Sridhar Prasad vs Clara Betcy
2022 Latest Caselaw 6917 Mad

                                                                                   Crl.A.No.211 of 2013

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 04.04.2022

                                                          CORAM

                             THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR

                                                   Crl.A.No.211 of 2013
                  Sridhar Prasad                                                    ... Appellant
                                                             vs.

                  Clara Betcy                                                       ... Respondent

                  Prayer: Criminal Appeal filed under Section 378(4) of Cr.P.C. praying to set
                  aside the judgment of the Appellate Court dated 09.01.2013 passed in
                  C.A.No.156 of 2011 on the file of the VI Additional Sessions Court, Chennai
                  and restore the judgment of the XXIII Metropolitan Magistrate Court,
                  Saidapet in C.C.No.9714 of 2009, convicting the respondent.

                                  For Appellant            : Mr.M.Deivanandam
                                  For Respondent           : Ms.S.Umamaheswari
                                                             Legal Aid Counsel

                                                       JUDGMENT

The appellant/complainant has filed this appeal seeking to set aside

the judgment of acquittal rendered by the VI Additional Sessions Judge,

Chennai in C.A.No.156 of 2011 dated 09.01.2013.

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Crl.A.No.211 of 2013

2. The appellant herein has filed a private complaint against the

respondent under Section 138 of the Negotiable Instrument Act in

C.C.No.9714 of 2009. The learned XXIII Metropolitan Magistrate, Saidapet,

Chennai vide judgement dated 27.01.2011 had convicted the respondent and

sentenced to undergo six months Simple Imprisonment and to pay a fine of

Rs.5,000/-, in default to undergo three months Simple Imprisonment.

Aggrieved by the said order, the respondent herein has filed an appeal in

C.A.No.156 of 2011 on the file of the VI Additional Sessions Court, Chennai

and the learned VI Additional Sessions Judge had acquitted the

respondent/accused. Challenging the order of acquittal, the

appellant/complainant has preferred this appeal.

3. The case of the appellant/complainant is that the respondent and

the appellant have entered into doing business by purchasing old flats,

renovating the same and sell them at higher price and thereafter share the

profits. Based on the representation made by the respondent, the appellant https://www.mhc.tn.gov.in/judis

Crl.A.No.211 of 2013

had invested a sum of Rs.2,00,000/- for the purchase of flat, which belongs to

D.W.2- K.Shaji and to sell the same at a higher price, after making necessary

renovation. He issued two cheques bearing Nos.612133 and 612134 dated

15.05.2008, each for R.75,000/- drawn on Dhanalakshmi Bank Limited,

T.Nagar, Chennai in favour of the said K.Shaji and a sum of Rs.50,000/- in

cash, in total, he had paid a sum of Rs.2,00,000/- (Rupees Two lakhs only).

To enforce the liability, the respondent had issued a cheque for a sum of

Rs.3,00,000/- (Rupees Three lakhs only) for investment along with a

covering letter dated 28.02.2009. The covering letter has been marked as

Ex.P1 and the cheque issued by the respondent has been marked as Ex.P2.

Thereafter, the cheque was presented for collection on 02.04.2009 with

appellant's Bank, namely, TNSC Bank Limited, Ashok Nagar Branch,

Chennai, but the same was returned for the reason, “Insufficient Funds” on

04.04.2009. The bank return memo dated 03.04.2009 has been marked as

Ex.P3 and debit advice dated 04.04.2009 has been marked as Ex.P4.

Thereafter, a statutory notice dated 09.04.2009 was sent to the respondent and

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Crl.A.No.211 of 2013

the same was returned with an endorsement “No such addressee” and

previous endorsement as “Door locked”. The postal return cover was marked

as Ex.P6.

4. Before the trial Court, the complainant examined himself as

P.W.1. The accused examined herself as D.W.1 and the said K.Shaji was

examined as D.W.2. No defence side exhibits marked.

5. The trial Court, on considering the evidence and the materials,

had given a finding that the respondent did not deny her signature and

presumption has not been discharged, in view of Section 139 of Negotiable

Instrument Act. Statutory presumption against the respondent and also on the

ground that Ex.P1 covering letter given by the respondent is not denied and

in which, issuance of cheque is confirmed, convicted the respondent as stated

above. On appeal, the learned VI Additional Sessions Judge, Chennai had set

aside the conviction.

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Crl.A.No.211 of 2013

6. The contention of the appellant is that the issuance of cheque is

not denied by the respondent. She had also handed over the cheque along

with a covering letter-Ex.P1. On reading of the covering letter, it is seen that

the cheque for a sum of Rs.3,00,000/- dated 01.04.2009 drawn on ICICI

Bank, Nungambakkam Branch, Chennai has been handed over to the

appellant. Handing over is admitted. Further, dishonour of the cheque for

insufficient funds and thereafter issuance of statutory notice are not disputed.

Following the statutory conditions, the complaint has been filed.

7. The appellant/complainant has examined himself as P.W.1 and

marked documents. During cross examination, the respondent has not

discharged the liability, which is a statutory presumption in any manner. The

appellant re-affirms in the cross examination that he had paid Rs.2,00,000/-

to K.Shaji. The said Shaji was not known to him. He was introduced by the

respondent and on her assurance the amount of Rs.2,00,000/- has been paid to

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Crl.A.No.211 of 2013

D.W.2. It was only by way of suggestion put forth to the appellant, it was the

business investment by the appellant along with the respondent, anticipating

future profit and benefit, the cheque- Ex.P2 has been issued in this case. This

suggestion was also denied. Further, the respondent by examining herself as

D.W.1, except for oral evidence, stating that she made investment of

Rs.6,00,000/- for the purpose of Shaji's property. Shaji gave promise to return

back Rs.6,00,000/-. Since the sale of flat could not be completed, Shaji could

not return back Rs.6,00,000/-. The cheque given to the complainant was also

dishonoured and further D.W.2-Shaji admits about the receipt of

Rs.2,00,000/- from the complainant and attempts to wriggle out the accused.

8. The trial Court disbelieved the evidence of D.W.1 and hence

convicted the respondent. The Lower Appellate Court acquitted the

respondent on two grounds, viz., (i) the appellant admits that he had made a

payment of Rs.2,00,000/- directly to D.W.2 by way of two cheques for a sum

of Rs.75,000/- each, and Rs.50,000/- in cash and not to the

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Crl.A.No.211 of 2013

respondent/accused and (ii) The statutory notice-Ex.P5 has been returned

with postal cover-Ex.P6. In the postal cover the endorsement has been

initially made as 'No such Addressee', which is not proper. The respondent is

very much residing there, hence the service of statutory notice cannot be

presumed to be proper and on its own had given a finding that the

complainant has committed some trick and fraud in collusion with the postal

authorities. Therefore, it was held that statutory notice was not served. Hence,

the learned counsel for the appellant submitted that the acquittal rendered by

the Lower Appellate Court has to be set aside and the conviction be restored.

9. Learned counsel appearing for the respondent submitted that in

this case, the respondent jointly doing business with the appellant. In the

covering letter-Ex.P1, it is clearly mentioned as “we are enter the business of

one Mr.Shaji. He is selling his own flats. So Mr.Sridhar has investment

Rs.2,00,000/-”. Further, in P.W.1's evidence, he admits that he had paid the

amount of Rs.2,00,000/- to Shaji directly as follows:

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Crl.A.No.211 of 2013

(i) Two cheques bearing Cheque Nos.612133 and 612134 dated 15.05.2008 each for Rs.75,000/- drawn on Dhanalakshmi Bank Limited, T.Nagar, Chennai; and

(ii) Rs.50,000/- in cash.

He admits that a sum of Rs.2,00,000/- has been given directly to Shaji, which

is further fortified and confirmed with the evidence of D.W.1/respondent and

D.W.2/Shaji. Further, in a joint business agreement when the business could

not be concluded, there is no question of sharing the profit. The cheque was

issued in anticipation of successful business. In this case, the purchase of flat

and selling it in higher rate could not be made, which was admitted and

accepted by D.W.2-Shaji. It is not the case of the appellant that the

respondent had sold the property of Shaji and taken away the profit herself

and further the complainant admits that the cheque was issued in repayment

for the investment made in the business.

10. The learned counsel appearing for the respondent further

submitted that D.W.2 admits that the respondent had issued a cheque of

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Crl.A.No.211 of 2013

Rs.3,00,000/- only as security for the business investment. Further, D.W.2

confirms that his Flat is yet to be sold. The respondent had entered into

witness box as D.W.1 and she had given an explanation as under what

circumstances the cheque-Ex.P2 has been issued to the appellant. The trial

Court, merely on the presumption that under Section 139 of N.I. Act finding

that signature of the respondent not denied, convicted the respondent without

considering these factual aspects. The Lower Appellate Court on considering

the evidence independently, acquitted the respondent. The judgment of

Lower Appellate Court is well reasoned one and needs no interference.

11. The learned counsel further submitted that on mere perusal of

the cheque-Ex.P2, it can been seen that the cheque had been filled up by the

appellant on its own and comparison of the hand writing in covering letter

Ex.P1 and cheque-Ex.P2 would confirm the same. On the other hand, the

appellant in his evidence had falsified by stating that the respondent had

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Crl.A.No.211 of 2013

filled up the cheque. Finding various infirmities the Lower Appellate Court

had acquitted the respondent.

12. Considering the submissions made by the learned counsel

appearing on either side and on perusal of materials, it is seen that the

appellant had entered into joint business with the respondent in making

investment for purchase of flat, thereafter renovating the same and selling it

for higher price. For this business, he had invested an amount of

Rs.2,00,000/- and paid the same directly to D.W.2 Shaji, who is the owner of

the flat situated at Ayanavaram. The said Rs.2,00,000/- has been paid by way

of two cheques drawn on Dhanalakshmi Bank Limited, T.Nagar, Chennai,

each for a sum of Rs.75,000/- and Rs.50,000/- in cash. It is not denied but an

admitted fact. In Ex.P1-covering letter, joint business has been admitted.

D.W.1 and D.W.2 confirm that the business could not fructify and hence,

investments got blocked. The appellant does not dispute the same. Finding

that it is a business venture entered into between the appellant and the

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Crl.A.No.211 of 2013

respondent and the business venture could not succeed, anticipating future

profit in the business venture, the cheque is issued. Based on the said

findings. the Lower Appellate Court had acquitted the respondent. This Court

finds no reason to interfere with the judgment of acquittal rendered by the

Lower Appellate Court.

In the result, the Criminal Appeal is dismissed, confirming the

acquittal of the respondent by the Lower Appellate Court in C.A.No.156 of

2011. This Court appreciate the Legal Aid Counsel, who made meticulous

preparation and effective submission in this appeal.

04.04.2022

Index: Yes / No Internet: Yes / No Speaking/Non speaking order rsi

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Crl.A.No.211 of 2013

M.NIRMAL KUMAR, J.

rsi

To

1.The VI Additional Sessions Judge, Chennai.

2.The XXIII Metropolitan Magistrate, Saidapet, Chennai.

Crl.A.No.211 of 2013

04.04.2022

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