court does not find any

perversity or illegality in appreciation of the evidence by the Courts below

and there is no merit in the revision and the revision is liable to be dismissed.

14. Accordingly, this Criminal Revision case is dismissed.

23.09.2021 ksa-2/dsn

https://www.mhc.tn.gov.in/judis Crl.Rc.No. 1237 of 2019

P.VELMURUGAN, J.

dsn To

1. The Principal Sessions Judge, Erode

2. The Judicial Magistrate, Fast Track Court No.II, Erode

Crl.Rc.No. 1237 of 2019

23.09.2021

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