Madras High Court
Hayagriva Cargo Movers Pvt. Ltd vs R.Selvarajan on 31 January, 2022
Crl.R.C.No.878 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 31.01.2022.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.878 of 2020
1. Hayagriva Cargo Movers Pvt. Ltd.,
Fleet Owners and Transport Contractors,
Represented by its Managing Director,
Tholiyar Manivannan,
16B, New No.65,
Periyathottam Colony, 1st Street,
Sugar Cane Post, Veerakeralam,
Coimbatore-641 007.
2. Tholiyar Manivannan,
Managing Director,
Hayagriva Cargo Movers Pvt. Ltd.,
16B, New No.65,
Periyathottam Colony, 1st Street,
Sugar Cane Post, Veerakeralam,
Coimbatore-641 007. ... Petitioners
Vs.
R.Selvarajan ... Respondent
Prayer: Criminal Revision filed is under Section 397(1) r/w 401 of Criminal
Procedure Code, pleased to set aside the order and Judgment dated
25.06.2021 in C.A.No.442 of 2018 on the file of the III Additional District
1/14
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Crl.R.C.No.878 of 2020
and Sessions Judge, Coimbatore confirming the conviction and sentence
imposed by the learned Judicial Magistrate Fast Track at Magisterial Level-
I, Coimbatore, by its Judgment dated 11.09.2018 made in C.C.No.339 of
2016 and acquit the petitioners.
For Petitioners : Mr.S.Panneerselvan
For Respondent : Ms.V.Aishwarya
for R & P partners
****
ORDER
(This case has been heard through video conferencing)
The Criminal Revision Petition has been filed seeking to set aside the
order dated 25.06.2020 in C.A.No.442 of 2018 on the file of the III
Additional District and Sessions Judge, Coimbatore confirming the
conviction and sentence passed by the Judicial Magistrate Fast Track at
Magistrate level-I, Coimbatore vide order dated 11.09.2018 in C.C.No.339
of 2016.
2. For the sake of convenience the parties are referred as complainant
and accused.
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Crl.R.C.No.878 of 2020
3. Brief facts of the case is as under:-
(a) A1 is a Private Limited Company, carrying on
business in transport viz., Fleet Owners and Transport Contractors. A2 is
Managing Director in A1 Company and A3 is the Director of A1 Company.
The Directors are actively participating in the day to day affairs and running
the business of A1 company. The case of the complainant is that A2, on
behalf of A1 and with the consent and concurrence of A3, approached the
complainant on 10.04.2014 and borrowed a sum of Rs.15,00,000/- from the
complainant for their urgent business commitment and executed a
promissory note/Ex.P1 by agreeing to repay the same with interest at 12 %
per annum.
(b) After receiving the amount, the accused failed to repay
either the principal or interest. The complainant had demanded the accused
to repay the amount and thereby, the accused had issued a cheque/Ex.P2
dated 14.05.2015 bearing No.256060 for Rs.15,00,000/- drawn in Indian
Bank, Vadavalli Branch, Coimbatore along with the covering letter/Ex.P4
dated 14.05.2015. As per the instructions of the accused, the complainant
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Crl.R.C.No.878 of 2020
presented the cheque for collection on 15.05.2015 to the banker Indian
Overseas Bank, Edayarpalayam Branch, Coimbatore and it was returned
with an endorsement "Insufficient Funds", vide return memo/Ex.P3 dated
27.05.2015. Hence, the complainant issued a legal notice/Ex.P5 on
04.06.2015 to the accused and the same was returned by the postal
authorities on 06.06.2015 with an endorsement "Intimation Given Not
claimed", which were marked as Ex.P6 to Ex.P8. Thereafter also, the
accused failed to make the payment of the cheque.
(c) Hence the complainant had filed a petition in C.C.No.339 of
2016 on the file of the Judicial Magistrate, Fast Track Court No.I,
Coimbatore. On the side of the complainant, he examined himself as PW1
and Ex.P1 to Ex.P8 were marked and on the side of the accused, no oral and
documentary evidence were adduced. The Trial Court, after elaborate
enquiry, finding that the complaint had proved his case and found A1 and
A2 guilty for the offence under Section 138 of Negotiable Instruments Act
and convicted and sentenced A2 to undergo six months Simple
Imprisonment and also directed A1 and A2 to pay a sum of Rs.15,00,000/-
as per Section 357 (3) Cr.P.C payable to the complainant within two months
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Crl.R.C.No.878 of 2020
from the date of that judgment and as per Section 255(2) of Cr.P.C ,
acquitted A3/Director of A1 Company.
(d) Against the judgment of conviction and sentence, A1 and
A2 had filed an Appeal in C.A.No.442 of 2018 before the III Additional
District and Sessions Judge, Coimbatore. The accused had contended that
the Trial Court, had failed to analyze the oral and documentary evidence
produced on both the sides and the amount of Rs.15,00,000/- is a huge
amount and that the complainant has to disclose the source of income and
the complainant had not produced the Income Tax returns for the
assessment year 2013-2014. During the pendency of the Appeal, the
accused had filed applications (i) Crl.M.P.No.7 of 2019 seeking to direct the
complainant to produce the IT returns for the assessment year 2013-14 and
(ii) Crl.M.P.No.8 of 2019 seeking to examine one Rajagopalan. He would
further contend that the complainant had failed to examine the attestors to
the promissory note and the money borrowed was only Rs.12,00,000/- and
that the complainant had filled the cheque for Rs.15,00,000/- and filed the
case.
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Crl.R.C.No.878 of 2020
(e) The Appellate Court finding that the accused had earlier
filed the same application before the Trial Court under Section 91 Cr.P.C.,
and the Trial Court, had dismissed the application and despite its dismissal
of the petition, the accused had not filed the applications challenging the
same and filed the applications once again before the Appellate Court. In
C.M.P.No.7 of 2019, the Appellate Court holding that the accused had
admitted to having received a sum of Rs.12,00,000/- from the complainant,
is estoped from raising the plea of financial capacity of the complainant, had
dismissed the application. Further, the Appellate Court dismissed the
application in C.M.P.No.8 of 2019, stating that the said Rajagopalan did
not appear before the Trial Court despite the receipt of summons and the
accused had not stated anything as to what were the steps have been taken
by him to secure the said Rajagopalan.
(f) Further, the Appellate Court holding that the case of the
complainant has been proved and the accused had failed to rebutt the
presumption against him, dismissed the appeal by confirming the conviction
and sentence passed by the Trial Court. Against which, the present Revision
has been filed.
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Crl.R.C.No.878 of 2020
4. Learned counsel appearing for the petitioners would submit that the
revision petitioners had borrowed only a sum of Rs.12,00,000/-, whereas,
the complainant had filled the cheque for Rs.15,00,000/- and presented it for
collection. He would further submit that the complainant had not proved his
source of income and the Trial Court, had dismissed the petition. Learned
counsel for the petitioners would further submit that during the pendency of
the Appeal, at the request of the petitioners, the matter was referred to
mediation and to show the bonafide, the petitioners were asked to pay a sum
of Rs.5,00,000/- to the respondent/complainant by an order dated
08.12.2020. Pursuant to the order passed by this Court on 08.12.2020, the
petitioners had paid a sum of Rs.5,00,000/- by way of Demand Draft dated
21.12.2020 and he would submit that the Respondent has also filed a civil
suit and obtained a decree.
5. Per contra, Ms.V.Aishwarya, learned counsel appearing for the
respondent would submit that respondent/complainant had proved his case
beyond all reasonable doubts and the petitioners/accused neither denied the
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Crl.R.C.No.878 of 2020
issuance of cheque not denied the signature in the cheque. The accused had
admitted to have received a sum of Rs.12,00,000/- from the complainant.
The Courts below rightly finding that the complainant had proved the case
beyond all reasonable doubts had found the accused guilty for the offence
and convicted as stated above. She would further submit that the accused
had not rebutted the presumptions by letting in any evidence.
6. Before adverting to the rival submissions, it is necessary to
substantiate the principle that while exercising Revisional jurisdiction
involving concurrent finding at two Courts below, the High Court cannot
act as a second appellate Court [See State of Maharashtra Vs. Jagmohan
Singh Kuldip Singh Anand and Others, etc. (2004) 7 SCC 659]. Very
recently, in Bir Singh Vs. Mukesh Kumar [(2019) 4 SCC 197], the Supreme
Court has held as under:
"17. As held by this Court in Southern Sales & Services v.
Sauermilch Design and Handels GmbH [Southern Sales &
Services v. Sauermilch Design and Handels GmbH, (2008)
14 SCC 457], it is a well established principle of law that
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the Revisional Court will not interfere even if a wrong
order is passed by a court having jurisdiction, in the
absence of a jurisdictional error.....
(emphasis supplied)
7. In the present case, the second petitioner as Managing Director of
the first petitioner Company had borrowed a sum of Rs.15,00,000/- from the
complainant on 10.04.2014. In support of the same, the accused had
executed a promissory note/Ex.P1 agreeing to repay the amount with
interest for 12% percent per annum. The accused after receiving the amount
had not repaid the principal or interest and when demanded, had inorder to
discharge the liability had issued the cheque/Ex.P2 dated 14.05.2015 along
with the covering letter/Ex.P4 dated 14.05.2015. The cheque had been
presented for collection on 15.05.2015 and the cheque had been returned
with a memo/Ex.P3 dated 27.05.2015. After issuing statutory notice, the
complaint has been filed.
8. Admittedly, it is the case of the petitioners/accused that the cheque
was issued towards the security for a sum of Rs,12,00,000/- borrowed from
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Crl.R.C.No.878 of 2020
the complainant and the complainant had filled the cheque for a sum of
Rs.15,00,000/-. Though the accused had questioned the financial capacity,
he has not rebutted the presumption passed under Section 139 of Negotiable
Instruments Act. The Courts below disbelieved the accused and finding that
the accused had not sent any reply to the statutory notice and the
complainant had proved his case and had found the accused guilty.
9. At this juncture, it is useful to refer to the decision of the Hon'ble
Apex Court in the case of Bir Singh Vs. Mukesh Kumar reported in
[(2019) 4 SCC 197], has held as under:
''33. A meaningful reading of the provisions of the
Negotiable Instruments Act including, in
particular,Sections 20, 87 and 139, makes it amply clear
that a person who signs a cheque and makes it over to the
payee remains liable unless he adduces evidence to rebut
the presumption that the cheque had been issued for
payment of a debt or in discharge of a liability. It is
immaterial that the cheque may have been filled in by any
person other than the drawer, if the cheque is duly signed
by the drawer. If the cheque is otherwise valid, the penal
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Crl.R.C.No.878 of 2020
provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented
to a payee, towards some payment, the payee may fill up
the amount and other particulars. This in itself would not
invalidate the cheque. The onus would still be on the
accused to prove that the cheque was not in discharge of a
debt or liability by adducing evidence.
35. It is not the case of the respondent-accused that
he either signed the cheque or parted with it under any
threat or coercion. Nor is it the case of the respondent-
accused that the unfilled signed cheque had been stolen.
The existence of a fiduciary relationship between the
payee of a cheque and its drawer, would not disentitle the
payee to the benefit of the presumption under Section 139
of the Negotiable Instruments Act, in the absence of
evidence of exercise of undue influence or coercion. The
second question is also answered in the negative.
36. Even a blank cheque leaf, voluntarily signed and
handed over by the accused, which is towards some
payment, would attract presumption under Section 139 of
the Negotiable Instruments Act, in the absence of any
cogent evidence to show that the cheque was not issued in
discharge of a debt.''
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Crl.R.C.No.878 of 2020
10. The above view in Bir Singh cited supra has been approved by the
Three Judges bench of Hon'ble Apex Court in the case of Kalamani Tex
and Another Vs. P.Balasubramanian reported in (2021) 5 SCC 283.
11. It is well settled that the presumption mandated under Section 139
of N.I.Act includes presumption of existence of a legally enforceable debt
or other liability, but at the same time, it should not be forgotten that the
presumption contemplated under Section 139 of N.I. Act is a rebuttable
presumption and that in every criminal case, the accused is to be proved
guilty of offence either by leading positive evidence or by evidence in the
form of presumption. In so far as the presumption contemplated under
Section 138 of N.I.Act, it has been made clear by the Hon’ble Apex Court
that the presumption under Section 139 of N.I.Act is a rebuttable
presumption only when it is rebutted by the accused. Though the accused
can discharge the burden under Section 139 of the NI Act by preponderance
of probability as held by the Supreme Court in Rangappa Vs Sri Mohan
[2010 (4) CTC 118], in this case on hand, the accused has not done the same
and he has not rebutted the presumption under Section 139 of N.I.Act and
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Crl.R.C.No.878 of 2020
thereby, the Courts below have rightly found the accused guilty and
convicted him. Therefore, this Court does not find any infirmity or illegality
or perversity in the findings of the facts arrived by the Courts below,
warranting interference.
12. Further in this case, during the pendency of the case, the matter
had been sent for mediation and the petitioners had repaid the amount of
Rs.5,00,000/- to the complainant and it has also been acknowledged by the
complainant.
13. In this result, the Revision stands dismissed. The conviction of the
petitioner under 138 Negotiable Instruments Act is confirmed. Taking into
consideration, the petitioner/accused had paid the amount of Rs.5,00,000/-
to the complainant during mediation, the sentence is modified to a sum of
Rs.10,00,000/- which shall be paid as compensation to the
respondent/complainant within a period of six weeks from the date of
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Crl.R.C.No.878 of 2020
A.D.JAGADISH CHANDIRA, J.
ham
receipt of a copy of this order, failing which the sentence of imprisonment
of six months as imposed by the Courts below shall stand revived.
31.01.2022
Index: Yes/No.
Internet: Yes/No.
ham
To
1. The III Additional District and Sessions Judge,
Coimbatore.
2. The Judicial Magistrate, Fast Track Court,
at Magisterial Level-I,
Coimbatore .
Crl.R.C.No.878 of 2020
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