Madras High Court

G.Thenmozhi vs N.Subramanian on 6 January, 2022

                                                                               Crl.R.C.No.1561 of 2016



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 06.01.2022

                                                        CORAM

                                    THE HON'BLE Ms. JUSTICE R.N.MANJULA

                                               Crl.R.C.No.1561 of 2016
                                        and Crl.MP.Nos.12808 & 12809 of 2016

                G.Thenmozhi                                           ... Petitioner/Appellant
                                                         Vs.
                N.Subramanian                                          ... Respondent/Complainant

                          Criminal Revision Case filed under Section 397 and 401 of Cr.P.C.,
                against the order of Principal Sessions Judge, Namakkal in C.A.No.46 of 2015
                dated 01.09.2016 against the judgment of the learned Judicial Magistrate (Fast
                Track Court) at Tiruchengode in S.T.C.No.128 of 2015 dated 05.11.2015
                confirming the conviction and sentence imposed by the Judicial Magistrate
                (Fast Track Court), Tiruchengode for the offence under Section 138 of N.I. Act.
                                       For Petitioner    : Mr.C.D.Johnson

                                       For Respondent    : Mr.A.Sundaravadhanan

                                                        ORDER

This Criminal Revision Case has been filed challenging the judgment of

the learned Principal Sessions Judge, Namakkal dated 01.09.2016 passed in

CA.No.46 of 2015 which confirmed the judgment of the learned Judicial

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

Crl.R.C.No.1561 of 2016

Magistrate (Fast Track Court), Tiruchengode dated 05.11.2015 passed in

STC.No.128 of 2015.

2. This case has arisen out of a private complaint given by the respondent

under Section 138 of Negotiable Instruments Act. The allegation of the

complainant is that the petitioner/accused had borrowed a loan of Rs.2,00,000/-

from the respondent for his urgent financial commitments and he issued the

following cheques:-

S.No. Amount Date Bank

1. Rs.1,00,000/- 02.03.2015 Lakshmi Vilas Bank Ltd., Pallipalayam Branch, Erode – 6.

2. Rs.20,000/- 06.03.2015 Lakshmi Vilas Bank Ltd., Pallipalayam Branch, Erode – 6.

3. Rs.30,000/- 09.03.2015 City Union Bank Ltd., Pallipalayam Branch, Erode – 6.

4. Rs.30,000/- 11.03.2015 City Union Bank Ltd., Pallipalayam Branch, Erode – 6.

5. Rs.20,000/- 14.03.2015 City Union Bank Ltd., Pallipalayam Branch, Erode – 6.

3. When these cheques were presented for collection on 23.03.2015, they

have been returned for the reason 'funds not sufficient'. After issuing statutory

notice on 08.04.2015 and after receiving the legal notice dated 11.04.2015, the

complainant has filed the private complaint against the accused for the offence

committed under Section 138 of N.I. Act. When the accused was questioned,

he pleaded innocence and hence, the trial was conducted.

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

Crl.R.C.No.1561 of 2016

4. On the side of the complainant, one witness was examined was P.W.1

and Exs.P1 to P14 were marked. On the side of the accused, two witnesses

were examined as D.W.1 & D.W.2. and one document was marked as Ex.D1.

5. At the conclusion of the trial and on considering the evidence

available on records, the learned trial Judge found the accused guilty for the

offence under Section 138 of N.I. Act and convicted and sentenced him to

undergo Six Months Simple Imprisonment and imposed a fine of Rs.5,000/- in

default to undergo One Month Simple Imprisonment. Challenging the same,

the accused preferred an appeal before the Principal Sessions Court in

CA.No.46 of 2015 and the same was also dismissed on 01.09.2016. Aggrieved

over that, the petitioner/accused has filed this present revision case.

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

the respondent.

7. The learned counsel for the petitioner submitted that the case itself is

not maintainable for the reason that five transactions have been clubbed

together in one complaint and it is barred under Section 219 Cr.P.C. He has

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

Crl.R.C.No.1561 of 2016

further submitted that the cheque itself was not issued by the petitioner/accused

to the complainant; the petitioner/accused borrowed a loan of a sum of

Rs.50,000/- from the mother of the respondent and for which he gave a blank

cheque as security and that has been later misused by the

respondent/complainant for the purpose of this case; the learned trial Judge and

the First Appellate Judge have not appreciated the evidence in a proper

perspective and proceeded to find the accused guilty and hence, the judgment

of the Lower Appellate Court should be reversed.

8. The learned counsel for the respondent/complainant submitted that

Section 219 Cr.P.C. is not applicable to the proceedings taken under Section

138 of N.I. Act and it will be governed by Section 220 (1) Cr.P.C. Hence, it

cannot be said that the complaint itself is illegal. In support of his above

contention, the learned counsel cited the decision reported in '2006 (5) CTC

303' in the case of 'Manjula Vs. Colgate Palmolive (India) Limited' and 'IV

(2004) BC 346' in the case of 'Suryakant V.Kanakia Vs. V.Muthukumaran'.

It is further submitted that the Courts below have appreciated the evidence in a

proper perspective by giving initial presumption in favour of the respondent

and hence, there is no factual or legal infirmity.

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

Crl.R.C.No.1561 of 2016

9. Point for consideration :-

Whether the conviction and sentence of the accused for the offence under

Section 138 of the Negotiable Instruments Act by the learned Judicial

Magistrate (Fast Track Court) based on the materials available on record is

fair and proper?

10. The issuance of the cheque is not disputed. The only contention of

the petitioner/accused is that the cheque was not issued by him to the

respondent but it was issued as a security for the loan amount availed by him

from the mother of the complainant prior to the complaint.

11. On the side of the defence, the mother of the respondent herself was

examined as P.W.2 and she has denied about receiving cheques from the

accused by advancing a loan of Rs.50,000/- to him. The learned trial Judge has

made an observation that the petitioner/accused has not stated the said point

while he was questioned under Section 313 Cr.P.C. When the execution of the

cheque is not denied, the holder of the cheque will get the benefit of initial

presumption under Section 139 r/w 138 of N.I. Act in his favour. The initial

presumption has to be drawn to the effect that the cheque has been issued for a

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

Crl.R.C.No.1561 of 2016

legally enforceable debt or liability. However, it is up to the accused to

disprove the same by way of giving rebuttal proof.

12. In the case in hand, the petitioner/accused did not dispute his

signature on the cheque. Hence, the complainant, who is the holder of the

cheque can get the initial presumption under Section 139 of N.I. Act. For the

purpose of rebutting the initial presumption, the petitioner/accused had

examined himself and the mother of the respondent/complainant. The mother

of the complainant was examined as P.W.2 and she stoutly denied about the

alleged transaction between herself and the accused. Apart from the above

weak evidence, there is nothing available on record to demolish the initial

presumption that is granted in favour of the respondent/complainant. Under

such circumstances, the initial presumption coupled with the substantive and

documentary evidence produced before this Court would become conclusive

proof in favour of the respondent/complainant.

13. The loan amount has been given to the petitioner on 25.09.2014.

Only towards discharging the said loan, all the five cheques have been given by

the petitioner/accused and they have been presented for collection in one and

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

Crl.R.C.No.1561 of 2016

the same date. Despite five cheques have been issued and all the five cheques

have been put for collection, the facts remains that all the five cheques arise out

of the same transaction. In the earlier judgment of the Division Bench of this

Court reported in '2006 (5) CTC 303' in the case of 'Manjula Vs. Colgate

Palmolive (India) Limited', it is held that if the cheques have been issued for

the same transaction and if they are bounced for wants of funds, the

complainant can maintain one complaint for return of all the cheques. The

relevant portions of the judgment are extracted as under:-

....... “15. In these circumstances, we hold that Section 219(1), Cr.P.C. permits joinder of all charges provided they are offences of the same kind. We are also of the view that the number of transactions and the cheques issued prior to the issuance of the statutory notice under Section 138(b) of the Act could at best be considered as bundle of facts giving rise to a cause of action and that it is not a ground to quash the criminal proceedings against the drawer of the cheques. We further hold that if the offences are of the same kind, the number of transactions between the parties which culminated into issuance of the statutory notice is no ground to urge that under Section 219, Cr.P.C., the prosecution laid against the petitioner is not maintainable.

16. In the case on hand, though the act of issuance of 16 cheques was on different dates, in view of the fact that a demand

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

Crl.R.C.No.1561 of 2016

was made by issuing a common notice, the complaint cannot be said to be vitiated. To put it clear, though the giving of cheques by the accused to the complainant may be on different dates, all those acts of giving those cheques were merged together to form the same transaction viz., the presentation of the cheques together was on one particular date. In view of the fact that demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands, we are of the view that the accused may be charged and tried at one trial for several such offences because the series of acts are so inter-linked or inter-connected together so as to form the same transaction of dishonouring the cheques, therefore, it cannot be said that the complaint is vitiated.”

14. On the same point, in the another judgment of this Court in the case

of 'Suryakant V.Kanakia Vs. V.Muthukumaran' reported in 'IV (2004) BC

346', it is clarified that if one see these facts connected together so as to form

the same transaction and more than one offences are committed by the same

person, he should be charged and tried at one trial for every such offence. The

relevant paragraph No.13 is extracted hereunder:-

..... “13. Section 220 (1) of Cr.P.C. states that if one series of acts so connected together as to form the same transaction, more

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

Crl.R.C.No.1561 of 2016

offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence. In the present case though the giving of eleven cheques by the accused / petitioner to the complainant / respondent may be on different dates but all those acts of giving these cheques were merged together to form the same transaction viz., the presentation of these cheques together on one particular day as requested by the petitioner / accused herein. In otherwords even though different cheques were given on different dates, the presentation of all these cheques formed the same transaction. Further the Appellant also made the demand on the dishonouring of the cheques by issuing one lawyer's notice (Ex.A.3) and not several demands made for the payment of the dishonoured cheques. Held, therefore, that the petitioner / accused herein may be charged and tried at one trial for several such offences because the series of acts are so interlinked or inter-connected together so as to form the same transaction of dishonouring the cheques on a single day. Thus, single complaint lodged is well maintainable in cases where the cheques were issued within a period of one year and where there is single presentation of the cheques and dishonour of the cheques with the same endorsement in or about the same time and issuance of one single notice. In fact, such filing of single complaint prevents multiplicity of proceedings saving the time of the Court. It is advantageous not only to the Complainant but also to the Accused.”

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

Crl.R.C.No.1561 of 2016

15. The position of law on the point of presenting a single complaint for

the offence of dishonouring of cheque committed in pursuance of the same

transaction, is now well settled. Hence, it cannot be contended that the

complaint itself is not maintainable in view of more than three return of

cheques have been clubbed together in a single complaint. The Courts below

have rightly appreciated the facts and law and in my view, it does not suffer

from any factual or legal infirmity so as to warrant my interference.

In the result, this Criminal Revision Case is dismissed and the judgment

dated 01.09.2016 of the learned Principal Sessions Judge, Namakkal passed in

CA.No.46 of 2015 is confirmed. Connected criminal miscellaneous petitions