Hayagriva Cargo Movers Pvt. Ltd vs R.Selvarajan
2022 Latest Caselaw 1415 Mad

                                                                               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
                                                               ****
                                                             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.

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

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

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