Madras High Court
M/S.Indo Swiss Electricals & ... vs M/S. Rmh Control System on 29 September, 2021
CRL.A.No.933 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :29.09.2021
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
CRL.A.No.933 of 2019
M/s.Indo Swiss Electricals & Enterprises,
Rep. By its Manager,
Mr.Samrat Kishan Rao,
New No.24, Old No.106,
Armenian Street,
Chennai – 600 001. ... Petitioner
Versus
M/s. RMH Control System,
Rep. By its Proprietor,
Mr.George Henry,
Office at No.T.S.69/3,
SIDCO Industrial Estate,
Ekkattuthangal,
Chennai – 600 097. ...
Respondent
PRAYER:
Criminal Appeal filed under Section 378 of the Code of Criminal
Procedure, to set aside the order dated 29.04.2019 passed by VI
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CRL.A.No.933 of 2019
Additional Sessions Judge, City Civil Court, Chennai in
C.A.No.370/2018 in set aside the judgment of conviction and sentence
passed by the learned Metropolitan Magistrate, Fast Track Court -IV,
George Town, Chennai – 600 001, and discharging the accused from
paying the compensation amount of Rs.16,26,189/- in C.C.No.837/2016
dated 21.05.2018 and to restore the order of conviction and sentence and
to pay compensation passed by the learned Metropolitan Magistrate, Fast
Track Court-IV, George Town, Chennai – 600 001.
For Appellant : Mr.G.Palani
*****
JUDGMENT
This Criminal Appeal has been filed to set aside the order dated
29.04.2019 passed in C.A.No.370 of 2018 on the file of the VI Additional
Sessions Judge, City Civil Court, Chennai, setting aside the judgment of
conviction and sentence dated 21.05.2018 passed in C.C.No.837 of 2016
on the file of the learned Metropolitan Magistrate, Fast Track Court -IV,
George Town, Chennai.
2. Appellant is the complainant and the respondent is the accused.
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CRL.A.No.933 of 2019
3. The appellant filed the private complaint under section 200
Cr.P.C., for the offence under section 138 of the Negotiable Instruments
Act, against the respondent before the Metropolitan Magistrate, Fast
Track Court No.IV, George Town, Chennai.. The learned Metropolitan
Magistrate taken the complaint on file in C.C.No.837 of 2016. After
completing the enquiry, convicted the respondent 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.16,26,189/- which is equal to the cheque amount, in default to
undergo two months simple imprisonment. Challenging the said
judgment of conviction and sentence and award of compensation, the
respondent filed appeal before the Principal Sessions Judge, Chennai in
Crl.A.No.370 of 2018. The same was made over to the VI Additional
Sessions Judge, City Civil Court, Chennai. The learned VI Additional
Sessions Judge after hearing the arguments and considered the grounds of
appeal and materials, allowing the appeal and set aside the judgment of
conviction and sentence and also compensation passed in C.C.No.837 of
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CRL.A.No.933 of 2019
2016 by the Metropolitan Magistrate, Fast Track Court No.IV, George
Town, Chennai. Now challenging the said judgment of acquittal passed
by the appellate court, the complainant has filed the present appeal before
this Court.
4. Though notice served to the respondent, the respondent
appeared through counsel. After some time, since the respondent not
appeared, name of the counsel was removed and the name of the
respondent also printed in the cause list. Since none appeared for the
respondent for long time, heard the learned counsel for the appellant and
perused the records.
5. Learned counsel for the appellant would submit that the
execution of cheque and the signature of the cheque are admitted.
Transaction between the appellant and the respondent is also admitted.
The only defence taken by the respondent is that the goods sent by the
appellant are defect in condition, therefore, the cheque was not returned
for want of sufficient fund, instead, it had been returned only for the
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CRL.A.No.933 of 2019
reason stoppage of payment. Since the goods sent by the appellant are
defective, the respondent gave instructions to the bank for stopping the
payment. Therefore, offence under section 138 of Negotiable Instruments
Act would not attract. Further, the learned counsel for the appellant
would submit that the appellant is only a dealer and he is not the
manufacturer and as per the franchise agreement, if any defect is found,
they have to send back the defective goods to the manufacturer. The
appellant is only the dealer and he is selling the goods only for
commission, nothing else. The respondent has not returned back the
goods either to the appellant or to the manufacturer. If at all the goods
are defective, they should have informed the same to the manufacturer
and as per agreement, immediately, they should have returned the same.
They should not give instructions to the bank for stopping the payment.
If the goods are defective, the manufacturer should have rectify the
defects and supply the new goods. The respondent has not done the same.
Further, even for the statutory notice also, he has not given any reply.
Once he admitted the signature, issuance of cheque and transaction itself,
there is a statutory presumption under section 139 of the Negotiable
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CRL.A.No.933 of 2019
Instruments Act. The cheque is issued for discharging legally enforceable
or liability. In this case, since the transaction is admitted and execution of
cheque is also admitted, the trial court rightly appreciated the evidence
and draw the presumption and allowed the complaint and convicted the
respondent. However, the appellate court failed to appreciate the
evidence and erroneously set aside the judgment of the conviction and
sentence passed by the Magistrate. The reason given by the appellate
court for allowing the appeal is perverse and the same is liable to be set
aside.
6. Already stated, though given several opportunities, none
appeared on behalf of the respondent. Heard the learned counsel for the
appellant.
7. Even in the evidence, the respondent admitted that there was a
transaction between the appellant and the respondent for more than 10
years. The order for the goods and also based on the invoice and
issuance of cheque, the appellant also delivered the goods to the
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CRL.A.No.933 of 2019
respondent. The respondent also received the goods. The only defence
taken by the respondent is that the goods suppled by the appellant is
defective. Therefore, the respondent gave instructions to the bank for
stopping of payment. However, admitted that the defective goods were
neither sent back to the dealer / appellant nor to the manufacturer. Once
the signature in the cheque admitted, execution of cheque is also
admitted, transaction between the parties are also admitted, supply of
goods also admitted, and the respondent also not given any reply to the
statutory notice. Therefore, under these circumstances, the appellant has
proved its case beyond all reasonable doubt. Once execution of cheque
and transaction are admitted, there is a statutory presumption under
section 139 of the Negotiable Instruments Act, which is a rebuttable
presumption. The respondent/accused has to rebut the presumption in
the manner known to law. ie., by way of preponderance of probabilities.
Burden of proof of the accused is not as that of heavy as the complainant.
Therefore, the accused always can rebut the presumption by
preponderance of probabilities. In this case, since the respondent
admitted the execution of cheque and transaction and receipt of all the
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CRL.A.No.933 of 2019
goods, and also admitted that he has not returned back the defective
goods, and not given any reply to the statutory notice, this Court finds
that the respondent has to rebut the presumption in the manner known to
law. Though the Magistrate rightly appreciated the evidence and
convicted the respondent, the appellate court failed to appreciate the
evidence and wrongly allowed the appeal and erroneously set aside the
order passed by the Magistrate. This Court finds that there is a perverse
in re-appreciation of evidence and findings of the appellate court.
Normally, in the appeal against acquittal, the appellate court or revisional
court will not interfere unless any compelled circumstances or perverse in
appreciation of evidence. This Court finds that the appeal is against
acquittal, though the trial court rightly appreciated the evidence, the
appellate court failed to appreciate the evidence legally as well as
factually. Finding of the appellate court is perverse. Therefore, the
judgment of the Appellate court is liable to be set aside and the judgment
of the Magistrate is liable to be restored.
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CRL.A.No.933 of 2019
8. For the reasons aforestated, the judgment dated 29.04.2019
passed in Crl.A.No.370 of 2018 is set aside and the judgment dated
21.05.2018 passed in C.C.No.837 of 2016 is restored. Resultantly, the
Criminal Appeal is allowed.
29.09.2021
Index: Yes/No
Internet: Yes/No
mfa
To
1. The VI Additional Sessions Judge,
City Civil Court,
Chennai.
2. The Metropolitan Magistrate,
Fast Track Court-IV,
George Town,
Chennai – 600 001.
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CRL.A.No.933 of 2019
P.VELMURUGAN, J.
mfa
CRL.A.No.933 of 2019
29.09.2021
https://www.mhc.tn.gov.in/judis
