S.Mukanchand Bothra (Died) vs R.K.Productions Private Ltd
2022 Latest Caselaw 12140 Mad

                                                                            Crl.A.No.330 of 2015



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Dated : 07.07.2022

                                                    CORAM :

                                  THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN

                                               Crl.A.No.330 of 2015

                     S.Mukanchand Bothra (died)
                     M.Gagan Bothra
                     S/o.Late Shri S.Mukanchand Bothra
                     (This Court permit the petitioner to prosecute
                     the appeal on behalf of the deceased appellant
                     as per order dated 12.07.2019
                     made in Crl.MP.No.8838 of 2019)                       .. Appellant

                                                        Vs.


                     1. R.K.Productions Private Ltd.,
                        Rep by its Director R.Krishnamurthy
                        @ Kasthoori Raja

                     2. R.Krishnamurthy @ Kasthoori Raja                 ..Respondents


                     PRAYER : Criminal Appeal has been filed under section 378(4) of
                     Criminal Procedure Code to call for the entire records pertaining to the
                     Judgment passed by the learned 4th Fast Track Court Magistrate, George
                     Town, Chennai in C.C.No.473 of 2013 dated 11.05.2015 and to set aside
                     the same.




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https://www.mhc.tn.gov.in/judis
                                                                                    Crl.A.No.330 of 2015



                                        For Appellant     :       Mr.Gagan Bothra
                                                                  (Party-in-Person)
                                        For Respondents :         Mr.Haja Mohideen Gisthi

                                                        JUDGMENT

Heard Mr.Gagan Bothra, the appellant appearing as Party in Person

and Mr.Haja Mohideen Gisthi, the learned counsel for the

respondent/accused.

2. This appeal is filed by the complainant being aggrieved by the

dismissal of his private complaint filed under Section 138 of Negotiable

Instruments Act.

3. The complaint dated 20.11.2011 filed by one S.Mukanchand

Bothra reads as below:

“(i) The first accused is RK Productions Private Limited

represented by its Director. The second accused viz.,

Krishnamurthy @ Kasthoori Raja as Director of the first

accused company borrowed a sum of Rs.65,00,000/- from the

https://www.mhc.tn.gov.in/judis Crl.A.No.330 of 2015

complainant for his business as well as for individual and

family purpose. He claimed himself as a relative of famous

Cine Stars and personalities and believing his representation

that he has capacity to repay the money, sum of

Rs.65,00,000/- was given as loan to the second accused. Two

promissory notes dated 01.01.2021 and 13.07.2021 for

Rs.40 lakhs and for Rs.25 lakhs respectively were executed by

the accused. Thereafter, on repeated requests and remainders

to re-pay the loan, the second accused issued the cheque dated

15.09.2012 from the account maintained by his company by

name RK.Production Private Limited in State Bank of

Mysore, for Rs.40,00,000/- as part payment towards the

discharge of the liability and the due payable to the

complainant and his family members. When the said cheque

was presented for encashment, the cheque was returned on the

ground of insufficient funds.

https://www.mhc.tn.gov.in/judis Crl.A.No.330 of 2015

(ii) The statutory notice was issued to the accused

calling upon him to pay Rs.40,00,000/- covered under the

cheque which was dishonoured. The said statutory notice was

received by the accused on 16.10.2012 and for that reply was

issued by the accused on 19.10.2012. Therefore, the private

complaint filed to enquire the matter and convict the accused

to the maximum sentence and directs the accused to pay

double the cheque amount as compensation”.

4. In the complaint, the memo of calculation furnished as below:

“ (i) On behalf of the complainant, his son Gagan

Bothra as his power agent mounted the witness box and

deposed. He marked seven exhibits. In the cross examination,

4 documents were marked on behalf of the accused. The trial

court weighed the evidence placed by the complainant and the

evidence placed by the accused to rebut the presumption.

Taking note of the fact that P.W.1 was examined on behalf of

the complainant but he was not able to tell the date on which

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the cheque was received and admits that the blank cheque was

received from the accused persons. The pronotes relied by the

complainant marked as Ex.P.5 and Ex.P.6 indicate that the

second accused has borrowed a sum of Rs.40,00,000/- on

02.01.2012 and Rs.25,00,000/- on 13.07.2012 for his family

purpose and for the production company from S.Mukanchand

Bothra and family. The pronotes does not indicate who infact

from Bothra family advanced the money and whom the

accused promised to repay the money. This doubt has been

raised by the trial court since in the cross-examination of

P.W.1, there has been certain facts elucidated that the

complainant's family does not form part of HUF and each of

the family members have their own separate accounts and file

separate income tax returns. For the said reasons and

considering the defence documents which rebutted the

presumption by preponderance of probability, the trial Court

dismissed the complaint.

https://www.mhc.tn.gov.in/judis Crl.A.No.330 of 2015

(ii) Aggrieved by the dismissal, the complainant, has

preferred the appeal against the acquittal. Pending appeal, the

complainant S.Mukanchand Bothra died and therefore, his

son Gagan Bothra has got himself impleaded and he as party-

in-person appeared before this Court and made his

submissions” .

5. According to the appellant, the trial court went wrong in

concluding that two pronotes were executed on the same day and erred in

concluding that the complainant failed to prove the source of income to

advance such a huge amount during the relevant point of time. The Court

failed to consider that on the date of presentation of the cheque there

existed liability towards the discharge of the legally enforceable debt

which is fully supported by Ex.P.5 and P.6 which are pronotes executed

by the second accused. The Court below erred in accepting the plea of

the accused that the act of the complainant falls within the purview of the

Money Lending Act and without licence, he is alleged to have lent

money for exorbitant rate of interest. Further, the appellant has contended

https://www.mhc.tn.gov.in/judis Crl.A.No.330 of 2015

that the trial court erred in observing that the pronotes marked as Exs.P.5

and P.6 are not attested by any witness, therefore, it cannot be relied

upon. Law does not mandate attestation by witnesses for a pronote.

Therefore, the trail court Judgment is liable to be setaside.

6. Per contra, the learned counsel appearing for the

respondent/accused justifying the judgment of the trial court would

submit that the complainant is in the habit of receiving blank cheques

and pronotes while advancing loan to the movie makers and filing cases

demanding huge sum of money. In the instant case, for a sum of

Rs.10,00,000/- advanced earlier blank pronotes and three cheques were

obtained by the complainant from the accused. Inspite of discharge of the

said loan, the complainant misused the cheque to file the present

complaint. Infact the accused has filed a civil suit for mandatory

injunction directing the complainant herein S.Mukanchand Bothra to

return all the documents after duly cancelling the cheque. Having

rebutted the statutory presumption of existing legally enforceable debt,

the documents produced by the complainant and marked as exhibits do

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not disclose any proof of existing liability. Further the counsel submitted

that the complaint and the statutory notice are not in consonance with

provisions of law under Section 138 of N.I.Act which enables the drawer

to seek only the cheque amount and not legal expenses and other

expenses. Whereas in this complaint for alleged dishonour of cheque of

Rs.40,00,000/-. The memo of calculation indicates that Rs.1,20,43,100/-

sought to be recovered. By demanding more and above the cheque

amount, the tenor of the complaint has fallen away from Section 138 of

NI Act. If at all he has any right to demand more and above the cheque

amount it can be only by way of suit for recovery of money and not a

private criminal complaint. Further, it is also contended that in the

absence of any proof for his source of income or source of money while

the Income Tax Act mandates money transaction over and above

Rs.25,000/- must be only by way of bank transfer, the huge amount of

Rs.65,00,000/- could not have been given as cash without any record.

7. This Court on considering the rival submissions finds that the

complainant to prove existing debt has relied upon two pronotes which

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are marked as Exs.P.5 and P.6. In this case, these two pronotes are signed

by the second accused namely Kasthoori Raja. The first pronote is dated

02.01.2012 for Rs.40,00,000/- and the second pronote is dated

13.07.2012 for Rs.25,00,000/-. The lender is S.Mukanchand Bothra and

his family. The cheque which is the subject matter of the complaint is

marked as Ex.P.1. It is dated 15.09.2012. The complainant has also relied

upon yet another letter dated 13.07.2012 purportedly written by the

accused in which he has acknowledged the receipt of Rs.65,00,000/- as

loan. Admitting a sum of Rs.65,00,000/- was received by him on various

occasions and he has executed pronotes and he will always indebted fo

his timely held.

8. PW.1 in the cross-examination, candidly admits that except the

signatures, all other entries were made by him and it is also admitted by

him that he is not aware of the date on which these documents were

handed over to the complainant. In the said circumstances, misusing the

blank cheque given for the earlier loan transaction with the complainant

gets probablised. The accused thereby has rebutted the statutory

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presumption. When the statutory presumption is rebutted by the accused,

the burden of proof shifts again on the complainant not only the

fundamental facts but beyond that to establish the money transaction by

other cogent and admissible evidence.

9. PW1 admits that there was earlier money transaction with the

second accused, the said loan was discharged by the second accused

before the present transaction took place. The proof or admission of

signature in the cheque may by itself be sufficient and court need not go

for any proof for the source but, in this case from the cross examination

of PW1, this Court finds that the complainant and his family members

are professional money lenders and they are income tax assessese and

maintain separate Books of Accounts with the assistance of Auditor.

While so by holding blank signed cheque and pronotes, filling it up the

figure of the choice will not Ipso facto give an advantage to them to

presume that the cheques and pronotes were issued to them for any

existing enforcible liability. Apart from the two documents which are

admittedly given to them as blank cheques. There must be some

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corroboratory evidence to substantiate the claim. Out of seven exhibits

marked by the complainant, this Court is unable to find any piece of

evidence which will indicate that there was any transaction on the

alleged date and for discharging the said debt, the subject cheque was

given to the complainant.

10. Hence, this Court finds that when the trial court for reasons

assigned has found the accused not guilty of offence under Section 138

of NI Act and the reasoning given by the trial court is a probable reason,

there need not be any reversal of the said findings. This court also in

addition to reasons stated by the trial court, hold that the presumption

under Section 138 of NI Act cannot be pitted against the drawer, when

the drawer is able to establish the preponderance of probability that the

cheque had been given to the complainant on different context as security

and not for the liability alleged in the complaint. Further, the cheque is

Rs.40 lakhs given to discharge the loan borrowed against pronote. The

Complainant, a business man and income tax assessee maintaining his

accounts. While so, when the receipt of money is denied, particularly

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when the amount runs to lakhs of rupees, the evidence to prove the fact

of lending money cannot be presumed merely because the complainant

is in possession of blank signed cheque. Particularly when the amount is

huge and the lender and borrower are professional money lender and

film Maker respectively and when by preponderance of probability it is

proved that the parties had money transaction even earlier to this

transaction. The respondent/complainant by preponderance of probability

had rebutted the presumption therefore the dictum laid in Rangappa -Vs-

Sri Mohan (2010 (11) SCC 441) or the Judgment of this Court in

Anbarasu-Vs-Mukanchand Bothra (Crl RC 870 to 872 of 2017) will not

apply to the facts of this case. For the reasons stated above, this Court

finds no merits in the appeal to interfere.

11. Accordingly, this Criminal Appeal is dismissed.

07.07.2022

Internet : Yes/No Index: Yes/No Vv

https://www.mhc.tn.gov.in/judis Crl.A.No.330 of 2015

To

The Fast Track Court Magistrate-IV, George Town, Chennai.

https://www.mhc.tn.gov.in/judis Crl.A.No.330 of 2015

Dr.G.JAYACHANDRAN, J.

Vv

Crl.A.No.330 of 2015

07.07.2022

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